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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

THOMAS SCOTT DRASS,

                          Appellant                   No. 1030 WDA 2014


               Appeal from the PCRA Order June 10, 2014
              In the Court of Common Pleas of Blair County
           Criminal Division at No(s): CP-07-CR-0001007-2005


BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY BOWES, J.:                                   FILED MAY 18, 2015

     Thomas Scott Drass appeals from the June 10, 2014 order dismissing

his second PCRA petition as untimely filed. We direct counsel to either file

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

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

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc )

(“Turner/Finley”).

     On January 5, 2005, Appellant arrived at his maternal grandparents’

home, and shot his grandfather, Dwayne Chamberlain, at point blank range.

Dwayne’s wife Kathryn was present and unsuccessfully attempted to

resuscitate her husband. Appellant left the home, but was arrested when he

returned a few hours later.          Appellant had purchased the shotgun and

ammunition used in the shooting earlier that day. On September 25, 2006,
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Appellant pled guilty to third-degree murder, and, three days later, he was

sentenced to twenty to forty years incarceration. The sentencing court had

the benefit of a presentence report. In the ensuing direct appeal, Appellant

claimed that his sentence was excessive given “his history of mental illness

and lack of a prior criminal record.” Commonwealth v. Drass, 935 A.2d 9

(Pa.Super. 2007) (unpublished memorandum at 2). We rejected Appellant’s

challenge to the discretionary aspects of his sentence and affirmed on

August 6, 2007, id., and Appellant did not seek allowance of appeal with our

Supreme Court.

      The following month, Appellant filed a timely PCRA petition, counsel

was appointed, and counsel filed an amended PCRA petition.          Appellant

claimed that his guilty plea was induced by ineffective assistance of counsel,

who had been able to negotiate a guilty plea to third degree murder in the

face of the Commonwealth’s desire to pursue a first-degree murder

conviction.   Plea counsel’s efforts were successful because he procured a

physiological evaluation by Dr. Joseph Antonowicz, whose report supported a

diminished capacity defense. See Trial Court Opinion, 9/8/08, at 4-5. After

an evidentiary hearing, PCRA relief was denied on September 8, 2008.

Appellant did not file an appeal from the denial of PCRA relief.

      On July 24, 2013, Appellant filed a motion seeking modification of his

sentence, for appointment of counsel, and requesting permission to proceed

in forma pauperis. Appellant sought a reduction in his sentence due to his

mental health issues and lack of a prior criminal record, which he asserted

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were not revealed to the sentencing court. Appellant also claimed that he

was on drugs when he killed his grandfather and that he expected a lesser

sentence when he tendered an open guilty plea to third degree murder. The

trial court properly treated the motion for modification of sentence as a

PCRA petition and then granted Appellant the right to proceed in forma

pauperis.        The    PCRA     court    appointed    counsel,1   and,   over   the

Commonwealth’s objection, held a hearing, which was not transcribed.

       Thereafter, the PCRA court denied relief based upon the untimeliness

of the 2013 petition.          This appeal followed.      The issue presented is,

“Whether the Trial Court erred in dismissing the Appellant’s current PCRA

petition.”   Appellant’s brief at 2.      Specifically, Appellant maintains that his

guilty plea was involuntary in that he “is unable to read or write and he was

under medication which affected his mind” and that plea counsel misled him

“into believing he would not get the maximum sentence after an open plea.”
____________________________________________


1
  We note that Pa.R.Crim.P. 904(D) provides, “On a second or subsequent
petition, when an unrepresented defendant satisfies the judge that the
defendant is unable to afford or otherwise procure counsel, and an
evidentiary hearing is required as provided in Rule 908, the judge shall
appoint counsel to represent the defendant.” Except as provided in
Pa.R.Crim.P. 907, a hearing under Pa.R.Crim.P. 908 is mandated, in
pertinent part, when “the petition for post-conviction relief or the
Commonwealth's answer, if any, raises material issues of fact.”
Pa.R.Crim.P. 908(A)(2). Under Pa.R.Crim.P. 907, the PCRA court may deny
PCRA relief without a hearing, if, after review of the pleadings, it “is satisfied
. . . that there are no genuine issues concerning any material fact and that
the defendant is not entitled to post-conviction collateral relief, and no
purpose would be served by any further proceedings[.]” Pa.R.Crim.P. Rule
907(1).



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Id. at 3. Additionally, Appellant asserts that his sentence was “too severe

given his lack of a criminal record.” Id.

      While these issues are purportedly raised on appeal, counsel, in the

body of his brief, has not advocated on behalf of his client’s positions.

Counsel has maintained that this appeal is frivolous. Appellant’s brief at 6.

If counsel is attempting to withdraw, he must follow the mandates of

Turner/Finley, which outline the procedure for withdrawal in the PCRA

context.

      Commonwealth v. Jackson, 965 A.2d 280 (Pa.Super. 2009) is

instructive.   Therein, the defendant filed a second PCRA petition, and

counsel was appointed. After it conducted an evidentiary hearing, the PCRA

court then sua sponte dismissed counsel.       The defendant filed a pro se

appeal, and we remanded for the appointment of new counsel. We observed

that, even though a second-time PCRA petition would not normally be

entitled to court-appointed counsel, once counsel is appointed, such

appointment remains “effective throughout the post-conviction collateral

proceedings, including any appeal from disposition of the petition for post-

conviction collateral relief.”   Id. at 283 (quoting Pa.R.Crim.P. 904(F)(2)

(emphasis in Jackson).       We held that “the PCRA court erred when it

relieved [PCRA counsel] of his representation duties before litigation of the

issue presented at the evidentiary hearing was complete,” and we remanded

for the appointment of counsel. Id. at 284 (footnote omitted).




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      As it applies herein, Jackson requires an attorney to continue to

operate as counsel during litigation of the appeal from the denial of PCRA

relief. Appellant’s counsel has failed to fulfill that obligation as he abandons

his client’s interests by arguing against relief for his client. Counsel must file

an advocate’s brief or counsel may, of course, seek to withdraw. However,

the “Turner/Finley decisions provide the manner for post-conviction

counsel to withdraw from representation.” Commonwealth v. Rykard, 55

A.3d 1177, 1184 (Pa.Super. 2012). As we articulated in Rykard, id at 1184

(footnote omitted):

            The holdings of those cases mandate an independent
      review of the record by competent counsel before a PCRA court
      or appellate court can authorize an attorney's withdrawal. The
      necessary independent review requires counsel to file a “no-
      merit” letter detailing the nature and extent of his review and list
      each issue the petitioner wishes to have examined, explaining
      why those issues are meritless. The PCRA court, or an appellate
      court if the no-merit letter is filed before it, see Turner, supra,
      then must conduct its own independent evaluation of the record
      and agree with counsel that the petition is without merit. See
      [Commonwealth v.] Pitts, [981 A.2d 875], 876 n.1. [Pa.
      2009].

            In Commonwealth v. Friend, 896 A.2d 607 (Pa.Super.
      2006) abrogated in part by Pitts, supra, this Court imposed
      additional requirements on counsel that closely track the
      procedure for withdrawing on direct appeal. Pursuant to Friend,
      counsel is required to contemporaneously serve upon his client
      his no-merit letter and application to withdraw along with a
      statement that if the court granted counsel's withdrawal request,
      the client may proceed pro se or with a privately retained
      attorney. Though Chief Justice Castille noted in Pitts that this
      Court is not authorized to craft procedural rules, the Court did
      not overturn this aspect of Friend as those prerequisites did not
      apply to the petitioner in Pitts. See Pitts, supra at 881
      (Castille, C.J. concurring).

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      In this case, if counsel is seeking to withdraw, he must petition to

withdraw, serve that application on his client, and inform Appellant that he

can proceed pro se or with retained counsel for purposes of this appeal.

Counsel’s petition to withdraw must set forth that he has independently

reviewed the record and found no meritorious issues to be raised.           To

withdraw, counsel also must file a compliant no-merit brief that both sets

forth each issue that Appellant wants to raise and establishes why such issue

does not provide grounds for PCRA relief.

      Record remanded.     Counsel shall comply with the mandates of this

decision within sixty days of remand of the record. Jurisdiction is retained.




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