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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                            1   IN THE SUPERIOR COURT OF
                                                                  PENNSYLVANIA
                                   Appellee

                            v.

ORRIN WINSTON MCRAE

                                   Appellant                    No. 1023 EDA 2015


                         Appeal from the PCRA Order April 2, 2015
                    In the Court of Common Pleas of Delaware County
                   Criminal Division at No(s): CP-23-CR-0001580-2013


BEFORE:           SHOGAN, J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.:                                         FILED MAY 05, 2017

        Orrin Winston McRae appeals from the trial court's order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546.            Due to    a   procedural default by plea counsel, we reverse and

remand for the reinstatement of McRae's appellate rights.

        On February 4, 2014, McRae entered a negotiated                    guilty plea to

possession with intent to deliver,' several firearms violations,2 and resisting

arrest.3 McRae was sentenced to 8-16 years' incarceration, with two years

of concurrent state                probation.    The   court also imposed    a   five-year


'   35 P.S.   §   780-113(a)(30).

2   18 Pa.C.S. §§        6105(a)(1), 6110.2(a).

3   75 Pa.C.S.      §   3733(a).
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mandatory minimum sentence,              pursuant to 42         Pa.C.S.     §    9712.1(a)

(mandatory sentences for certain drug offenses committed with firearms).

McRae did not file post -sentence motions or a direct appeal.

        On May 8, 2014, McRae filed a       timely pro se   PCRA    petition. On May

19,    2014, Henry DiBenedetto-Forrest, Esquire, was appointed as PCRA

counsel, see Pa.R.Crim.P. 904(C), and was ordered to file an amended

petition within 60 days.            On   September 25, 2014, counsel filed an

application to withdraw pursuant to Turner/Finley.4 On that same day, the

court granted counsel's petition to withdraw and issued Pa.R.Crim.P. 907

notice of intent to dismiss McRae's petition without        a    hearing.       On April 2,

2015, the court dismissed McRae's petition without          a   hearing.    On April 13,

2015, McRae filed    a   timely notice of appeal, raising the following issue:

        Whether the trial court erred in not correcting [McRae's] illegally
        prescribed sentence. The trial court's assertion that [McRae] is
        sentenced in the prescribed penalty [range], and [McRae] is
        untimely is an error. The Court should vacate[] sentence, and
        resentence Appellant in prescribed penalty range.
Appellant's Brief, at    1.

        Before we address McRae's substantive issue on appeal, we must first

turn our attention to     a   procedural conundrum presented in the instant case.

On October 8,      2013, Dawn Getty Sutphin, Esquire, was appointed to




4     Commonwealth v. Turner,
      See                                          544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213             (Pa. Super. 1988) (en banc).




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represent McRae; Attorney Sutphin represented McRae through the plea

proceedings.      There is nothing in the record, however, indicating that

Attorney Sutphin ever filed   a   motion to withdraw from representing McRae.5

        Pursuant to our rules of criminal procedure, both privately retained

and appointed defense counsel must follow certain formal procedures when

seeking to withdraw from representation of      a   client. See Pa.R.Crim.P. 120.

Specifically, Pennsylvania Rule of Criminal Procedure 120 provides, in

pertinent part:

        (A) Entry of Appearance
          (1) Counsel for defendant shall file an entry of appearance
          with the clerk of courts promptly after being retained, and
          serve a copy of the entry of appearance on the attorney
          for the Commonwealth.
                                        * * *


          (4) An attorney who has been retained or appointed by the
          court shall continue such representation through
          direct appeal or until granted leave to withdraw by
          the court pursuant to paragraph (B).
        (B) Withdrawal of Appearance

          (1) Counsel for a defendant may not withdraw his or her
          appearance except by leave of court.

          (2) A motion to withdraw shall be:


5Notably, after McRae filed a pro se PCRA petition on May 8, 2014, Henry
DiBenedetto-Forrest (private counsel) was appointed as PCRA counsel.
Rather than file an amended petition, Attorney DiBenedetto-Forrest filed a
motion to withdraw under Turner/Finley, which the court granted on
September 25, 2014.


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             (a) filed with the clerk of courts, and a copy concurrently
             served on the attorney for the Commonwealth and the
             defendant; or

             (b) made orally on the record in open court in the
             presence of the defendant.
Pa.R.Crim.P. 120(A)(1), (4), (B)(1)-(2) (emphasis added). The comment to

Rule 120 explains that,        "[u]nder paragraph (B)(2), counsel must file             a

motion to withdraw in all cases, and counsel's obligation to represent the

defendant, whether as retained or appointed counsel, remains until leave to

withdraw      is   granted by the court."     Pa.R.Crim.P. 120, comment (citing

Commonwealth v. Librizzi, 810 A.2d 692, 693                 (Pa. Super. 2002) (stating

that once counsel enters appearance, he or she             is   responsible for diligently

representing client until appearance              is   withdrawn by leave of court;

responsibility to client includes filing requested appeal)).

        In the instant case, there is nothing in the record indicating that plea

counsel consulted with McRae regarding his post -sentence or appellate

rights, other than what       is   stated in the standard language of the written

guilty plea colloquy.        See Guilty Plea Statement, Statement of Post -

Sentence Rights, 2/4/14 ("I represent the Defendant in the above -captioned

case. I have explained the Post -Sentence Rights contained in this document

to the Defendant and I am satisfied that the Defendant understands these

rights.").    Moreover, because the record does not reflect that counsel was

ever granted leave to withdraw, it appears that counsel did not fulfil her duty

of representing McRae throughout the appellate process. See Pa.R.Crim.P.

120. In Commonwealth v. Keys, 580 A.2d 386 (Pa. Super. 1990), counsel

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informed the defendant, after sentencing but before the time expired for

filing   a   direct appeal, that he would no longer represent him.        However,

because counsel failed to seek or receive leave of court to withdraw as

counsel, our Court found that the defendant was denied his right to         a   direct

appeal by counsel's procedural default.       Id. at 387. Consequently, the Court
reversed the trial court's order and reinstated the defendant's right to            a

direct criminal appeal. Id. at 387-88.

         Likewise, we must reverse the trial court's order here and reinstate

McRae's right to     a   direct appeal because the record reflects that McRae was

effectively abandoned during the appeal period.             We direct the court to

appoint new appellate counsel who shall file      a   notice of appeal nunc pro tunc

within thirty days of the filing of this memorandum.

         Order reversed.       Appeal   rights reinstated      Case   remanded for

proceedings consistent with this decision. Jurisdiction relinquished. 6


6
  By referencing several sentences in his pro se appellate brief, we are able
to decipher that McRae has made a veiled Alleyne/mandatory minimum
sentence argument. Because at the time that McRae's judgment of sentence
became final, Alleyne had already been decided, plea counsel should have
been on notice that the constitutionality of our Commonwealth's mandatory
minimum statutes was in question.       See Commonwealth v. Melendez-
Negron, 123 A.2d 1087, 1091 (Pa. Super. 2015). Therefore, under the
holdings announced by our Court in Commonwealth v. Ciccone, 2016 PA
Super 283 (Pa. Super. filed Dec. 13, 2016) (en banc), and Commonwealth
v. Rivera, 2017 PA Super 14 (Pa. Super. filed Jan. 18, 2017) (en banc),
which interpret our Supreme Court's decision, Commonwealth v.
Washington, 142 A.3d 810 (Pa. 2016), plea counsel should have consulted
with McRae regarding whether he wished to appeal the non -frivolous issue
concerning the legality of his negotiated sentence under Alleyne. Rivera,
(Footnote Continued Next Page)


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        Judge Stabile concurs in the result.

        Judge Shogan files   a   Dissenting Memorandum.

Judgment Entered.




J    seph D. Seletyn,
Prothonotary


Date: 5/5/2017




(Footnote Continued)

supra. However, due to the procedural default of plea counsel that resulted
in the loss of McRae's appellate rights, we need not reach that issue today.




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