J-S16003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                             :                  PENNSYLVANIA
                             :
           v.                :
                             :
                             :
 WILLIAM SCOTT ALLISON       :
                             :
                Appellant    :             No. 1418 MDA 2017
                             :

               Appeal from the PCRA Order August 17, 2017
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0000363-2015,
                         CP-22-CR-0004206-2015


BEFORE:   BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY BOWES, J.:                         FILED AUGUST 31, 2018

     William Scott Allison appeals pro se from the order denying his PCRA

petition, and granting counsel leave to withdraw pursuant to Commonwealth

v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa.Super. 1988) (en banc). We reverse and remand for further

proceedings.

     This matter relates to Appellant’s negotiated guilty plea on November

25, 2015. The facts presented at the guilty plea hearing established that a

thirteen-year-old female, M.B., temporarily stayed at Appellant’s residence.

On one occasion, Appellant inserted his finger into M.B.’s vagina, and

attempted to have oral and vaginal sex with her.     M.B. kicked Appellant,

causing him to stop.   Appellant pled guilty to involuntary deviate sexual

intercourse with a person less than sixteen, attempted rape, attempted

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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involuntary deviate sexual intercourse, and aggravated indecent assault. The

plea bargain called for a sentence of fifteen to thirty years incarceration, which

the trial court thereafter imposed. Appellant’s counsel “waive[d] reading of

[Appellant’s] post-sentencing rights as those were contained in the guilty plea

colloquy.” N.T., 11/25/15, at 21.

       No direct appeal was filed. Appellant filed a timely pro se PCRA petition,

asserting that his sentence was unconstitutionally imposed in light of

Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016).1 Pro se PCRA petition,

12/1/16, at 3-4. He requested “reconsideration” of his sentence and explicitly

stated that he did not wish to withdraw his plea. The pro se petition did not

raise any issue concerning a failure to file a direct appeal.

       Counsel was appointed and ordered to file an amended PCRA petition or

no-merit letter. On July 14, 2017, PCRA counsel filed a Turner/Finley no-

merit letter, which addressed Appellant’s Wolfe claim and concluded that it

lacked merit for multiple reasons.         The letter also stated that counsel had

reviewed “letters of communication with [Appellant],” Turner/Finley letter,

7/14/17, at unnumbered 3, and addressed three additional claims that

Appellant raised during those communications. Those claims were that plea

counsel was ineffective in recommending that he accept the plea, that his
____________________________________________


1 Wolfe held that the proof at sentencing provision of 42 Pa.C.S. § 9718(c) is
unconstitutional and not severable. Appellant was charged with crimes that,
at the time of his plea, would have resulted in mandatory minimum sentences
under § 9718 had the Commonwealth sought their imposition. Appellant
received a negotiated sentence and did not receive a mandatory minimum
sentence.

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sentence was illegal, and that plea counsel failed to file an appeal at

Appellant’s request. The letter addressed why PCRA counsel believed those

additional claims lacked merit.

      The PCRA court thereafter issued a joint notice of intent to dismiss the

PCRA petition and memorandum addressing the merits of the claims discussed

in the Turner/Finley letter. The notice of intent to dismiss also granted PCRA

counsel’s petition to withdraw without waiting for any response by Appellant.

Finally, the notice of intent to dismiss advised Appellant of his right to proceed

pro se or with privately retained counsel, accompanied by a footnote stating

that the Turner/Finley no-merit letter had failed to do so.

      Appellant filed pro se objections on August 14, 2017. The objections

asserted that PCRA counsel ignored multiple letters sent by Appellant, and

raised a boilerplate assertion of PCRA counsel ineffectiveness. On August 17,

2017, the PCRA court dismissed the petition.

      Appellant filed a timely notice of appeal, and the PCRA court adopted

the memorandum issued in the notice as its opinion. The matter is ready for

our review. Appellant raises the following issues:

      I. Was it error to deny the PCRA petition after it was demonstrated
      per the record that PCRA counsel never once contacted Appellant,
      failed to respond to letters and as the court noted, counsel never
      sent Appellant a copy of the [Turner/Finley no-merit] letter?

      II. Was it error to deny the PCRA petition after the court was
      provided three instances of record that showed plea counsel had
      been asked to file a direct appeal?




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      III. Can plea of guilt counsel be found ineffective after stating that
      if Appellant did not plead guilty, "they would take my children and
      I would never see them again"?

Appellant’s brief at 4.

      We examine the denial of a PCRA petition under the following principles.

            We review a denial of PCRA relief to determine whether the
      findings of the PCRA court are supported by the record and free
      of legal error. A PCRA court's credibility findings are to be
      accorded great deference, and where supported by the record,
      such determinations are binding on a reviewing court. A PCRA
      court's legal conclusions, however, are reviewed de novo.

Commonwealth v. Green, 168 A.3d 173, 175 (Pa.Super. 2017) (quotation

marks and citations omitted).

      Appellant’s first issue asserts that counsel failed to supply him a copy of

the no-merit letter, a conclusion that is bolstered by the PCRA court’s notice

of intent to dismiss, which noted that PCRA counsel failed to inform Appellant

of his rights. Relatedly, our review of the no-merit letter establishes that PCRA

counsel attached a copy of an entirely separate letter, which merely

summarized the contents of the no-merit letter.

      We find that the PCRA court erroneously permitted counsel to withdraw

because he failed to satisfy the technical aspects of Turner/Finley.           See

Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa.Super. 2012)

(“[C]ounsel 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.”). Therefore, the court should have not

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permitted counsel to withdraw. See Commonwealth v. Wrecks, 931 A.2d

717, 721 (Pa.Super. 2007) (“If counsel fails to satisfy the foregoing technical

prerequisites of Turner/Finley, the court will not reach the merits . . . but,

rather, will merely deny counsel's request to withdraw. Upon doing so, the

court will then take appropriate steps, such as directing counsel to file a

proper Turner/Finley request[.]”).

       We therefore vacate and remand for the appointment of new counsel to

review this case, as the technical requirements were not met and the PCRA

court failed to deny the request to withdraw. Since we direct the appointment

of new counsel, we decline to address whether the PCRA court erroneously

permitted PCRA counsel to withdraw as a matter of substance.2

       Order reversed. Jurisdiction relinquished.




____________________________________________


2 We note that the no-merit letter addressed Appellant’s claim that he
requested his counsel to file a direct appeal by opining that Appellant was
“required to prove that he had an issue that deserved an attempt at appeal.”
Turner/Finley letter, 7/14/17, at unnumbered 8, ¶ 26 (emphasis added).
This analysis was incorrect. See Roe v. Flores–Ortega, 528 U.S. 470 (2000)
(“We have long held that a lawyer who disregards specific instructions from
the defendant to file a notice of appeal acts in a manner that is professionally
unreasonable.”) (citation omitted).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/31/2018




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