J-S58024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

THOMAS EUGENE SKARIOT,

                            Appellant                 No. 235 WDA 2014


             Appeal from the PCRA Order Entered January 6, 2014
             In the Court of Common Pleas of Washington County
             Criminal Division at No(s): CP-63-CR-0000584-2011


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 23, 2014

        Appellant, Thomas Eugene Skariot, appeals pro se from the trial



the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.             After

careful review, we are compelled to vacate that order and remand for the

appointment of new counsel.



entered a negotiated guilty plea on February 2, 2012, to the charge of



offense as follows:

             The Affidavit of Probable Cause avers that an officer of the
        Pennsylvania State Police was dispatched to a residence located
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S58024-14


      in East Bethlehem Township for a report of a burglary and
      aggravated assault on January 13, 2011. He questioned the
      victim, Kenneth James Axton, while he was being treated for
      injuries. Axton informed the officer that he was sleeping on a

      wooden baseball bat. Axton knew [] Appellant, and had received
      a cell phone call from Appellant earlier that day. During the call,

      res
      grabbed a knife and defended himself. Axton believed that he
      had stabbed [] Appellant. During the fight, Appellant obtained
      the knife from the victim, and Appellant used it to cut the hands
      of Axton. The arresting officer observed multiple lacerations and


PCRA Court Opinion (PCO), 4/4/14, at 1-2 (citations to the record omitted).

      On the same day Appellant pled guilty to aggravated assault, he was

sentenc



the Recidivism Risk Reduction Incentive (RRRI) program. Appellant did not

file post-sentence motions or a direct appeal.

      However, on October 5, 2012, Appellant filed a pro se PCRA petition

presenting twenty claims, most of which involved allegations of ineffective

assistance of trial counsel. Counsel was appointed, but rather than file an

amended PCRA petition, c                                               -

letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998),

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).                  On

                                                                            filed



Appellant filed a timely pro se response on November 1, 2013, averring that



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his PCRA counsel was ineffective for filing an inadequate Turner/Finley no-

merit letter.

      On January 6, 2014, the PCRA court issued an order dismissing




can occur when inmates mail documents from

PCO at 2 n.3 (citing Commonwealth v. Cooper, 710 A.2d 76, 78 (Pa.



filed by prisoners proceeding pro se



omitted)). While the PCRA court did not order Appellant to file a Pa.R.A.P.

1925(b) statement, it filed a Rule 1925(a) opinion on April 4, 2014.

      On appeal, Appellant raises the following four questions for our review:

      1.) Was trial counsel ineffective, and [did he] demonstrate an
      abandonment of Appellant by failing to raise a prima facie case,
      acquire discovery, and by forcing a plea of guilty, and [was]
      PCRA counsel ineffective for failing to fully review the case and

      based on facts?

      2.) Was the plea of guilty coerced by counsel to cover up the
      abandonment of Appellant?

      3.) Is Appellant factually innocent of the charge of aggravated
      assault?

      4.) Was the trial court biased, and [did it] commit misconduct
      when a pre-formed judgement [sic] about the case was
      commented upon by the trial judge?




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                         1




or denial of post-conviction relief is limited to examining whether the lower



                             Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.

1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa.

1995)).



PCRA attorney rendered ineffective representation.

        [A] PCRA petitioner will be granted relief only when he proves,
        by a preponderance of the evidence, that his conviction or

        which, in the circumstances of the particular case, so
        undermined the truth-determining process that no reliable


        constitutionally adequate, and counsel will only be deemed
        ineffective upon a sufficient showing by the petitioner. To obtain

        was deficient and that the deficiency prejudiced the petitioner. A

        there is a reasonable probability that,
        unprofessional errors, the result of the proceeding would have

        posits that: (1) the underlying legal issue has arguable merit;
                                                         ble basis; and

        omission.



____________________________________________


1
    We note that the Commonwealth has not filed a brief in this case.



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J-S58024-14



Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations

omitted).

       W

                          Appellant     is     entitled   to   competent   and   diligent

                                                                   Commonwealth v.

Perry, 959 A.2d 932, 936 (Pa. Super. 2008) (citations omitted). Appellant



Turner/Finley no-

                                                                                    -12.



of the reco
                            2
                                Id.

       In Turner

for the withdrawal of court-appointed counsel in collateral attacks on

criminal convictions[.]          Turner, 544 A.2d at 927.              The traditional
____________________________________________


2
  Appellant
his timely-
dismiss.    Thus, his claims are preserved for our review.        See
Commonwealth v. Pitts, 981 A.2d 875, 879 (Pa. 2009) (indicating that a


petition to withdraw); Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.
Super. 2014) (concluding that under Pennsylvania Supreme Court




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requirements for proper withdrawal of PCRA counsel, originally set forth in

Finley, were updated by this Court in Commonwealth v. Friend, 896 A.2d

607 (Pa. Super. 2006), abrogated by Commonwealth v. Pitts, 981 A.2d

875 (Pa. 2009), which provides:

     (1) As part of an application to withdraw as counsel, PCRA
                                             -

                                      -
     the petitioner wishes to have reviewed, and detail the nature
     and extent of counsel's review of the merits of each of those
     claims[;]

                                                     -
     explanation of why the petitioner's issues are meritless[;]

     4) PCRA counsel must contemporaneously forward to the
     petitioner a copy of the application to withdraw, which must
                                            -
     statement advising the PCRA petitioner that, in the event the
     trial court grants the application of counsel to withdraw, the
     petitioner has the right to proceed pro se, or with the assistance
     of privately retained counsel;

     5) the court must conduct its own independent review of the
     record in the light of the PCRA petition and the issues set forth
     therein, as well as of the contents of the petition of PCRA
     counsel to withdraw; and

     6) the court must agree with counsel that the petition is
     meritless.

Friend

petitioner determines that the issues raised under

and the PC[R]A court concurs, counsel will be permitted to withdraw and the

petitioner may proceed on his own or with the aid of private counsel to



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                                                                 Finley, 550

A.2d at 215.

      Here, it is apparent from our review of the record that in PCRA

         Turner/Finley letter, she failed to address all of the issues raised

by Appellant in his pro se PCRA petition. In that petition, Appellant raised

seventeen claims of trial

constitutional rights were violated during the investigation in this case; an

allegation that the Commonwealth withheld exculpatory evidence in violation

of Brady v. Maryland, 373 U.S. 83 (1963); and a claim that the trial judge



Turner/Finley no-merit letter, she did not set forth any of these specific



PCRA petition] that he is eligible for relief due to a violation of the

Constitution or laws, ineffective assistance of counsel, a plea of guilty

unlawfully induced, and the unavailability at the time of trial of exculpatory

                                        at 2 (unnumbered pages). Counsel

then stated:

           To establish that a guilty plea was unlawfully induced as
      the result of ineffective assistance of counsel, the defendant

      the guilty plea. The transcripts of the [p]lea and sentencing
      proceedings held on February 7, 2012[,] show the presiding
      Judge formally asked [Appellant] on the record if he had a
      chance to review matters with his attorney and if [Appellant]
                                             lanation of his rights  to
      which [Appellant] replied in the affirmative. The [g]uilty [p]lea


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     plea of guilty on the charge of Aggravated Assault (F2) and
     represents that I do this knowingly,
     His attorney was present at all times.

Id. (citations omitted).   Counsel closed her no-merit letter by noting that



                                               uld, or even might, entitle

                                                       Id.



individual trial counsel ineffectiveness claims were sufficient, she omitted

any discussion of his other three issues. Thus, we agree with Appellant that

                  -merit letter was inadequate in this regard and, as such,

counsel should not have been permitted to withdraw. See Friend, 896 A.2d

at 615; Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)



Turner/Finley, the court will not reach the merits of the underlying claims



omitted).

                                                                       -merit



                                    pro se petition, he averred that his trial

counsel coerced him into entering a guilty plea in the moments before trial



                                                      Pro Se PCRA Petition,

10/5/12, at 10 (page unnumbered).          Appellant also asserted that he


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J-S58024-14



repeatedly told his trial counsel that he was innocent, yet counsel



                                                     Id. In essence, Appellant

argued that his guilty plea was involuntary, unknowing, and/or unintelligent



legal advice.

      Initially, we note that it is impossible on this record to verify - or dispel

-                                                           prior to his pleading

guilty.   Furthermore, in concluding that this claim is meritless, both PCRA



the guilty plea colloquy. See PCO at 4-5. That colloquy amounted to the

following:

      The Court: Have you had a chance to review matters with [your
      trial counsel]?

      [Appellant]: Yes.

      The Court: Are you satisfied with his explanation of those rights?

      [Appellant]: Yes.

N.T. Guilty Plea, 2/7/12, at 2.      The court then discussed the terms of

App


      to the agg [sic] assault?

      [Appellant]: Yes, sir.

      The Court: So ordered. Court will make a recommendation of
      RRRI, which means if you com
      to be released 9 months early. Any questions, [Appellant]?


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       [Appellant]: No.

Id. at 3.

       Notably, at no point during this proceeding was Appellant asked if he

understood (1) the nature of the charge to which he was pleading guilty; (2)

the factual basis underlying that charge; (3) that he has the right to proceed

to a jury trial; (4) that he is presumed innocent until found guilty; (5) the

permissible range of sentences and/or fines for the offenses charged; or (6)

that the judge was not bound by the terms of any plea agreement tendered

unless the judge accepted such agreement. See Cmnt. to Pa.R.Crim.P. 590

(indicating the minimum information the judge should elicit from a

defendant pleading guilty).        Based on the scant colloquy conducted in this

case, we cannot agree with PCRA counsel and the court that the colloquy



into pleading guilty by his trial counsel.3



____________________________________________


3

                                         a single page document, which states at


Written Guilty Plea, 3/12/13.         The document then contains a printed line

               Id. Appellant dated and signed this form, as did his counsel.
Clearly, the written plea colloquy does not verify that Appellant understood
any of the six factors set forth above. Thus, we do not agree with PCRA




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J-S58024-14



      For these reasons, we are constrained to c

Turner/Finley no-merit letter was inadequate, and the PCRA court erred by




PCRA counsel. Additionally, while we do not opine on whether Appellant will

be able to prove he is entitled to post-conviction relief based on the trial

counsel ineffectiveness claim discussed herein, that issue at least possesses

arguable merit warranting an evidentiary hearing.

      Order vacated. Case remanded for further proceedings. Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2014




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