J-S20040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

RONNIE AUSTIN

                            Appellant              No. 1883 WDA 2014


               Appeal from the PCRA Order of October 31, 2014
               In the Court of Common Pleas of Fayette County
            Criminal Division at Nos.:  CP-26-CR-0000213-1997
                                        CP-26-CR-0000214-1997


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                               FILED MAY 8, 2015

       Ronnie Austin1 appeals the October 31, 2014 order that granted his

Post Conviction Relief Act (“PCRA”)2 counsel’s motion to withdraw as

counsel. Because that order is not a final order and no exceptions apply, we

quash the appeal.

       In an earlier memorandum, a previous panel of this Court set forth a

brief history of this case as follows:

       On November 19, 1997, following a jury trial, Austin was
       convicted of criminal homicide, retaliation against a witness or
       victim, and conspiracy. Thereafter, the trial court sentenced
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1
     In some places in the certified record, Austin’s first name is spelled
“Ronny.” Because Austin uses “Ronnie” in his pro se petition and brief, we
adopt that spelling.
2
       42 Pa.C.S. §§ 9541-46.
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      Austin to a term of life imprisonment. On appeal, this Court
      affirmed Austin’s judgment of sentence on March 23, 1999.
      Commonwealth v. Austin, 737 A.2d 1268 (Pa. Super. 1999)
      (Table).     The Pennsylvania Supreme Court denied Austin’s
      Petition for Allocatur on September 8, 1999.

      Austin filed his first PCRA petition on August 6, 2000, after
      which, PCRA counsel was appointed. The PCRA court denied
      Austin’s petition on August 14, 2000. Austin filed a timely notice
      of appeal on August 30, 2000, and thereafter filed a second
      PCRA petition on September 5, 2000. Austin’s second PCRA
      petition was denied on September 12, 2000, and on September
      14, 2001, this Court affirmed the dismissal of Austin’s first PCRA
      petition.

      Several years thereafter, on October 23, 2007, Austin filed his
      third PCRA petition. On November 20, 2007, the PCRA court
      dismissed Austin’s untimely petition for lack of jurisdiction. This
      Court affirmed the dismissal of Austin’s third PCRA petition on
      January 8, 2009. Austin filed [his fourth pro se PCRA petition]
      on October 6, 2009, which the PCRA court again dismissed as
      untimely on November 18, 2009.

Commonwealth v. Austin, 2068 WDA 2009, slip op. at 1-2 (Pa. Super.

August 26, 2010).

      On August 26, 2010, this Court affirmed the dismissal of Austin’s

fourth PCRA petition. Austin then filed his fifth pro se PCRA petition on July

6, 2012, in which he requested that the PCRA court appoint him counsel. On

July 11, 2012, the PCRA court appointed counsel, who, on December 5,

2012, filed a no-merit letter in support of a motion to withdraw from

representation. The PCRA court allowed counsel to withdraw. However, the

certified record contains no order disposing of Austin’s fifth PCRA petition.

      On June 17, 2013, Austin filed his sixth PCRA petition, and, once more,

the court appointed counsel.     Austin’s counsel filed a no-merit letter and


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motion to withdraw as counsel pursuant to the procedures outlined in

Turner/Finley.3       On October 31, 2014, the PCRA court granted Austin’s

counsel’s motion to withdraw, but took no action on the pending PCRA

petition.

       On November 14, 2014, Austin appealed the order permitting counsel

to withdraw. The PCRA court ordered, and Austin filed, a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).                  On

December 29, 2014, the PCRA court filed a statement in lieu of an opinion

pursuant to Pa.R.A.P. 1925(a). On January 9, 2015, the PCRA court filed an

amended statement in lieu of an opinion, rescinding its previous Rule

1925(a) statement. Therein, the PCRA court indicated that Austin “filed the

instant appeal prematurely and before [the PCRA court] was able to serve

notice of its intention to dismiss the current [p]etition.          Specifically, the

[p]etition has not yet been dismissed by [the PCRA court].”              PCRA Court

Opinion (“P.C.O.”), 1/9/2015, at 1.

       Because of the unusual circumstances of this appeal, we first must

determine whether this Court has jurisdiction to address Austin’s appeal.

Pursuant to Pennsylvania Rule of Appellate Procedure 341, “an appeal may

be taken as of right from any final order of an administrative agency or

lower court.”      Pa.R.A.P. 341(a).           “A final order is any order that: (1)

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3
    See 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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disposes of all claims and of all parties; or (2) is expressly defined as a final

order by statute; or (3) is entered as a final order pursuant to subdivision

(c) of this rule.”4 Pa.R.A.P. 341(b). Because Austin filed the instant appeal

before the PCRA court disposed of all claims in his PCRA petition, the order is

not final. Moreover, the order does not satisfy any of the other definitions of

a final order.

       The order also does not meet the exceptions to the final order rule

that are discussed in Rules 311, 312, and 313. Rule 311 provides that an

interlocutory appeal may be taken as of right from certain enumerated types

of orders. Pa.R.A.P. 311. However, an order allowing counsel to withdraw is

not among them. Thus, Austin is not entitled to an interlocutory appeal as

of right.    In addition, Austin is not entitled to an interlocutory appeal by

permission, see Pa.R.A.P. 312, because the PCRA court has not authorized

such an appeal. The collateral order doctrine, see Pa.R.A.P. 313, does not

allow Austin to proceed.          To be a collateral order, the order must be

“separable from and collateral to the main cause of action.”       Id. Because
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4
       Subdivision (c) provides:

            When more than one claim for relief is presented in an
            action . . . the trial court or other governmental unit may
            enter a final order as to one or more but fewer than all of
            the claims and parties only upon an express determination
            that an immediate appeal would facilitate resolution of the
            entire case.

Pa.R.A.P. 341(c)



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the PCRA court had to review the merits of Austin’s PCRA claims and to find

them to be frivolous to permit counsel to withdraw, the order appealed is not

separable from the PCRA petition. Therefore, it is not a collateral order.

      The instant appeal is not of a final order nor do any of the exceptions

apply. Therefore, we quash the appeal and remand for further proceedings.

We note for the PCRA court that, in addition to his sixth and current PCRA

petition, his fifth petition remains unresolved.

      Appeal quashed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/2015




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