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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
GEORGE EDWARD CLARITT,                      :
                                            :
                          Appellant         :     No. 875 WDA 2014


                   Appeal from the PCRA Order May 12, 2014
                In the Court of Common Pleas of Warren County
               Criminal Division No(s).: CP-62-CR-0000390-2011

BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED JANUARY 09, 2015

        Appellant, George Edward Claritt, appeals from the order entered in

the Warren County Court of Common Pleas denying, after an evidentiary

hearing, his first Post Conviction Relief Act1 (“PCRA”) petition.    This case

returns to us after we remanded to have Robert Kinnear, Esq., comply with

all the requirements of Turner/Finley,2 including filing a petition to

withdraw with this Court.         Because counsel’s petition to withdraw is



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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materially deficient, we deny his petition and again remand to have counsel

file a proper petition or an advocate’s brief within thirty days.

        We adopt the facts and procedural history set forth in the PCRA court’s

decision. See PCRA Ct. Op., 5/13/14, at 1-3. After an evidentiary hearing

at which Appellant and his trial counsel testified, the PCRA court denied

Appellant’s petition on May 13, 2014. Appellant timely appealed.

        On May 28, 2014, the trial court ordered Appellant to file and serve on

the court a Pa.R.A.P. 1925(b) statement within twenty-one days.             The

docket does not reflect compliance with Pa.R.C.P. 236.3 On June 16, 2014,

Appellant filed a Rule 1925(b) statement but failed to serve a copy on the

court. The PCRA court issued a Rule 1925(a) decision objecting to counsel’s

failure to serve the Rule 1925(b) statement.

        Instantly, we ascertain whether Appellant complied with Pa.R.A.P.

1925(b)(1), which states in relevant part: “(1) Filing and service.—

Appellant shall file of record the Statement and concurrently shall serve the

judge. Filing of record and service on the judge shall be in person or by mail

. . . .”    Pa.R.A.P. 1925(b)(1) (emphasis added).      We must also examine

whether the PCRA court strictly complied with Pa.R.C.P. 236 when it ordered

a Rule 1925(b) statement.        See In re L.M., 923 A.2d 505, 509-10 (Pa.

Super. 2007) (holding, “strict application of the bright-line rule [of Rule 1925


3
    We discuss this in further detail below.




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waiver] necessitates strict interpretation of the rules regarding notice of

Rule 1925(b) orders.” (citation omitted)); see also Pa.R.Crim.P. 114(B)-

(C); Pa.R.A.P. 1925(b)(2).

      Rule 236 states in pertinent part:

         Rule 236. Notice by Prothonotary of Entry of Order
         or Judgment

            (a) The prothonotary shall immediately give written
         notice of the entry of

                                 *    *    *

               (2) any other order or judgment to each party’s
            attorney of record or, if unrepresented, to each party.
            The notice shall include a copy of the order or
            judgment.

            (b) The prothonotary shall note in the docket the giving
         of the notice and, when a judgment by confession is
         entered, the mailing of the required notice and documents.

Pa.R.C.P. 236(a)(2), (b).    Rule 236 mandates that the prothonotary give

“written notice of the entry of a court order to each party and to note on the

docket that notice was given.” Id. at 510 (emphasis added).

            If the docket does not show that notice of the entry of
         a Rule 1925(b) order was provided to an appellant, then
         we will not conclude that the appellant’s issues have been
         waived for failure to file a Rule 1925(b) statement. That a
         party may have actually received notice is not
         determinative under circumstances where the docket does
         not reflect that notice was sent.

In re L.M., 923 A.2d at 510 (emphases added and citations omitted).

      In this case, Appellant’s counsel inexplicably failed to serve the PCRA

judge a copy of the Rule 1925(b) statement. See Pa.R.A.P. 1925(b). We


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decline to find waiver, however, as the docket failed to reflect notice of the

entry of the order on Appellant. See In re L.M., 923 A.2d at 510. Because

counsel’s failure to comply with well-settled law does not result in waiver of

Appellant’s issues on appeal, we return to the procedural history.

       Previously, Appellant’s counsel filed a Turner/Finley brief with this

Court without, inter alia, filing a petition to withdraw and complying with all

the requirements of Turner/Finley.         Appellant filed a pro se petition

requesting, inter alia, a Grazier4 hearing. This panel struck counsel’s brief,

forwarded to counsel Appellant’s pro se petition per Commonwealth v.

Jette, 23 A.3d 1032, 1044 (Pa. 2011) (holding, “once the brief has been

filed, any right to insist upon self-representation has expired”), and ordered

counsel to, inter alia, comply with Turner/Finley.

       Appellant’s counsel has filed another Turner/Finley brief, a petition to

withdraw, and a “no-merit” letter.    We reproduce the entirety of counsel’s

“no-merit” letter:

          I have enclosed a copy of the brief filed with the Superior
          Court, a Petition to withdraw as counsel. After review of
          the issues you raised I found that they were meritless.
          You have to right to proceed pro se in the matter or
          represented by new counsel, should the petition be
          granted.

Letter from Appellant’s counsel to Appellant (Dec. 5, 2014), at 1. Appellant

did not file a pro se response.

4
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).




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     Appellant’s counsel raises the following issues:

        Is [Appellant’s] claim of ineffective assistance of counsel
        without merit?

Appellant’s Turner/Finley Brief at 4.

     Prior to addressing the issues raised in the Turner/Finley brief, we

examine the following in evaluating counsel’s petition to withdraw:

        [I]ndependent review of the record by competent counsel
        is required before withdrawal is permitted.       Such
        independent review requires proof of:

        1) A “no-merit” letter by PCRA counsel detailing the nature
        and extent of his review;

        2) The “no-merit” letter by PCRA counsel listing each issue
        the petitioner wished to have reviewed;

        3) The PCRA counsel’s “explanation”, in the “no-merit”
        letter, of why the petitioner’s issues were meritless;

        4) The PCRA court conducting its own independent review
        of the record; and

        5) The PCRA court agreeing with counsel that the petition
        was meritless.

Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)

(alterations and citations omitted). Further, the Widgins Court explained:

        The Supreme Court [in Commonwealth v. Pitts, 981
        A.2d 875 (Pa. 2009),] did not expressly overrule the
        additional requirement imposed by [Commonwealth v.
        Friend, 896 A.2d 607 (Pa. Super. 2006),] decision, i.e.,
        that PCRA counsel seeking to withdraw contemporaneously
        forward to the petitioner a copy of the application to
        withdraw that includes (i) a copy of both the “no-merit”
        letter, and (ii) a 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


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         proceed pro se, or with the assistance of privately retained
         counsel.

Id. at 818.

      Instantly, we have reviewed counsel’s petition to withdraw and

conclude it fails to comply with the requirements set forth by the Widgins

Court.   See id.   Counsel’s “no-merit” letter fails to, inter alia, detail “the

nature and extent of his review,” list every issue Appellant wished reviewed,

and explain why, in counsel’s view, Appellant’s issues are meritless.      See

Widgins, 29 A.3d at 817-18.       Accordingly, we deny counsel’s petition to

withdraw and order Appellant to file a compliant petition or an advocate’s

brief within thirty days.

      Petition to withdraw denied.      Counsel ordered to file a compliant

petition to withdraw or an advocate’s brief within thirty days.           Panel

jurisdiction retained.

      Judge Donohue joins the memorandum.

      Judge Mundy concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/9/2015




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