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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                      :
                                            :
                                            :
RAYMOND CHARLES WHITE,                      :
                                            :
                          Appellant         :     No. 655 WDA 2014


                 Appeal from the PCRA Order February 24, 2014
               In the Court of Common Pleas of Allegheny County
               Criminal Division No(s).: CP-02-CR-0013548-2000

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

MEMORANDUM BY FITZGERALD, J.:                      FILED JANUARY 07, 2015

        Appellant, Raymond Charles Whites, appeals pro se from the dismissal

of his second Post Conviction Relief Act1 (PCRA) petition after another panel

of this Court remanded for further proceedings in this matter.2 In light of

our previous order, and because the PCRA court has not yet entered an

order relieving appointed counsel from representing Appellant, we are again

constrained to remand this matter.




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
 Commonwealth v. White, 910 WDA 2012 (unpublished memorandum at
2) (Pa. Super. Jan. 28, 2013).
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      On July 23, 2002, a jury found Appellant guilty of third-degree murder

and conspiracy. On October 23, 2002, the trial court sentenced him to an

aggregate thirty to sixty years’ imprisonment.     On August 24, 2004, this

Court affirmed the judgment of sentence. Commonwealth v. White, 2072

WDA 2002 (unpublished memorandum) (Pa. Super. Aug. 24, 2004).

Appellant, who was represented by private counsel, did not file a petition for

allowance of appeal.

      On January 19, 2006, the PCRA court received Appellant’s first pro se

PCRA petition.    Appellant, in relevant part, alleged direct appeal counsel

abandoned him by refusing to file a petition for allowance of appeal.

Appellant further asserted that prison officials interfered with his ability to

raise additional PCRA claims.    The court appointed counsel, who, in turn,

filed a petition to withdraw from representation and a Turner/Finley, no-

merit letter.3   On July 10, 2007, the court granted counsel’s petition to

withdraw and, pursuant to Pa.R.Crim.P. 907, issued a notice of its intent to

dismiss the petition. On August 16, 2007, the court dismissed Appellant’s

first PCRA petition. Appellant took a pro se appeal, and this Court affirmed,

holding that his PCRA petition was untimely and failed to state an exception

to the PCRA time bar.       Commonwealth v. White, 1881 WDA 2007

(unpublished memorandum at 1) (Pa. Super. June 2, 2008).                   The


3
  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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Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal on September 30, 2008.

      Appellant filed his second pro se PCRA petition, which the PCRA court

received on October 27, 2008. Appellant again alleged direct appeal counsel

abandoned him by failing to file a petition for allowance of appeal. The PCRA

court appointed Patrick K. Nightingale, Esq., to represent Appellant.

Attorney Nightingale requested an extension of time, but informed the court

by letter dated November 9, 2009, that he believed Appellant’s second PCRA

petition was time barred and/or meritless and requested leave to withdraw.

At that time, the record did not indicate that Appellant received a copy of

counsel’s letter.

      On November 24, 2009, the PCRA court entered an order granting

Attorney Nightingale an extension of time to file a PCRA petition or a

“Turner letter” within ninety days. No further action was taken of record

until July 7, 2010, when the court issued a notice of its intent to dismiss the

petition, which was distributed to PCRA counsel but not served on Appellant.

The court, on October 20, 2010, entered an order dismissing Appellant’s

second pro se PCRA petition.      However, the court did not relieve PCRA

counsel from representing Appellant.

      On December 21, 2011, the PCRA court received Appellant’s third pro

se PCRA petition, claiming he did not receive notice of the PCRA court’s

intent to dismiss his second PCRA petition.     The court issued a Rule 907



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notice on March 22, 2012, and entered an order dismissing that petition on

April 12, 2012. Appellant took a pro se appeal to this Court.

     In the most recent appeal from the dismissal of Appellant’s third PCRA

petition, we adopted the suggestion of the Commonwealth that “the

appropriate remedy would be a remand to the PCRA Court to return

[Appellant] to the time of the filing of the November 9, 2009 no merit letter

and to move forward from there.”        White, 910 WDA 2012 at 2 (internal

quotation marks omitted).    We thus reversed the PCRA court’s order and

remanded the case with the following instructions:

        Because PCRA counsel was never granted leave to
        withdraw, he remains counsel of record and should send a
        copy of his “no-merit” letter to Appellant. If, after its
        independent review of the record, the PCRA court agrees
        with PCRA counsel’s assessment, the PCRA court shall then
        provide Rule 907 notice to Appellant of its intent to
        dismiss, so that Appellant may have an opportunity to
        respond. See generally, Commonwealth v. Doty, 48
        A.3d 451 (Pa. Super. 2012).

Id. at 2 (emphasis added).

     Following   remand,     Attorney    Nightingale   filed    a   petition   for

reinstatement of Appellant’s second PCRA petition, wherein he requested the

PCRA court to “take whatever action the [c]ourt deems appropriate in light

of within counsel’s no-merit letter.”   Appellant’s Pet. for Reinstatement of

PCRA, Nunc Pro Tunc, 2/13/13, at 2.       The PCRA court, on November 15,

2013, entered a Rule 907 notice of its intent to dismiss Appellant’s second

petition as frivolous, but did not grant Attorney Nightingale’s extant request



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to withdraw.    The November 15th notice was distributed to Attorney

Nightingale and Appellant.   Appellant, after receiving an extension of time

from the PCRA court, filed a pro se response to the Rule 907 notice.

     In his response, Appellant acknowledged that Attorney Nightingale

filed a no-merit letter and sought leave to withdraw from representation.

Appellant’s Response to Notice of Intent to Dismiss, 2/24/14, at 4.       He

asserted, however, that his second PCRA petition was timely under 42

Pa.C.S. § 9545(b)(1)(ii) and Commonwealth v. Bennett, 930 A.2d 1264

(Pa. 2007), and sought leave to amend his petition to include that argument.

Id. at 1. According to Appellant, he did not discover direct appeal counsel

failed to file a petition for allowance of appeal until December 11, 2005,

when he received a copy of the docket from the clerk of courts. Id. at 5.

He asserted he filed his first PCRA petition within sixty days of his actual

discovery of direct appeal counsel’s omission and the instant second PCRA

petition within sixty days of the conclusion of his appeal from the dismissal

of his first PCRA petition. Id. at 6-7. Thus, Appellant asserted his claim of

direct appeal counsel’s abandonment was timely presented in the underlying

second PCRA petition and that Attorney Nightingale’s motion to withdraw

should be denied. Id. at 7-8. The record shows that Appellant did not serve

Attorney Nightingale with a copy of his pro se response, and there is no

indication that the PCRA court forwarded the response to counsel.




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     The PCRA court, on February 24, 2014, entered the underlying order

dismissing Appellant’s pro se second PCRA petition, but did not expressly

grant Attorney Nightingale leave to withdraw. Appellant, acting pro se, took

the instant appeal. Although Appellant failed to respond to the PCRA court’s

April 7, 2014 order to file a Pa.R.A.P. 1925(b) statement, the court reissued

that order on May 5, 2014, and Appellant filed a statement of errors

complained of on appeal.

     Appellant, in his pro se brief, contends he is entitled to a PCRA time-

bar exception under 42 Pa.C.S. § 9545(b)(1)(ii) with respect to his second

PCRA petition and an evidentiary hearing on his claim of abandonment by

direct appeal counsel. Appellant’s arguments echo those set forth in his pro

se response to the PCRA court’s Rule 907 notice.

     At the outset, we observe that the PCRA court has not entered an

order of record permitting Attorney Nightingale to withdraw.      Therefore,

Attorney Nightingale remains counsel of record for the purposes of this

appeal.   See Pa.R.Crim.P. 904(F)(2) (stating “the appointment of counsel

shall be effective throughout the post-conviction collateral proceedings,

including any appeal from disposition of the petition for post-conviction

collateral relief”) For this reason alone, we may not address the merits of

Appellant’s pro se claims. See Pa.R.A.P. 3304; Commonwealth v. Jette,

23 A.3d 1032 (Pa. 2011).




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      Appellant is, at a minimum, entitled to a Grazier4 hearing to

determine whether he has knowingly, intelligently, and voluntarily waived

the assistance of counsel of record.        However, given the increasingly

complicated procedural history underlying the litigation of this second PCRA

petition, and because counsel appointment remains effective until a court

grants leave to withdraw, we remand for the PCRA court to determine

counsel’s current status in this matter with the following instructions.

      The PCRA court shall determine Attorney Nightingale’s status in this

matter within fifteen days of the filing of this memorandum.       If the court

determines counsel was permitted to withdraw, it shall supplement the

record with the order granting withdrawal, and we will proceed to address

Appellant’s issues raised in his pro se brief. If, however, counsel was not

allowed to withdraw, Appellant may elect to proceed pro se in this appeal, in

which case, the court shall conduct a Grazier colloquy and inform this Court

of Appellant’s waiver of the assistance of counsel.     Should Appellant elect


4
   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).                As this is
technically a second PCRA petition, Appellant is not entitled to counsel as of
right. See Commonwealth v. Kubis, 808 A.2d 196, 200 (Pa. Super. 2002)
(“the Pennsylvania Rules of Criminal Procedure provide that the PCRA court
shall appoint an attorney to represent a petitioner during his first PCRA
petition when he demonstrates that he is ‘unable to afford or otherwise
procure counsel.’ [N]o such right exists for subsequent PCRA petitions[.]”).
Nevertheless, the PCRA court appointed counsel in the underlying matter.
See Pa.R.Crim.P. 904(F)(2); see also Pa.R.P.C. 1.1, 1.3 (requiring counsel
provide “competent, thorough, and prepared representation” and
representation be diligent and zealous).      Consequently, we invoke the
Grazier requirement.



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not to proceed pro se, Attorney Nightingale shall file in this Court either an

advocate’s brief or a no-merit letter and petition to withdraw pursuant to

Turner/Finley within sixty days of the filing of this memorandum.         The

Commonwealth shall have the right to file an amended appellee’s brief in

response to counsel’s filings.

      Case remanded. Panel jurisdiction retained.




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