J-S07014-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                       v.

STEPHEN EUGENE JILES

                            Appellant              No. 1063 MDA 2016


                Appeal from the PCRA Order December 10, 2015
                 In the Court of Common Pleas of York County
                           Criminal Division at No(s):
                           CP-67-CR-0002718-2009
                           CP-67-CR-0002719-2009
                           CP-67-CR-0002745-2010
                           CP-67-CR-0003039-2009



BEFORE: BOWES, LAZARUS, AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                             FILED JUNE 09, 2017

       Stephen Eugene Jiles appeals from the order denying his PCRA

petition. Appellant’s case returns to us after we remanded this matter with

directions to counsel to file a Turner/Finley1 brief addressing the issues

raised by Appellant in his original pro se PCRA petition.   For the following

reasons, we again remand this case with instructions to counsel.



____________________________________________


1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)                        and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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      We previously set forth the relevant factual and procedural history of

this matter. See Commonwealth v. Jiles, 1063 MDA 2016 (Pa.Super. filed

March 7, 2017) (unpublished memorandum) at *1-2. As is pertinent herein,

we remanded this matter with instructions to counsel to file a Turner/Finley

brief addressing the issues raised in Appellant’s original pro se PCRA

petition, or in the alternative, to file an advocate’s brief. Counsel partially

complied with our directive, filing a Turner/Finley brief and no-merit letter

addressing the majority of Appellant’s claims.

      PCRA counsel’s Turner/Finley brief directs this Court’s attention to

four issues of possible merit:

   1. Whether trial counsel, Kevin Hoffman, rendered ineffective
      assistance by failing to move for dismissal of case No. CP-67-CR-
      00[2]745-2010 based on a denial of due process and
      prosecutorial misconduct?

   2. Whether trial counsel, Kevin Hoffman, rendered ineffective
      assistance for offering erroneous advice with regard to accepting
      or rejecting a plea offered by the Commonwealth that was
      significantly less onerous than the prison time imposed following
      trial?

   3. Whether Appellant was subjected to structural error when a
      Judge who decided pre-trial motions was involved in an intimate
      relationship with the assistant district attorney, who prepared
      and submitted said motions, resulting in a denial of due process?

   4. Whether trial and direct appeal counsel, Kevin Hoffman, was
      ineffective for failing to file an application for relief in appellate
      court when he discovered that the pre-trial motions Judge was
      intimately involved with the assistance district attorney who
      prepared and submitted several pre-trial motions decided by that
      Judge?



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Turner/Finley brief, 1/23/17, at 6.

      At the outset, we must address whether counsel has met the

requirements of Turner/Finley.        The Turner/Finley decisions provide the

manner for post-conviction counsel to withdraw from representation.                  The

holdings of those cases mandate an independent review of the record by

competent counsel before a PCRA court or appellate court can authorize an

attorney’s withdrawal.     Counsel must then file a “no-merit” letter detailing

the nature and extent of her review and list each issue the petitioner wishes

to   have     examined,      explaining     why    those     issues    are    meritless.

Commonwealth v. Freeland, 106 A.3d 768, 774 (Pa.Super. 2014).

Counsel is required to contemporaneously serve upon her client her no-merit

letter and application to withdraw along with a statement that, if the court

granted counsel’s withdrawal, the client may proceed pro se or with a

privately retained attorney. Id. at 774. This Court must then conduct its

own independent evaluation of the record and agree with counsel that the

petition is meritless. Id.

      Here,    we   find   that   counsel    has   not     fully   complied   with   the

requirements of Turner/Finley. Counsel detailed her review of the record

and concluded that Appellant’s claims are meritless. She notified Appellant,

and furnished him with a copy of her no-merit letter, advising him of his

right to proceed pro se or to retain private counsel. However, in regard to

Appellant’s second issue, counsel framed Appellant’s challenge as only

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concerning trial counsel’s failure to advise him of the maximum punishment

he faced for each charge upon conviction. Although the record reveals that

Appellant raised some concern about trial counsel’s failure in this regard, the

heart of his contention relates to his assertion that trial counsel misled him

regarding the likelihood of acquittal at trial. See PCRA Petition, 3/5/14, at

unnumbered 14-15 (stating, “Instantly, [Appellant] went to trial rather than

enter the plea offered by the prosecution, a decision based on counsel’s

representation that the Commonwealth could not prove their case against

[Appellant].”). PCRA counsel did not address the merits of this claim.

      Since   PCRA   counsel   has   again   failed   to   satisfy   the   technical

prerequisites of Turner/Finley, we are constrained to deny counsel’s

request to withdraw and must again remand this matter for counsel to

amend her Turner/Finley brief and no-merit letter in order to address the

claims raised by Appellant in his 3/5/14 PCRA petition, or in the alternative,

to file an advocate’s brief, taking the necessary steps to ensure Appellant’s

issues are presented on appeal.

      Record remanded.     Counsel shall comply with the mandates of this

decision within sixty days of remand of the record. Jurisdiction retained.




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