J-S38021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOSE LUIS PERALTA,

                            Appellant                   No. 2971 EDA 2016


                Appeal from the PCRA Order September 6, 2016
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0007919-2011


BEFORE: GANTMAN, P.J., SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED AUGUST 25, 2017

       Appellant, Jose Luis Peralta, appeals from the order denying his first

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546.          In addition, counsel for Appellant has filed an

application to withdraw and a no-merit letter pursuant to Commonwealth

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

A.2d 213 (Pa. Super. 1988) (en banc). Because we find that counsel has not

fully and accurately complied with the requirements of Turner/Finley, we

deny appellate counsel’s request to withdraw at this time.

       The trial court summarized the procedural history of this case as

follows:
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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           On September 4, 2011, [Appellant] was charged with
     attempted rape of a child; attempted involuntary deviate sexual
     intercourse with a child; attempted aggravated indecent assault
     of a child; indecent assault - forcible compulsion; burglary,
     criminal trespass, indecent assault, false imprisonment, unlawful
     restraint, simple assault, possession of a controlled substance,
     possession of drug paraphernalia, harassment, and criminal
     mischief. On December 5, 2011, a preliminary hearing was held.
     All charges were held for court.

           On March 21, 2012, [Appellant] filed a petition for writ of
     habeas corpus challenging the sufficiency of the evidence
     presented at the preliminary hearing. On April 2, 2012, the [trial
     court] granted [Appellant’s] habeas corpus petition as to the
     charges of attempted rape of a child; attempted involuntary
     deviate sexual intercourse with a child; attempted aggravated
     assault of a child; and indecent assault - forcible compulsion.

           On April 15, 2012, [Appellant] entered a guilty plea to the
     remaining charges. On April 25, 2012, [Appellant] filed a motion
     to withdraw his guilty plea. On July 31, 2012, the [trial court]
     granted that motion.

            On November 9, 2012, [Appellant] waived his right to a
     trial by jury and a [nonjury] trial was held[.] [Appellant] was
     found guilty of all remaining charges.

Trial Court Opinion, 10/3/13, at 5-6 (footnotes omitted).

     On December 18, 2012, the trial court sentenced Appellant to serve an

aggregate term of incarceration of seventeen and one-half to forty years, to

be followed by two years of probation. Appellant filed timely post-sentence

motions. The trial court held an evidentiary hearing on February 22, 2013.

On May 23, 2013, the trial court vacated the sentence it had imposed for

indecent assault, thus reducing Appellant’s aggregate sentence to a term of

incarceration of fifteen to thirty years, to be followed by two years of




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probation.    That same date, the trial court denied Appellant’s remaining

post-sentence motions.

        This Court affirmed Appellant’s judgment of sentence on direct appeal.

Commonwealth v. Peralta, 102 A.3d 532, 1846 EDA 2013 (Pa. Super.

filed April 15, 2014) (unpublished memorandum). Subsequently, Appellant

filed a petition for reargument/reconsideration with this Court, which was

denied by an order dated June 18, 2014. The Pennsylvania Supreme Court

denied Appellant’s petition for allowance of appeal on November 25, 2014.

Commonwealth v. Peralta, 104 A.3d 3, 496 MAL 2014 (Pa. 2014)

        On August 14, 2015, Appellant filed, pro se, the instant PCRA petition.

The PCRA court appointed counsel to represent Appellant on September 29,

2015.    On December 30, 2015, appointed counsel filed an amended PCRA

petition.    On February 23, 2016, the Commonwealth filed an answer to

Appellant’s amended PCRA petition.       The PCRA court issued notice of its

intent to dismiss pursuant to Pa.R.Crim.P. 907 on June 30, 2016. On July

19, 2016, appointed counsel filed a reply to the PCRA court’s notice of intent

to dismiss. The PCRA court denied Appellant’s PCRA petition on September

6, 2016. This timely appeal followed.

        Appellant’s counsel filed with the PCRA court a statement pursuant to

Pa.R.A.P. 1925(c)(4), indicating his intent to seek permission to withdraw

and noting that there were no meritorious issues supporting the appeal. The

PCRA court did not draft a Pa.R.A.P. 1925(a) opinion but rather, authored a


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letter explaining that in light of PCRA counsel’s statement pursuant to

Pa.R.A.P. 1925(c)(4), it was directing that the record be forwarded to this

Court for review.

      On March 10, 2017, PCRA counsel filed with this Court an application

to withdraw and a Turner/Finley letter. Prior to addressing the merits of

Appellant’s claims on appeal, we must determine whether counsel has

fulfilled the procedural requirements for withdrawing his representation.

Commonwealth v. Daniels, 947 A.2d 795, 797 (Pa. Super. 2008).              This

Court has listed the following conditions to be met by counsel in seeking to

withdraw in a collateral appeal:

             Counsel petitioning to withdraw from PCRA representation
      must proceed ... under Turner, supra and Finley, supra and
      ... must review the case zealously. Turner/Finley counsel must
      then 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 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.

                                    ***

             [W]here counsel submits a petition and no-merit letter that
      ... satisfy the technical demands of Turner/Finley, the court-
      trial court or this Court-must then conduct its own review of the
      merits of the case. If the court agrees with counsel that the
      claims are without merit, the court will permit counsel to
      withdraw and deny relief.




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Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation

omitted) (brackets in original).

      In the application filed with this Court, counsel explained that he had

been appointed to represent Appellant at the PCRA proceedings, he reviewed

the case, evaluated the issues, conducted an independent review of the

record, and concluded there were no issues of merit. Counsel also listed the

issue relevant to this appeal in his no-merit letter and explained why the

appeal is without merit. In addition, counsel appended to the application to

withdraw a copy of the letter sent to Appellant, which advised Appellant that

he could represent himself or that he could retain private counsel.

      However, counsel’s letter to Appellant contains the following poorly

crafted language concerning Appellant’s rights in lieu of representation:

            You have the right and [sic] to and can represent yourself
      now or retain new counsel now. Should the Superior Court
      agree with my position, my appearance on your behalf
      will be withdrawn and you may then proceed, if you wish,
      either pro se or through privately retained counsel. You
      have no right to new Court appointed, free counsel. Even
      though you may and can immediately retain new counsel, if you
      wish, or immediately commence representing yourself, not
      waiting for the Superior Court to decide whether I should be
      allowed to withdraw my appearance, you can also do that when
      and if the Superior Court grants my motion to withdraw as
      counsel.

Application to Withdraw as Counsel, 3/10/17, Exhibit B (emphasis added).

      The   above-cited   language   includes   contradictory   and   confusing

language pertaining to when Appellant may invoke his right to proceed pro

se or through privately retained counsel.        Specifically, the highlighted

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sentence improperly conveys the conclusion that Appellant cannot proceed

pro se or by privately retained counsel unless, or until, this Court rules on

counsel’s request to withdraw. Such information is incorrect.

      As we clarified in Commonwealth v. Muzzy, 141 A.3d 509 (Pa.

Super. 2015):

      [I]n an appeal from the denial of a PCRA petition, if counsel files
      a petition to withdraw as appellate counsel in this Court, the
      letter to the client, inter alia, shall inform the PCRA petitioner
      that upon the filing of counsel’s petition to withdraw, the
      petitioner-appellant has the immediate right to proceed in the
      appeal pro se or through privately-retained counsel.

Id. at 512 (emphasis in original).

      Here, as we concluded in Muzzy, “[c]ounsel’s letter to Appellant

renders [his] attempt to withdraw as counsel defective under relevant case

law prescribing the proper procedure for withdrawal in a collateral appeal.”

Id. Accordingly, we conclude that counsel’s petition to withdraw is deficient,

and deny it at this juncture.

      In addition, we note that in a letter accompanying his application to

withdraw, PCRA counsel stated the following:

      Due to [Appellant’s] inability to understand English, I have
      arranged to have everything (except this Court’s April 14, 2015
      opinion) I am filing translated into Spanish by the Spanish
      interpreter for the Bucks County Court of Common Pleas. I do
      not expect that to [be] available for four weeks or so, but when
      it is[,] I will file it along with a translator’s certification.




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Letter, 3/10/17, at 1.1

       The statute governing the use of interpreters in judicial matters

provides, in relevant part, as follows:

       (a) Appointment of certified interpreter.-- Upon request or
       sua sponte, if the presiding judicial officer determines that a
       principal party in interest or witness has a limited ability to
       speak or understand English, then a certified interpreter shall be
       appointed, unless the certified interpreter is unavailable as
       provided in subsection (b)[, relating to appointment of otherwise
       qualified interpreter].

42 Pa.C.S. § 4412(a) (emphasis added).           Thus, “[a]s a general rule, the

determination of whether an interpreter is warranted in a particular case is

within the sound discretion of the trial court.”           Commonwealth v.
____________________________________________


1
   We note       that PCRA counsel has filed with this Court the Spanish
translations    of the English documents he previously filed with this Court. In
addition to      those documents, counsel included a signed and sealed
certification    of accuracy from the certified translator which states the
following:

       Re: Translation of documents related to [Appellant]

       I, Mariana Stolee, hereby attest that I am a translator certified
       by the American Translators Association for English-Spanish, and
       a PA certified English-Spanish court interpreter; that I have
       translated the “body only”, as requested, of the following
       documents: Letter to [Superior Court Deputy Prothonotary]
       dated March 10, 2017, Application of Appellant’s Counsel for
       Leave to Withdraw his Appearance Due to Lack of Meritorious
       Issues, letter to [Superior Court Deputy Prothonotary] dated
       January 12, 2017, and letter to [Appellant] dated March 11,
       2017; and that to the best of my knowledge, ability, and belief
       these translations are a true, accurate, and complete translation
       of the original English documents.

Certification of Accuracy, 4/5/17, at 1.



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Rashawn Tahi Knox, 142 A.3d 863, 868 (Pa. Super. 2016) (quoting In re

Garcia, 984 A.2d 506, 511 (Pa. Super. 2009)).

      While our review of the certified record reflects that interpreters were

present at each hearing held in this matter, we observe that the record lacks

a specific order or determination from the trial court directing that a certified

interpreter be appointed. However, we note that at Appellant’s guilty plea

hearing held on April 16, 2012, the trial court made the following inquiry,

which reflects its understanding of the necessity of an interpreter for

Appellant:

      Other than [Appellant], does everybody           read,   write   and
      understand the English language?

N.T., 4/16/12, at 3. Consequently, we are constrained to conclude that a

certified interpreter is necessary at all levels in this case.    Therefore, we

direct that any documents sent to Appellant be properly translated for

Appellant and that applicable certification documentation shall be filed with

the appropriate court.

      In summary, counsel is hereby instructed to refile his “no-merit” letter

under Turner/Finley.       His letter to Appellant shall provide, inter alia,

accurate notice of Appellant’s immediate right to proceed pro se or with

private counsel. Muzzy, 141 A.3d at 512. Moreover, any documents sent

by counsel to Appellant must be translated and proper documentation must

be filed with the appropriate court.        Mindful of the need for proper

translation of documents, counsel’s revised petition to withdraw and

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certification of translation shall be filed within forty-five days of the date of

this decision.   Appellant shall have thirty days from receipt of the revised

petition to file either a pro se brief or a brief by newly retained private

counsel, if he so chooses. The Commonwealth will then have thirty days in

which to file a responsive brief.

      Petition to withdraw as counsel denied. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2017




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