J-S25009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

CHARLES MERRE FRANK,

                            Appellant                  No. 1100 WDA 2014


              Appeal from the PCRA Order Entered May 30, 2014
                 In the Court of Common Pleas of Blair County
              Criminal Division at No(s): CP-07-CR-0001086-1997


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

MEMORANDUM BY BENDER, P.J.E.:                            FILED JUNE 03, 2015

        Charles Merre Frank (Appellant) appeals from the May 30, 2014 order

granting the Commonwealth’s motion to dismiss Appellant’s petition filed

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

as untimely, and for having failed to meet the after discovered evidence

exception to the time bar.            We direct counsel to file either a proper

advocate’s brief or a petition to withdraw and a “no-merit” letter that

comports with the requirements of Turner/Finley.1

        In June of 1998, Appellant was convicted by a jury of criminal

conspiracy to commit burglary, loitering, prowling at night, criminal mischief,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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and simple assault.       He was sentenced to an aggregate term of 4 to 10

years’ incarceration followed by 3 years’ probation. Appellant filed a direct

appeal. This Court affirmed his judgment of sentence on July 15, 1999, and

our Supreme Court denied his petition for allowance of appeal on December

3, 1999.     Commonwealth v. Frank, 742 A.2d 1143 (Pa. Super. 1999)

(unpublished memorandum), appeal denied, 747 A.2d 897 (Pa. 1999).

Thus, Appellant’s judgment of sentence became final on March 8, 2000,

when the ninety-day period for filing a petition for writ of certiorari with the

United States Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3) (stating

“a judgment becomes final at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review”).

       Appellant filed his first PCRA petition on July 26, 2001, asserting inter

alia that his trial counsel was ineffective for failing to call Julie Dillon as a

witness at his trial.        The petition was ultimately denied following the

issuance of Pa.R.Crim.P. 907 notice. No appeal was filed.

       On September 30, 2013, Appellant filed his second PCRA petition,

which underlies the instant appeal.2             Counsel was appointed and an

amended petition was filed. Appellant again alleges ineffective assistance of

____________________________________________


2
 It appears that Appellant continues to serve this sentence due to numerous
parole violations.



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trial counsel for failing to call Ms. Dillon. Appellant also appears to assert

that he meets the after-discovered facts exception to the time bar.             In

response, the Commonwealth filed a motion to dismiss, based in part on the

untimely filling of the petition.    After hearing and argument, the court

granted the Commonwealth’s petition to dismiss. It explained that Appellant

“attempted to raise an exception pursuant to 42 Pa.C.S.[] § 9545(b)([ii])”

but that “the evidence establishes that the facts he now raises were known

to him and could have been ascertained by the exercise of due diligence,

specifically, the evidence that Julie Dillon gave him permission to be present

on the property in question [was] raised in his first PCRA.”         PCRA Court

Opinion, 8/12/14, at 1. “Additionally, [Appellant] did not obtain cooperation

for his purported witness to file an affidavit as to the witness’ anticipated

testimony.” Id. Ultimately, on May 30, 2014, the PCRA court’s grant of the

Commonwealth’s motion to dismiss, in essence, resulted in the denial of

Appellant’s petition.

      Appellant’s counsel filed a timely notice of appeal on Appellant’s

behalf, raising the following issue for our review:        “Whether the [t]rial

[c]ourt erred in dismissing the Appellant’s current PCRA [p]etition.”

Appellant’s brief at 2. However, counsel concludes in the brief he filed with

this Court that Appellant’s appeal is frivolous. See Appellant’s brief at 4. In

light of this conclusion, we note that counsel did not file a petition for leave

to   withdraw    and    a   “no-merit”   letter,   following   the   dictates   of

Turner/Finley. Thus, we are unable to determine whether counsel wishes

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to proceed with his representation of Appellant as an advocate or whether he

wishes to withdraw as Appellant’s counsel.

     An attorney choosing to seek withdrawal from PCRA representation

must proceed under Turner/Finley, which provides the manner in which

post-conviction counsel may withdraw from representation. The holdings in

Turner/Finley “mandate an independent review of the record by competent

counsel before a PCRA court or appellate court can authorize an attorney’s

withdrawal.” Commonwealth v. Ryard, 55 A.2d 1177, 1184 (Pa. Super.

2012). Moreover, the procedure that counsel must undertake to withdraw

under Turner/Finley is as follows:

     [PCRA]counsel must [] submit a “no-merit” letter to the trial
     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).

     Having reviewed the record in this matter and counsel’s submission,

we are compelled to direct counsel to either prepare and submit to this Court

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a proper advocate’s brief or a petition to withdraw and a “no-merit” letter

that comports with all the requirements of Turner/Finley within thirty (30)

days of the date this memorandum is filed.

     Counsel directed to respond within thirty (30) days. Panel jurisdiction

retained.




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