J-S07021-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                            Appellee           :
                                               :
                   v.                          :
                                               :
    DAVID REYES                                :
                                               :
                            Appellant          :      No. 1621 EDA 2019

                  Appeal from the PCRA Order Entered May 3, 2019
                In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-51-CR-0001249-2013


BEFORE:         NICHOLS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY KING, J.:                                      Filed:May 21, 2020

        Appellant, David Reyes, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas, which denied his first petition

filed under the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-

9546. For the following reasons, we vacate and remand with instructions.

        In its opinion, the PCRA court sets forth the relevant facts and

procedural history of this case as follows:

        On January 8, 2015, a jury…convicted [Appellant] on charges of
        first-degree murder, violations of the Uniform Firearms Act, and
        possessing an instrument of crime. Immediately after entry of
        the jury’s verdict, [Appellant] was sentenced to life
        imprisonment without the possibility of parole, as well as an
        aggregate concurrent imprisonment term of eight and one-half
        (8½) to seventeen (17) years. [Appellant] filed a notice of
        appeal on February 2, 2015, and, on February 14, 2017, the
        Superior Court affirmed the judgment of sentence. On March 1,
____________________________________________
*   Retired Senior Judge assigned to the Superior Court.
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      2017, [Appellant] filed a petition for allowance of appeal to the
      Supreme Court of Pennsylvania, which was denied on August 8,
      2017.

      On March 6, 2018, a [PCRA] petition was filed by then [privately
      retained] counsel, Jack McMahon, Jr., Esquire. On March [13],
      2019, newly-appointed counsel, George S. Yacoubian, Jr., filed a
      “no-merit” letter pursuant to Pennsylvania v. Finley, 481 U.S.
      551 (1987) and Commonwealth v. Turner, 544 A.2d 927 (Pa.
      1988).

(PCRA Court Opinion, filed October 29, 2019, at 1).

      In the “no-merit” letter, appointed counsel stated he “reviewed

[Appellant’s] petition (and accompanying affidavit), docket sheet, all

relevant transcripts and attempted communication with [Appellant] via

written correspondence.”      (Turner/Finley letter, filed 3/13/19, at 1).

Counsel further stated: “I have informed [Appellant] that, in my opinion,

there is no viable PCRA claim, and that in the event his petition is dismissed

pursuant to [Turner/]Finley he will no longer be eligible for court-

appointed counsel but could represent himself or retain counsel.”         (Id.)

Although counsel copied Appellant on the Turner/Finley letter, the record

lacks any certificate of service indicating counsel provided the letter to

Appellant. Additionally, counsel did not file a separate petition to withdraw.

      On March 18, 2019, the PCRA court issued notice of its intent to

dismiss Appellant’s PCRA petition without a hearing pursuant to Pa.R.Crim.P.

907. The Rule 907 notice order demonstrates the court addressed the order

to appointed counsel and copied Appellant on it. The order, however, lacks

any certificate of service.   On March 29, 2019, Appellant filed a pro se


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motion for an extension of time to respond to the court’s Rule 907 notice. In

the motion, Appellant stated that he presumed appointed counsel no longer

represented him due to counsel’s filing of a “no-merit” letter. Consequently,

Appellant intended to proceed pro se and requested an extension of time to

obtain and review the PCRA petition and trial transcripts. Appellant filed pro

se motions for transcripts and to proceed in forma pauperis on April 23,

2019.     On April 26, 2019, Appellant filed a second pro se motion for an

extension of time, after failing to receive any documents from appointed

counsel. The PCRA court did not rule on any of Appellant’s pro se motions.

Rather, on May 3, 2019, the court issued an order dismissing Appellant’s

PCRA petition.    Significantly, the May 3rd order did not specifically permit

appointed counsel to withdraw.

        Appellant’s former privately-retained counsel filed a notice of appeal

on Appellant’s behalf, docketed at 1503 EDA 2019, on May 16, 2019. On

May 21, 2019, Appellant filed a motion in the PCRA court to discharge court-

appointed counsel and for leave to proceed pro se. The PCRA court did not

rule on this motion. On May 23, 2019, the court ordered Appellant to file a

concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.

1925(b).    Appellant filed a pro se notice of appeal, docketed at 1621 EDA

2019, on May 29, 2019, and a pro se Rule 1925(b) statement on May 31,

2019.     On June 10, 2019, Appellant filed in this Court an application for

relief, seeking to proceed pro se. This Court remanded the matter on July 2,



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2019, for a Grazier1 hearing and on August 13, 2019, the PCRA court

permitted Appellant to proceed pro se. On September 3, 2019, this Court

discontinued as duplicative the appeal at 1503 EDA 2019, initiated by

Appellant’s former privately-retained counsel.

        Appellant raises the following issues for our review:

             DID THE PCRA COURT ABUSE ITS DISCRETION IN SUA
             SPONTE REMOVING PRIVATELY RETAINED COUNSEL AND
             APPOINTING NEW PCRA COUNSEL?

             DID THE PCRA COURT ERR IN FAILING TO PROVIDE
             APPELLANT WITH NOTICE WHEN IT, SUA SPONTE,
             REMOVED    PRIVATELY  RETAINED COUNSEL  AND
             APPOINTED NEW PCRA COUNSEL?

             DID THE PCRA COURT ERR AS A MATTER OF LAW IN NOT
             GRANTING COURT APPOINTED COUNSEL’S REQUEST TO
             WITHDRAW AT THE TIME IT ISSUED ITS [RULE] 907
             NOTICE OF INTENT TO DISMISS THE PETITION BASED ON
             COUNSEL’S “NO MERIT” LETTER?

             DID THE PCRA COURT ERR AS A MATTER OF LAW AND
             DENY APPELLANT THE FUNDAMENTAL CONCEPTS OF DUE
             PROCESS IN FAILING TO RULE ON ANY OF HIS PROPERLY
             FILED PRO SE MOTIONS?

             DID THE PCRA COURT ERR IN SUMMARILY DISMISSING
             THE PCRA PETITION BASED SOLELY ON PCRA COUNSEL’S
             DEFICIENT TURNER/FINLEY “NO MERIT” LETTER WHERE
             COUNSEL MISAPPREHENDED THE ONE ISSUE OF TRIAL
             COUNSEL’S INEFFECTIVENESS RAISED IN THE PETITION?

(Appellant’s Brief at 4-5).

        Preliminarily, before counsel can be permitted to withdraw from

representing a petitioner under the PCRA, Pennsylvania law requires counsel
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1   Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).


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to file a “no-merit” brief or letter pursuant to Commonwealth v. Turner,

518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550

A.2d 213 (Pa.Super. 1988) (en banc).       Commonwealth v. Karanicolas,

836 A.2d 940 (Pa.Super. 2003).

         [C]ounsel must…submit a “no-merit” letter to the [PCRA]
         court, or brief on appeal to this Court, detailing the nature
         and extent of counsel’s diligent review of the case, listing
         the issues which the petitioner wants to have reviewed,
         explaining why and how those issues lack merit, and
         requesting permission to withdraw.

         Counsel must also send to the petitioner: (1) a copy of the
         “no-merit” letter/brief; (2) a copy of counsel’s petition to
         withdraw; and (3) a statement advising petitioner of the
         right to proceed pro se or by new counsel.

         If counsel fails to satisfy the foregoing technical
         prerequisites of Turner/Finley, the court will not reach
         the merits of the underlying claims but, rather, will merely
         deny counsel’s request to withdraw. Upon doing so, the
         court will then take appropriate steps, such as directing
         counsel to file a proper Turner/Finley request or an
         advocate’s brief.

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

citations omitted).

      Furthermore,

         [D]ue process requires the post-conviction process to be
         fundamentally fair, even though procedural due process
         protections for PCRA proceedings are less stringent than
         they are for a trial or direct appeal. Commonwealth v.
         Bennett, 593 Pa. 382, 930 A.2d 1264 (2007). “Thus,
         petitioners must be given the opportunity for the
         presentation of claims at a meaningful time and in a
         meaningful manner.” Id. at 398, 930 A.2d at 1273.

         Pennsylvania law makes clear:


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          While a PCRA petitioner does not have a Sixth
          Amendment right to assistance of counsel during
          collateral review, this Commonwealth, by way of
          procedural rule, provides for the appointment of
          counsel during a [petitioner’s] first petition for post
          conviction relief. Pursuant to our procedural rule,
          not only does a PCRA petitioner have the “right” to
          counsel, but also he has the “right” to effective
          assistance of counsel.          The guidance and
          representation of an attorney during collateral review
          should assure that meritorious legal issues are
          recognized and addressed, and that meritless claims
          are foregone.

       Commonwealth v. Haag, 570 Pa. 289, 307-08, 809 A.2d
       271, 282-83 (2002), cert. denied, 539 U.S. 918, 123 S.Ct.
       2277, 156 L.Ed.2d 136 (2003) (internal citations and most
       quotations marks omitted).       The rule-based right to
       counsel and to effective assistance of counsel extends
       throughout the post-conviction proceedings, including any
       appeal from the disposition of the PCRA petition.
       Commonwealth v. Quail, 729 A.2d 571, 573 (Pa.Super.
       1999); Pa.R.Crim.P. 904(E). “[O]nce counsel has entered
       an appearance on a [petitioner’s] behalf he is obligated to
       continue representation until the case is concluded or he is
       granted leave by the court to withdraw his appearance.”
       Id.

       Rule 907 controls the disposition of a PCRA petition
       without a hearing…. The purpose of a Rule 907 pre-
       dismissal notice is “to allow a petitioner an opportunity to
       seek leave to amend his petition and correct any material
       defects, the ultimate goal being to permit merits review by
       the PCRA court of potentially arguable claims.”
       Commonwealth v. Rykard, 55 A.3d 1177, 1189
       (Pa.Super. 2012), appeal denied, 619 Pa. 714, 64 A.3d
       631 (2013). The response to the Rule 907 notice “is an
       opportunity for a petitioner and/or his counsel to object to
       the dismissal and alert the PCRA court of a perceived
       error, permitting the court to discern the potential for
       amendment.” Id. The response is also the opportunity for
       the petitioner to object to counsel’s effectiveness at the
       PCRA level. Id. When a PCRA court properly issues Rule


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        907 notice in compliance with the rules of criminal
        procedure, an appellant is deemed to have sufficient notice
        of dismissal. Commonwealth v. Ousley, 21 A.3d 1238,
        1246 (Pa.Super. 2011), appeal denied, 612 Pa. 698, 30
        A.3d 487 (2011).

        “Absent recognition of a constitutional right to effective
        collateral review counsel, claims of PCRA counsel
        ineffectiveness cannot be raised for the first time after a
        notice of appeal has been taken from the underlying PCRA
        matter.” Commonwealth v. Ford, 44 A.3d 1190, 1201
        (Pa.Super. 2012).       A petitioner’s failure to raise an
        ineffectiveness of counsel claim after receiving Rule 907
        notice results in waiver of the claim. Commonwealth v.
        Pitts, 603 Pa. 1, 9 n.4, 981 A.2d 875, 880 n.4 (2009).
        See also Commonwealth v. Rigg, 84 A.3d 1080, 1084
        (Pa.Super.     2014)     (waiving    Appellant’s claim   of
        ineffectiveness of derivative PCRA counsel for failure to
        assert it in response to Rule 907 notice); Ousley, supra
        at 1245 (stating Pitts prohibits this Court’s review of
        petitioner’s ineffectiveness of PCRA counsel claim, where
        issue was raised for first time in PCRA appeal).

Commonwealth v. Smith, 121 A.3d 1049, 1053-54 (Pa.Super. 2015),

appeal denied, 635 Pa. 763, 136 A.3d 981 (2016).

     Instantly, the record demonstrates that court-appointed counsel filed a

Turner/Finley “no-merit” letter without the required separate petition to

withdraw as counsel. See Wrecks, supra. Additionally, counsel failed to

properly advise Appellant of his right to respond. In the “no-merit” letter,

counsel stated: “I have informed [Appellant] that, in my opinion, there is no

viable PCRA claim, and that in the event his petition is dismissed

pursuant to [Turner/]Finley he will no longer be eligible for court-

appointed counsel but could represent himself or retain counsel.”       (See

Turner/Finley letter, filed 3/13/19, at 1) (emphasis added).       The “no-


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merit” letter incorrectly informed Appellant that his rights were conditioned

on the court dismissing his PCRA petition.      As a result, court-appointed

counsel did not provide Appellant an adequate opportunity to respond to

counsel’s “no-merit” letter. See Commonwealth v. Bush, 197 A.3d 285,

287-88 (Pa.Super. 2018) (vacating and remanding due to non-compliance

with Turner/Finley requirements where counsel’s no-merit letter informed

appellant that his right to proceed pro se or by new counsel took effect only

if withdrawal was permitted by the PCRA court).       Thus, counsel failed to

comply with the technical requirements of Turner/Finley.        See Wrecks,

supra.

      Further, after the filing of the “no-merit” letter, the PCRA court issued

Rule 907 notice, addressed to appointed counsel.          Though the notice

mentioned counsel’s “no-merit” letter, it was silent as to whether counsel

still represented Appellant or whether Appellant had the right to respond pro

se or through privately-retained counsel.      In response to the Rule 907

notice, Appellant filed pro se several motions seeking an extension of time to

file a pro se response.   The PCRA court, however, did not rule on any of

these motions; the court simply dismissed Appellant’s PCRA petition. In its

order dismissing Appellant’s petition, the court also failed to state expressly

that counsel was permitted to withdraw.

      Under these circumstances, the PCRA court’s and court-appointed

counsel’s collective errors deprived Appellant of a meaningful opportunity to



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respond to counsel’s “no-merit” letter and the court’s Rule 907 notice. See

Bennett, supra; Rykard, supra.      Therefore, we vacate the PCRA court’s

order dismissing Appellant’s petition, and remand for court-appointed

counsel to file a proper motion to withdraw and amended Turner/Finley

letter that properly advises Appellant of his rights.    If the PCRA court

subsequently issues Rule 907 notice, it must afford Appellant an opportunity

to respond within the requisite timeframe, and rule on any pro se motions

Appellant might file. The court must also expressly rule on counsel’s motion

to withdraw. Accordingly, we vacate and remand for further proceedings.

       Order vacated; case remanded with instructions.       Jurisdiction is

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/20




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