J-S67010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAVIER RAMOS                               :
                                               :
                       Appellant               :   No. 470 EDA 2018

                  Appeal from the PCRA Order January 17, 2018
                 In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0002292-2012,
                             CP-39-CR-0002296-2012


BEFORE:      OTT, J., NICHOLS, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                                FILED JANUARY 11, 2019

        Javier Ramos appeals, pro se, from the order entered January 17, 2018,

in the Lehigh County Court of Common Pleas, dismissing without a hearing his

first petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 Ramos seeks relief from the judgment of sentence of an aggregate

term of 18 to 42 years’ imprisonment imposed on January 31, 2013, following

his jury conviction of burglary, criminal conspiracy,2 and related charges in

the above-captioned consolidated cases. On appeal, Ramos asserts, inter alia,

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   Retired Senior Judge assigned to the Superior Court.

1   See 42 Pa.C.S. §§ 9541-9546.

2   See 18 Pa.C.S. §§ 3502 and 903, respectively.
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the ineffectiveness of appointed counsel, who was permitted to withdraw in

the PCRA court after filing a Turner/Finley3 “no merit” letter. Because we

conclude counsel’s “no merit” letter was deficient such that Ramos was denied

the right to effective counsel regarding his first PCRA petition, we vacate the

order denying PCRA relief, and remand this case for the appointment of new

PCRA counsel.

        The facts underlying Ramos’ convictions are well known to the parties,

and we need not reiterate them herein.           In summary, Ramos and a co-

defendant, David Lafantano, committed a series of burglaries in Lehigh and

Northampton Counties in February and March of 2012. Ramos was originally

charged, at Docket No. 2292-2012, with a March 12, 2012, attempted break-

in at a home in Breiningsville, Pennsylvania. That arrest led to information

regarding other crimes, and Ramos was subsequently charged at Docket No.

2296-2012, with burglaries committed in Bethlehem and Upper Saucon

Township in February of 2012. The cases were consolidated for trial.        On

December 12, 2012, a jury found Ramos guilty of four offenses at Docket No.

2292-2012, including attempted burglary,4 and seven offenses at Docket No.

2296-2012, including burglary, receiving stolen property (two counts), and


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3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

4   See 18 Pa.C.S. §§ 901/3502(a).




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criminal conspiracy.5       On January 31, 2013, the trial court imposed an

aggregate sentence of 18 to 42 years’ imprisonment. Ramos filed a post-

sentence motion, which the court denied, followed by a timely appeal. On

November 25, 2014, a panel of this Court affirmed the judgment of sentence

on direct appeal, and the Pennsylvania Supreme Court denied his petition for

allowance of appeal. See Commonwealth v. Ramos, 113 A.3d 357 (Pa.

Super. 2014) (unpublished memorandum), appeal denied, 117 A.3d 296 (Pa.

2015).

        While his direct appeal was pending, Ramos filed a pro se PCRA petition

in January of 2014, followed by an amended petition in August of 2014. The

trial court entered an order staying the proceedings until the completion of his

direct appeal.    In March of 2016, Ramos filed a pro se petition for writ of

mandamus. Thereafter, on April 12, 2016, the trial court entered an order

lifting the stay on Ramos’ PCRA proceedings, and appointing counsel to

represent him. On April 19, 2016, the court appointed new PCRA counsel due

to a conflict with prior counsel, and directed counsel to file either an amended

petition or a Turner/Finley “no merit” letter within 60 days. Nevertheless,

on June 3, 2016, Ramos filed another pro se amended petition. On June 8,

2016, the PCRA court dismissed Ramos’ pro se filing, since he was represented

by counsel, and forwarded a copy to appointed counsel. See Order, 6/8/2016.

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5   See 18 Pa.C.S. §§ 3502(a), 3925(a), and 903(a), respectively.




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       Subsequently, on June 15, 2016, counsel filed a motion to withdraw and

accompanying Turner/Finley “no merit” letter. Ramos then filed a request

for a Grazier6 colloquy, in which he stated he had received counsel’s motion

to withdraw, and counsel had “informed [him] to proceed pro se on his instant

PCRA Petition.” [Ramos’] Request for Grazier Colloquy, 7/6/2016, at ¶ 3. On

August 2, 2016, the PCRA court conducted a hearing on counsel’s petition to

withdraw and Ramos’ request to proceed pro se. That same day, the court

granted counsel permission to withdraw, and entered an order notifying

Ramos of its intent to dismiss his petition without first conducting an

evidentiary hearing pursuant to Pa.R.Crim.P. 907.       After requesting and

receiving the transcripts from his trial, Ramos filed a response to the court’s

Rule 907 notice on January 10, 2018. Subsequently, on January 17, 2018,

the PCRA court entered an order denying Ramos relief. This timely appeal

followed.7, 8
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6   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

7 On January 30, 2018, the PCRA court directed Ramos to file a concise
statement of errors complained of on appeal. When he had not done so by
March 8, 2018, the PCRA court filed an opinion, concluding all of Ramos’ issues
were waived. See PCRA Court Opinion, 3/8/2018. However, on April 3, 2018,
Ramos filed an application in this Court seeking leave to file a concise
statement nunc pro tunc, and attached thereto a Rule 1925(b) statement. On
April 23, 2018, this Court remanded the record to the PCRA court to prepare
a supplemental opinion in response to Ramos’ concise statement. The PCRA
court filed a supplemental opinion on May 4, 2018.

8We note Ramos was charged and tried under two docket numbers, and his
PCRA petition and notice of appeal therefrom lists both dockets. In June of



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       Our review of an order denying PCRA relief is “limited to a determination

of whether the record supports the PCRA court’s factual findings and whether

its legal conclusions are free from error.” Commonwealth v. Williams, 141

A.3d 440, 452 (Pa. 2016).

       On appeal, Ramos argues PCRA counsel was ineffective for submitting a

defective “no merit” letter, and the PCRA court abused its discretion when it

permitted appointed counsel to withdraw. See Ramos’ Brief at 23-25, 28-29.

We agree.9

       When counsel seeks to withdraw from PCRA representation, pursuant to

Turner/Finley and their progeny, counsel must first conduct an independent

review of the record. Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa.

2009).

       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,
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2018, the Pennsylvania Supreme Court in Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018), held that “when a single order resolves issues arising on
more than one lower court docket, separate notices of appeal must be
filed. The failure to do so will result in quashal of the appeal.” Id. at 977
(footnote omitted). Nevertheless, the Walker Court specifically announced
its decision would be applied prospectively only. See Walker, supra, 185
A.3d at 97. Therefore, because the notice of appeal in the present case was
filed before Walker, we need not quash this appeal.

9 Due to our disposition of this issue, we need not address Ramos’ claims that
the PCRA court abused its discretion in denying him an evidentiary hearing
and directing him to proceed pro se without a proper Grazier colloquy. See
Ramos’ Brief at 11-16, 25-28.



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       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 Pitts, supra at 876 n. 1.

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

(emphasis supplied), appeal denied, 64 A.3d 631 (Pa. 2013).

       Here, Ramos argues PCRA counsel’s “no merit” letter was deficient:10

       Appointed [c]ounsel’s defective ‘no-merit’ letter fails to
       demonstrate a diligent review of the case or communication with
       the client, it fails to list the issues [Ramos] sought review and the
       ‘no-merit’ letter fails to explain how and why [Ramos’] issues,
       when proven accurate, would otherwise not grant PCRA relief.

Ramos’ Brief at 24. Our review of counsel’s three-paragraph “no merit” letter

compels us to agree. Although counsel stated he reviewed all of Ramos’ pro

se petitions, and corresponded with Ramos, he insisted that Ramos’ claims of

trial counsel’s ineffectiveness were only general allegations, lacking “reference

to evidence of record or specific facts demonstrating prejudice[.]”            Finley

Letter, 6/15/2016. Counsel further averred, in summary fashion:

       In correspondence I requested [Ramos] to supply me with specific
       facts supporting ineffectiveness claims. He wrote back stating
       that he wanted me to look into the allegations. I have found no
       facts to support any PCRA claims after reviewing the Notes of
       Testimony, [Ramos’] pro se PCRA Petitions, and the Court and
       Defense files, including the Discovery materials.

Id.



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10 We note Ramos properly preserved his challenge to PCRA counsel’s
ineffectiveness by raising the claim in his response to the PCRA court’s Rule
907 notice. See Commonwealth. v. Ford, 44 A.3d 1190, 1198 (Pa. Super.
2012), citing Pitts, supra.

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       Counsel’s assertion that Ramos’ claims consisted only of general

allegations is belied by our review of Ramos’ most recent petition, filed on

June 3, 2016. In that petition, Ramos alleged, inter alia, the trial court lacked

jurisdiction due to the location of the crimes, and trial counsel was ineffective

for failing to (a) request severance of the charges, (b) seek a change of venue,

(c) call identified witnesses to testify, and (d) engage an expert witness to

scientifically examine wiretap recordings.       See Amended Post-Conviction

Collateral Petition, 6/3/2016, at 11, 13, 16, 21. Moreover, in a prior petition,

Ramos asserted the illegality of his sentence pursuant to Alleyne v. United

States, 570 U.S. 99 (2013). Counsel failed to address any of these specific

claims in his “no merit” letter. Therefore, we agree with Ramos that PCRA

counsel’s “no merit” letter failed to satisfy the requirements of Turner/Finley

and their progeny, and, accordingly, are constrained to vacate the order

denying PCRA relief and remand for the appointment of new counsel. 11 We

recognize the PCRA court addressed several of the claims raised in Ramos’

June 3, 2016, amended petition in its May 2, 2018, Opinion. See PCRA Court

Opinion, 5/4/2018, at 7-9. Nevertheless, Ramos is entitled to the “effective

assistance of counsel for his [] first PCRA petition.”     Commonwealth v.

Roane, 142 A.3d 79, 100 (Pa. Super. 2016) (citation omitted).




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11The Commonwealth stated in its brief it was “not opposed to a remand for
the appointment of new counsel[.]” See Commonwealth’s Brief at 15.


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     Upon remand, we direct the PCRA court to appoint counsel to Ramos

within 20 days. After the appointment, counsel shall have 60 days to file an

amended PCRA petition, or a petition to withdraw accompanied by a

competent Turner/Finley “no merit” letter.

     Order vacated.   Case remanded for proceedings consistent with this

Memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/19




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