J-A31042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ERIBERTO SANTANA,

                            Appellant                 No. 189 MDA 2015


                  Appeal from the PCRA Order January 6, 2015
                 in the Court of Common Pleas of Berks County
               Criminal Division at No.: CP-06-CR-0005215-2011


BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED JANUARY 06, 2016

        Appellant, Eriberto Santana, appeals pro se from the order denying his

first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We vacate and remand.

        On January 9, 2013, Appellant entered a negotiated guilty plea to two

counts of possession with intent to deliver a controlled substance (PWID). 1

The charges arose from Appellant’s sales of heroin to undercover police

officers.    The same day, pursuant to the agreement, the trial court

sentenced Appellant to a term of incarceration of not less than five nor more


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
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than ten years’ incarceration.         No post-sentence motions or direct appeal

were filed.

       On October 30, 2013, Appellant filed a timely pro se first PCRA

petition raising issues of trial counsel’s ineffectiveness, and challenging his

guilty plea and the discretionary aspects of sentence.        Because Appellant

stated in the petition that he did not want representation during the PCRA

proceedings, the court held a Grazier2 hearing on January 2, 2014.           On

January 8, 2014, the court found that Appellant made a knowing, intelligent,

and voluntary waiver of his right to counsel, and granted his request to

proceed pro se. On June 17, 2014, Appellant filed a pro se amended PCRA

petition in which, in addition to raising a new legality of sentence issue and

incorporating his previously filed PCRA claims, he requested the appointment

of PCRA counsel.       On July 29, 2014, the PCRA court appointed counsel to

represent Appellant, and directed him to file either an amended PCRA

petition detailing Appellant’s eligibility for PCRA relief, or a Turner/Finley3

no-merit letter.

       On November 24, 2014, counsel filed a no-merit letter requesting to

withdraw from representation on the basis that Appellant’s PCRA petition

was untimely and failed to plead and prove a timeliness exception. (See
____________________________________________


2
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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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Turner/Finley No-Merit Letter, 11/24/14, at 2-9). On December 10, 2014,

the court filed a Rule 907 notice.4            Appellant did not respond, and, on

January 6, 2015, the court dismissed the PCRA petition and granted

counsel’s petition to withdraw. Appellant timely appealed pro se.5

        Appellant raises two questions for this Court’s review:

        I.     Whether the [PCRA] court erred in finding that Appellant’s
        guilty plea was entered voluntarily, knowing[ly], and intelligently
        in light of the statutory interpretation in Commonwealth v.
        Hopkins, [117 A.3d 247 (Pa. 2015),] premised upon Alleyne v.
        United States, 133 S.Ct. 2151 (2013)?

        II.   Whether Appellant’s sentence is illegal and subject to
        correction, mandated by PCRA provisions as such challenge was
        asserted in a timely PCRA?

(Appellant’s Brief, at 3) (most capitalization omitted).

        “Our standard of review for an order denying post-conviction relief is

whether the record supports the PCRA court’s determination and whether

the PCRA court’s determination is free of legal error.” Commonwealth v.

Perzel, 116 A.3d 670, 671 (Pa. Super. 2015) (citation omitted).

        Before we reach the merits of Appellant’s issues, we must consider

whether Appellant “was effectively deprived of his right to counsel on . . . his

first PCRA petition.” Commonwealth v. Karanicolas, 836 A.2d 940, 945
____________________________________________


4
    See Pa.R.Crim.P. 907(1).
5
   Appellant filed a timely statement of errors raised on appeal pursuant to
the court’s order on February 23, 2015. See Pa.R.A.P. 1925(b). The court
filed an opinion on March 10, 2015. See Pa.R.A.P. 1925(a).




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(Pa. Super. 2003) (citation omitted); see also Commonwealth v. Stossel,

17 A.3d 1286, 1290 (Pa. Super. 2015) (holding, “where an indigent, first-

time PCRA petitioner was denied his right to counsel . . . this Court is

required to raise this error sua sponte and remand for the PCRA court to

correct that mistake.”).

             Pennsylvania courts have recognized expressly that every
      post-conviction litigant is entitled to at least one meaningful
      opportunity to have . . . issues reviewed, at least in the context
      of an ineffectiveness claim.        This Court has admonished,
      accordingly, that the point in time at which a trial court may
      determine that a PCRA petitioner’s claims are frivolous or
      meritless is after the petitioner has been afforded a full and fair
      opportunity to present those claims. Our Supreme Court has
      recognized that such an opportunity is best assured where the
      petitioner is provided representation by competent counsel
      whose ability to frame the issues in a legally meaningful fashion
      insures the [PCRA] court that all relevant considerations will be
      brought to its attention. The [S]upreme [C]ourt has mandated
      accordingly, that counsel be appointed in every case in which a
      defendant has filed a motion for post-conviction collateral review
      for the first time and is unable to afford counsel. . . .

                                  *    *    *

            Moreover, this rule   [has not been] limited to the mere
      naming of an attorney       to represent an accused, but also
      envisions that counsel so   appointed shall have the opportunity
      and in fact discharge[s]     the responsibilities required by his
      representation. . . .

                                  *    *    *

            Once appointment has been made, counsel may seek to
      withdraw, after a thorough review of the record has been
      made, where non-frivolous issues justifying the pursuit of post-
      conviction collateral relief are lacking.   Counsel may not,
      however, accept appointment, thereby engendering the reliance
      of both his client and the court, without undertaking of


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     record either to advance his client’s claims or certify their
     lack of merit.

            In addressing the petitioner’s right to counsel under the
     precursor to the PCRA, we admonished that when appointed
     counsel fails to amend an inarticulately drafted pro se [post
     conviction]   petition,   or   fails  otherwise   to    participate
     meaningfully, this [C]ourt will conclude that the proceedings
     were, for all practical purposes, uncounseled and in violation of
     the representation requirement. . . . Both this Court and our
     Supreme Court have recognized that a post[-]conviction petition
     is effectively uncounseled under a variety of circumstances
     whenever omissions of record demonstrate that counsel’s
     inaction deprived the petitioner the opportunity of legally trained
     counsel to advance his position in acceptable legal terms.

Karanicolas, supra at 945-46 (citations, quotation marks, and some

brackets omitted) (emphases in original).

     Instantly, appointed counsel filed a Turner/Finley no-merit letter.

            Before an attorney can be permitted to withdraw from
     representing a petitioner under the PCRA, Pennsylvania law
     requires counsel to file and obtain approval of a no-merit letter
     pursuant to the mandates of Turner/Finley. The no-merit letter
     should include a description of the nature and extent of the
     attorney’s review, a list of the issues that the PCRA petitioner
     wishes to have reviewed, and an explanation of why the issues
     lack merit. Substantial compliance with these requirements will
     satisfy the criteria.

Id. at 947 (citations, quotation marks, and emphases omitted).

     Here, PCRA counsel’s petition for leave to withdraw was based solely

on counsel’s mistaken conclusion that Appellant’s current PCRA petition was




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untimely filed.6     (See Turner/Finley Letter, 11/24/14, at 2-9).             Hence,

counsel failed to identify Appellant’s issues or explain why they lacked merit,

in compliance with Turner/Finley. (See id.); see also Commonwealth v.

Glover, 738 A.2d 460, 464 (Pa. Super. 1999) (holding no-merit letter must

identify each issue petitioner wishes to raise, and explain whether specific

claim has been previously litigated, waived for failure to raise it on direct

appeal, or frivolous for some other reason).                Although counsel did note

Appellant’s Alleyne issue, (see Turner/Finley Letter, at 5-9; see also

Amended PCRA Petition, 6/17/14, at 2), his analysis was premised on his

misconception that Appellant’s PCRA petition was untimely, and considered

only whether       Alleyne creates a PCRA timeliness exception.                     (See

Turner/Finley Letter, at 5-9).            Counsel’s Turner/Finley letter neither

advanced Appellant’s claims nor certified their lack of merit.                      See

Karanicolas, supra at 946.

       Under these circumstances, we cannot conclude that the record

reveals any “meaningful participation” by PCRA counsel. Id. at 947

(remanding for appointment of new counsel where appointed counsel

incorrectly    determined      that    PCRA      petition    was   untimely   and    his

Turner/Finley letter did not evidence “meaningful participation”).              Thus,
____________________________________________


6
  Appellant was sentenced on January 9, 2013. Because he did not file a
direct appeal his judgment of sentence became final on February 8, 2013.
See 42 Pa.C.S.A. § 9545(b)(3). Therefore, his October 30, 2013 PCRA
petition was timely. See 42 Pa.C.S.A. § 9545(b)(1).



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Appellant’s first PCRA petition proceeding was for all practical purposes

uncounseled, depriving him of “the opportunity of legally trained counsel to

advance his position in acceptable legal terms . . . .” Karanicolas, supra at

946 (citation and internal quotation marks omitted).

      Hence, we are constrained to conclude that the PCRA court erred in

granting counsel’s petition to withdraw and in dismissing Appellant’s PCRA

petition.   See Perzel, supra at 671.        We vacate the court’s order and

remand for the appointment of new counsel. Newly appointed counsel may

either proceed to develop and advocate meritorious claims or seek to

withdraw, “after a thorough review of the record has been made, where non-

frivolous issues justifying the pursuit of post-conviction collateral relief are

lacking.” Karanicolas, supra at 946-47.

      Order vacated.    Case remanded for proceedings consistent with this

decision. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2016




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