J-S63027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

BRANDON S. BAKER

                            Appellant               No. 320 WDA 2017


             Appeal from the PCRA Order Dated December 7, 2016
               In the Court of Common Pleas of Somerset County
              Criminal Division at No(s): CP-56-CR-0000481-2015
                                         CP-56-CR-0000639-2006

BEFORE: BOWES, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SOLANO, J.:                      FILED DECEMBER 26, 2017

       Appellant Brandon S. Baker appeals from the order dismissing his first

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

§§ 9541-9546, in two separate cases, Docket Number CP-56-CR-0000639-

2006 and Docket Number CP-56-CR-0000481-2015.             Appellant’s counsel

also filed a Turner/Finley1 petition to withdraw and Appellant has filed a

pro se “Emergency Petition for the ‘Writ of Habeas Corpus.’”      The appeal

from the order at Docket No. 639-06 is quashed. For Docket No. 481-15,

after careful review, we deny counsel’s petition to withdraw and order

counsel to file an advocate’s brief or a new Turner/Finley brief within thirty

days of the date of this memorandum. The Commonwealth may file a brief

within thirty days after service of the brief from Appellant’s counsel.
____________________________________________
1
  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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Additionally, we forward Appellant’s “Emergency Petition for the ‘Writ of

Habeas Corpus’” to counsel for further action.

       On March 6, 2007, at Docket No. 639-06, Appellant pleaded guilty to

driving under the influence (“DUI”) of alcohol in violation of Section 3802(c)

of the Vehicle Code (highest rate of alcohol, blood alcohol concentration

(“BAC”) of 0.16% or higher, second offense). See 75 Pa. C.S. 3802(c). On

May 3, 2007, Appellant was sentenced to confinement for four months to

five years. N.T., 5/3/07, at 11.2 On July 8, 2015, Appellant’s parole was

revoked, and he was ordered “to serve the balance of his sentence.” Order,

7/8/15, at 1.

       For Docket No. 481-15, we adopt the facts and procedural history as

described by the PCRA court:

       The record reflects that [Appellant] entered a negotiated plea of
       guilty to one count of Driving Under the Influence, a fourth
       offense under 75 Pa. C. S. A. § 3802(a)(1) with a refusal to
       undergo blood alcohol testing, graded as a misdemeanor of the
       first degree. On January 7, 2016, he was sentenced to serve not
       less than 12 months nor more than 5 years in a State
       Correctional Institution.     In addition, because this was
       [Appellant]’s third offense, his sentence included a mandatory
       minimum sentence of one year incarceration pursuant to 75 Pa.
       C. S. A. § 3803(b)(2). No post sentence motions or appeal were
       filed.

PCRA Ct. Mem., 12/27/16, at 1 (not paginated).

       On August 4, 2016, Appellant, acting pro se, filed a PCRA petition that

listed both Docket Nos. 639-06 and 481-15. In that petition, for Docket No.
____________________________________________
2
  Appellant was also sentenced on two additional DUIs, all on separate
dockets, on that date.

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481-15, Appellant contended that he was entitled to relief because police

“did not obtain a search warrant . . . to draw blood from a person[’]s body

for the level of BAC in a conviction” and should not have obtained his

“medical records [without] consent and[/]or order of the court.”              Pro se

PCRA Pet., 8/4/16, at 2 (not paginated). Appellant continued that he “in fact

had a right to refuse under the 4th Amendment,” citing to Birchfield v.

North Dakota, 136 S. Ct. 2160 (2016). Pro se PCRA Pet., 8/4/16, at 3.3

Appellant also argued that his “medical records are protected by federal and

state    regulations,”    specifically   the   Health   Insurance   Portability   and

Accountability Act of 1996 (“HIPAA”) and “PA code 255, Pa code 257, and

Act 63.” Id. Appellant further alleged “[e]rrors” in “sentencing,” including

that he received “[e]nhanced penalties for refusal” at both Docket Nos. 639-

06 and 481-15. Id. at 2-4. Finally, he requested “[d]iscovery information”

for Docket No. 481-15. Id. at 4.

        On August 9, 2016, the PCRA court appointed private counsel,

Megan Will, Esquire, to represent Appellant for the cases at both docket

numbers. Order, 8/9/16, at 1. PCRA counsel did not file an amended PCRA

petition for either case.


____________________________________________
3
   Although Appellant’s pro se PCRA petition never specifically named
Birchfield v. North Dakota, he cited to United State Supreme Court docket
numbers 14-1468, 14-1470, and 14-1507, which were the docket numbers
for Birchfield and the two other cases consolidated with Birchfield, and he
included the date Birchfield was decided, June 23, 2016. Pro se PCRA Pet.,
8/4/16, at 3, 5.

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       On November 29, 2016, the PCRA court denied relief for the claim

Appellant raised regarding Docket No. 639-06. The court served this order

on PCRA counsel, who did not file a notice of appeal.

       Following a hearing on the PCRA petition for Docket No. 481-15, the

PCRA court “took the matter under advisement[.]”            PCRA Ct. Mem.,

12/27/16, at 2. On December 27, 2016, the PCRA court dismissed the PCRA

petition for Docket No. 481-15 and filed a memorandum in support of its

order.    Based upon the copies of that December 27, 2016 order and the

docket in the certified record, it appears that PCRA counsel was not served

with the December 27, 2016, order, although a copy apparently was mailed

to Appellant on December 29, 2016.4 PCRA counsel never filed a notice of

appeal.

       On December 29, 2016, Appellant mailed a letter to the Clerk of

Courts asking for an update on Docket No. 481-15. On January 3, 2016, the

Clerk of Courts sent Appellant a copy of the docket and a “court summary”

for Docket No. 481-15.          Service is shown on both the docket and in a



____________________________________________
4
  The docket states that copies of the PCRA court’s memorandum and order
were served on “Somerset County Adult Probation Unit,” “Somerset County
District Attorney’s Office,” “Somerset County Prison,” “Somerset County
Public Defender’s Office,” and “Baker, Brandon Scott Sr.” All of these
recipients are listed as served via interoffice mail, except for “Baker,
Brandon Scott Sr.,” who is listed as having been served via first class mail.
The docket does not state that the memorandum and order were served on
Appellant’s PCRA counsel, who was private counsel and not an attorney with
the public defender’s office.

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handwritten note on the bottom of the Clerk’s letter, but the record does not

reflect service on Appellant’s counsel.

      On February 7, 2017, Appellant filed this appeal.       Appellant’s pro se

notice of appeal listed both Docket Nos. 639-06 and 481-15.

      Subsequently, Appellant filed a pro se petition for an extension of time

to file a brief and for appointment of counsel. On March 23, 2017, this Court

entered the following order:

      AND NOW, upon consideration of Appellant Baker’s pro se
      March 17, 2017 “Petition for Extension of time to File Brief and
      Appointed Counsel,” and upon review of the lower court docket
      noting Megan E. Will, Esquire, was appointed to represent
      Appellant on August 9, 2016, and as there is no indication that
      counsel was granted permission to withdraw, the following is
      hereby ORDERED: the record is REMANDED to the trial court
      for a period of time not to exceed thirty (30) days during which
      time the trial court shall make a determination as to the status
      of Appellant's counsel. If Appellant has counsel, then counsel
      shall enter her appearance in this Court forthwith. If Appellant is
      not currently represented by counsel, but is entitled to the
      appointment of counsel, the trial court shall appoint counsel.
      The lower court shall notify this Court, within thirty days, of any
      actions taken thereon. The briefing schedule is SUSPENDED
      and a new briefing schedule shall be set upon the return of the
      record to this Court. Jurisdiction of this Court is RETAINED.

Order, 3/23/17 (emphasis in original).

      On April 11, 2017, the PCRA court “determined that Ms. Will has not

withdrawn her representation, and therefore she continues to represent

[Appellant] on the record.” Order, 4/11/17, at 2.

      On May 3, 2017, at 9:41 A.M., Appellant, pro se, filed a Pa.R.A.P.

1925(b)   statement    raising   seventeen   issues,   some    of   which   were

substantially identical to each other. Some of these issues were not raised
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in his PCRA petition.      Some issues related only to his case at Docket No.

639-06.     Later that morning, at 11:20 A.M., PCRA counsel filed a concise

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

raising the following issues:

       Whether the [PCRA c]ourt was incorrect that:

          1. The Appellant’s privacy rights were violated, as
          enumerated under the Health Insurance Portability and
          Accountability Act of 1996 when his medical records were
          sent without his consent to the Commonwealth of
          Pennsylvania to aid in his prosecution.

          2. The Appellant was                 illegally   sentenced   in   the
          aforementioned cases.

       On May 8, 2017, PCRA counsel filed a Turner/Finley letter and brief

with this Court, along with a motion to withdraw as counsel.5 This counseled

brief to this Court raised the following issue:

       Whether the [PCRA] court’s findings concerning Appellant’s
       [PCRA] petition were supported by the record, such that the
       [PCRA] court’s legal conclusions that Appellant was not illegally
       sentenced and his rights of privacy were not violated were
       appropriate.

Turner/Finley Brief at 7. Except for a bald heading that “the [PCRA] court’s

dismissal of Appellant’s PCRA was not supported by the record as Appellant

was illegally sentenced and his rights of privacy under HIPAA were violated,”

the Turner/Finley brief cites no legal authority and merely argues why

counsel believes Appellant’s PCRA petition to be frivolous:
____________________________________________
5
 Counsel’s Turner/Finley brief attached counsel’s Rule 1925(b) statement
and pro se Appellant’s Rule 1925(b) statement, which suggests counsel was
aware of the issues Appellant wished to raise on appeal.

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     [Appellant]’s sentence falls within the standard guidelines for the
     offense committed and the challenge to this sentence occurred
     some thirteen (13) months after Appellant was sentenced. As
     such, the sentence was appropriately granted by the [trial c]ourt
     and his claim is untimely . . .

     The record is clear that [the Chemical Testing Warning and
     Report of Refusal to Submit a Chemical Testing as Authorized by
     Section 1547 form, a document forming the basis for Appellant’s
     HIPAA issue,] was not a form that would give rise to HIPAA
     protections or that would, in any way, be violative of Appellant’s
     rights to privacy.    The [PCRA c]ourt’s dismissal is wholly
     supported by the record and the conclusions of law were
     appropriate.

Id. at 13. Counsel concluded that Appellant’s “claim of an illegal sentence is

untimely and the form in question is not a form protected by HIPAA.” Id. at

14. The Turner/Finley brief did not address the issue raised in Appellant’s

pro se PCRA petition — whether Appellant was subjected to enhanced

sentences for refusing to submit to a blood test without a search warrant in

violation of the Fourth Amendment and Birchfield, 136 S. Ct. 2160. See

Pro se PCRA Pet., 8/4/16, at 2-3, 5; see also Pro se Statement at 1-2 ¶¶ 4-

5.

     On May 12, 2017, Appellant, pro se, filed an application for

appointment of counsel. This Court denied the application on May 30, 2017.

     On May 31, 2017, the PCRA court filed an order that its memorandum

of December 27, 2016, would serve as its opinion pursuant to Pa.R.A.P.

1925(a).

     On June 21, 2017, the Commonwealth filed its brief with a one-

sentence argument: “Appellant’s PCRA petition was properly dismissed for

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reasons discussed in Appellant’s brief and the [PCRA] court’s Order and

Memorandum dated December 27, 2016.” Commonwealth’s Brief at 2.

        On June 27, 2017, Appellant filed a pro se appellate brief.        On

November 13, 2017, Appellant, pro se, filed in this Court an “Emergency

Petition for the ‘Writ of Habeas Corpus,’” contending that his sentences are

illegal and should be vacated.     Emergency Pet. for the “Writ of Habeas

Corpus,” 11/13/17, at 1-3.     On November 30, 2017, the Commonwealth

filed a response to the “Emergency Petition.”

        Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the record evidence and free of legal error. Commonwealth v. Wilson,

824 A.2d 331, 333 (Pa. Super.) (en banc), appeal denied, 839 A.2d 352

(Pa. 2003); see also Commonwealth v. Andrews, 158 A.3d 1260, 1262-

63 (Pa. Super. 2017).

                 The Appeal Regarding Docket No. 639-06

        Pa.R.A.P. 341 requires that separate notices of appeal be filed from

cases at different docket numbers. Appellant’s notice of appeal stated that it

was “from the order entered in this matter on the 27th day of December,

2016[.]”    No order was entered at Docket No. 639-06 on December 27,

2016.    The PCRA petition at No. 639-06 was dismissed on November 29,

2016, and, although PCRA counsel was served with that order, no notice of

appeal was timely filed from that order. Thus, insofar as Appellant’s appeal


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seeks to raise issues regarding the order dismissing his PCRA petition at

Docket No. 639-06, we do not consider it.6

                  The Appeal Regarding Docket No. 481-15

                                       Jurisdiction

       Appellant’s pro se appeal from the PCRA court’s December 27, 2016

order dismissing his petition at Docket No. 481-15 was filed on February 7,

2017. Because an appeal must be filed no later than thirty days after entry

of the order from which the appeal is taken, Pa.R.A.P. 903(a), Appellant’s

appeal is untimely. We decline to dismiss it, however, because it is apparent

that there was a breakdown in the PCRA court’s operations that resulted in a

failure to properly serve Appellant’s counsel with notice of the December 27,

2016 order. We therefore deem Appellant’s February 7, 2017 appeal to be

properly before this Court.

                           Petition to Withdraw as Counsel

       Before we review Appellant’s claim, we must ascertain whether

counsel satisfied the requirements to withdraw.              Commonwealth v.

Freeland, 106 A.3d 768 (Pa. Super. 2014).              The Court in Freeland

explained:

       The Turner/Finley decisions provide the manner for           post-
       conviction counsel to withdraw from representation.           The
____________________________________________
6
  Appellant, within sixty days of this Court’s disposition of the instant PCRA
petition, may file another PCRA petition addressing whether PCRA counsel
should have filed a notice of appeal for Docket No. 639-06.
Commonwealth v. Hernandez, 79 A.2d 649, 651-52 (Pa. Super. 2013);
see 42 Pa.C.S. § 9545(b)(2).

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     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.

     In [addition,] 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.

Freeland, 106 A.3d at 774-75 (emphasis added; citations omitted).

     Neither the Turner/Finley “no-merit” letter to Appellant nor the

Turner/Finley Brief to this Court list all of the issues that, according to

Appellant’s pro se PCRA petition, Appellant wishes to have examined; nor do

they explain why PCRA counsel believes those issues to be meritless. See

Freeland, 106 A.3d at 774-75 (the “no-merit” letter must “list each issue

the petitioner wishes to have examined” (emphasis added)).               In

particular, Appellant alleged in his PCRA petition that he was subject to

enhanced sentences for refusing to submit to a blood test without a search

warrant in violation of the Fourth Amendment and Birchfield, 136 S. Ct.

2160. Pro se PCRA Pet., 8/4/16, at 2-4. This issue is not addressed in PCRA

counsel’s Turner/Finley “no-merit” letter or brief.

     Appellant also contends that his sentence improperly included a

mandatory minimum.       See Pro se PCRA Pet., 8/4/16, at 2 (“[e]rrors

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sentencing [within] the para[m]eters”). Although the Turner/Finley Brief,

at 13, states that “[Appellant]’s sentence falls within the standard guidelines

for the offense committed” and that “the challenge to this sentence occurred

some thirteen (13) months after Appellant was sentenced,” Turner/Finley

Brief at 13, counsel does not otherwise explain why Appellant’s mandatory

minimum sentence claim does or does not lack merit.

        Finally, Appellant alleged that the Commonwealth is in violation of

HIPAA. PCRA Pet., 8/4/16, at 2. Although PCRA counsel briefly states that

“[t]he record is clear that [the Chemical Testing Warning and Report of

Refusal to Submit a Chemical Testing as Authorized by Section 1547 form]

was not a form that would give rise to HIPAA protections or that would, in

any way, be violative of Appellant’s rights to privacy,” Turner/Finley Brief

at 13, she does not explain why Appellant’s issue lacks merit.7

____________________________________________
7
    On this issue, the PCRA court wrote:

        Turning to the HIPAA issue, we note that the document
        challenged by [Appellant] is not a document produced or
        provided by a medical facility. Rather a form identified as a DL-
        26, “Chemical Testing Warnings and Report Of Refusal To Submit
        To Chemical Testing . . .” is the document in question which was
        marked and admitted, without objection, as Commonwealth’s
        Exhibit “A” during the hearing in this matter. There is nothing in
        the record or on the Exhibit itself which suggests that this is
        anything other than a document prepared by the arresting
        Trooper which, inter alia, memorializes that the Trooper read the
        implied consent information to [Appellant] and that [Appellant]
        refused to submit to a chemical test of his blood. We find
        nothing in this record nor in the arguments of counsel, which
        establishes that this is a document protected by HIPAA.
        Accordingly, we find no merit in this argument.
(Footnote Continued Next Page)
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       Because PCRA counsel’s Turner/Finley “no-merit” letter and brief

failed to comply with the requirements articulated in Freeland, 106 A.3d at

774-75, we deny counsel’s petition to withdraw and order counsel to submit

either an advocate’s brief or a new Turner/Finley brief within thirty days of

the date of this memorandum that fully complies with the requirements set

forth in Freeland. The Commonwealth may file a brief within thirty days of

service of the brief from Appellant’s counsel.8

       Appellant’s Emergency Petition for “Writ of Habeas Corpus”

       Appellant’s November 13, 2017 pro se “Emergency Petition for the

‘Writ of Habeas Corpus,’” contends that his sentences are illegal and should

be vacated. Emergency Pet. for the “Writ of Habeas Corpus,” 11/13/17, at

1-3.    Because we deny counsel’s petition to withdraw and are ordering

counsel to file an advocate’s brief or a compliant Turner/Finley brief, we

refer Appellant’s pro se petition to counsel for further action.        See

Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (stating, “we

reiterate that the proper response to any pro se pleading is to refer the

pleading to counsel, and to take no further action on the pro se pleading

unless counsel forwards a motion” to change counsel).


                       _______________________
(Footnote Continued)

PCRA Ct. Mem., 12/27/16, at 3.
8
   If the Commonwealth does not intend to file a brief in response, we
request that the Commonwealth send a letter to this Court’s Prothonotary
informing this Court of that decision as soon as possible.

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      The appeal from the order at Docket No. 639-06 is quashed.        With

respect to the appeal from the order at Docket No. 481-15, we order the

following: counsel’s petition to withdraw denied; Appellant’s pro se petition

referred to counsel; Appellant’s counsel ordered to file an advocate’s brief

or a new Turner/Finley brief within thirty days of the date of this

memorandum, after which the Commonwealth may file a brief within thirty

days of Appellant’s counsel’s brief. Jurisdiction retained.




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