J-S17028-16

                                   2016 PA Super 77

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DANIEL SCOTT MUZZY,

                            Appellant                 No. 1215 WDA 2015


                   Appeal from the PCRA Order July 21, 2015
                In the Court of Common Pleas of Warren County
              Criminal Division at No(s): CP-62-CR-0000043-2013



BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

OPINION BY SHOGAN, J.:                                FILED MARCH 31, 2016

       Appellant, Daniel Scott Muzzy, appeals from the order denying his first

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. In addition, counsel has filed a petition seeking

to withdraw. As we find that counsel has not fully and accurately complied

with the requirements of Turner/Finley,1 we deny appellate counsel’s

request to withdraw at this time.

       Appellant was charged with rape of a child, statutory sexual assault,

involuntary deviate sexual intercourse with a child (“IDSI”), aggravated

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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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indecent assault, indecent assault, and corruption of a minor by information

filed February 13, 2013.        The affidavit of probable cause, filed by Warren

County Police Officer Jeffrey P. Osborne, indicates that the nine-year-old

female victim’s father contacted police on December 3, 2012, and reported

that his daughter revealed that Appellant had sexually assaulted her. The

affidavit states that Appellant

       had gone into her room[2] on 4–5 occasions during the late night
       hours. [Appellant] during the last time he came into her room
       had pulled her panties and pajamas down, taking them both
       down by pulling one of the legs of her pajamas off. [Appellant]
       was licking and kissing her “down there” and that [Appellant]
       had hurt her vaginal area buy [sic] penetrating her when he was
       down there.

Affidavit of Probable Cause, 1/31/13, at 1.

       On April 12, 2013, Appellant pled guilty pursuant to a negotiated plea

to IDSI at count three “with the Commonwealth agreeing not to seek the

mandatory      minimum      sentence     of    ten   years;   and   further,   that   the

Commonwealth will stand mute at the time of sentencing.”                   N.T. (Guilty

Plea), 4/12/13, at 3. In addition, the Commonwealth sought nolle prosequi,

which the trial court entered, of all remaining charges.                   The Sexual

Offenders Assessment Board (“SOAB”) determined on July 30, 2013, that

Appellant met the criteria to be designated a Sexually Violent Predator

(“SVP”). Following an SVP hearing, the trial court designated Appellant an

____________________________________________


2
    The record does not reveal Appellant’s relationship to the victim’s family.



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SVP on October 8, 2013.            Also on that date, the trial court sentenced

Appellant to a term of incarceration of ten to twenty years for IDSI, to run

consecutively to the unrelated sentence Appellant was currently serving at

that time. On October 17, 2013, Appellant filed a motion to reconsider his

sentence, which the trial court denied on November 19, 2013. Appellant did

not file an appeal.

       On November 12, 2014, Appellant filed a timely pro se PCRA petition.

The PCRA court appointed counsel, who filed an amended petition on April

29, 2015.     The PCRA court conducted an evidentiary hearing on July 16,

2015, and thereafter denied Appellant’s PCRA petition on July 21, 2015.

Appellant filed a timely notice of appeal. Both Appellant and the PCRA court

complied with Pa.R.A.P. 1925.

       As noted, Appellant’s counsel filed an application to withdraw as

counsel and thereafter filed a document purporting to be a Turner/Finley

“no merit letter.”3     Prior to addressing the merits of the appeal, we must

review    counsel’s     compliance      with   the   procedural   requirements   for

withdrawing as counsel.        Commonwealth v. Daniels, 947 A.2d 795, 798

(Pa. Super. 2008). We have explained:
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3
  While the Turner/Finley filing is more akin to a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), because an Anders brief provides
greater protection to a defendant, we may accept it in lieu of a
Turner/Finley “no-merit” letter. Commonwealth v. Reed, 107 A.3d 137,
139 n.5 (Pa. Super. 2014). Based upon our disposition in this case, we
admonish counsel to utilize the proper procedural construct in the future.



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      Counsel petitioning to withdraw from PCRA representation must
      proceed . . . under [Commonwealth v.] Turner, [544 A.2d 927
      (1988)], and [Commonwealth v.] Finley, [550 A.2d 213
      (1988)] and . . . must review the case zealously. Turner/Finley
      counsel must then submit a “no-merit” letter to the trial court, or
      brief on appeal to this Court, detailing the nature and extent of
      counsel’s diligent review of the case, listing the issues which
      petitioner wants to have reviewed, explaining why and how
      those issues lack merit, and requesting permission to withdraw.

            Counsel must also send to the petitioner: (1) a copy of the
      “no merit” letter/brief; (2) a copy of counsel’s petition to
      withdraw; and (3) a statement advising petitioner of the right to
      proceed pro se or by new counsel.

                                    * * *

      Where counsel submits a petition and no-merit letter that . . .
      satisfy the technical demands of Turner/Finley, the court—trial
      court or this Court—must then conduct its own review of the
      merits of the case. If the court agrees with counsel that the
      claims are without merit, the court will permit counsel to
      withdraw and deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (internal

citations omitted) (quoting Commonwealth v. Wrecks, 931 A.2d 717, 721

(Pa. Super. 2007)).

      Here, counsel described the extent of her review, evaluated the issues,

and concluded that the appeal is frivolous. In addition, counsel has included

a copy of a letter sent to Appellant, a copy of her petition to withdraw, and a

copy of the “no-merit” Turner/Finley brief.      However, counsel’s letter to

Appellant contains an inartfully worded proviso concerning his rights in lieu

of representation, which has resulted in the provision of inaccurate

information to Appellant.


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       Appellate counsel’s letter to Appellant states, “Should the Superior

Court of Pennsylvania grant my request to withdraw as counsel, you

have the right to proceed with your appeal with other new counsel

or pro se (which means on your own without counsel).” Application to

Withdraw as Counsel, 11/23/15, Exhibit A (emphasis in original).                   This

statement improperly conveys to Appellant the conclusion that he cannot

proceed pro se or by privately retained counsel unless, and until, this Court

rules on counsel’s withdrawal request. That is incorrect.

       Daniels clarified that

       PCRA counsel must contemporaneously forward to the petitioner
       a copy of the application to withdraw, which must include (i) a
       copy of both the “no-merit” letter, and (ii) a statement advising
       the PCRA petitioner that, in the event the trial court grants the
       application of counsel to withdraw, the petitioner has the right to
       proceed pro se, or with the assistance of privately retained
       counsel.

Daniels, 947 A.2d at 798 (emphasis added) (quoting Commonwealth v.

Friend,    896    A.2d    607    (Pa.    Super.   2006)   (abrogated   in   part    by

Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009)).4

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4
    Friend imposed counsel’s additional notice requirements to his client
similar to the procedure required to withdraw on direct appeal. While former
Chief Justice Castille noted in Pitts that this Court is not authorized to craft
procedural rules, the Pitts Court did not overturn that aspect of Friend.
Pitts, 981 A.2d at 881 (Castile, C.J., concurring). This Court thereafter
clarified that Friend’s additional procedural notice requirements remained
applicable during collateral review. Commonwealth v. Widgins, 29 A.3d
816 (Pa. Super. 2011); see also Commonwealth v. Freeland, 106 A.3d
768, 774–775 (Pa. Super. 2014) (procedural requirements of Friend remain
(Footnote Continued Next Page)


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        In the case sub judice, counsel utilized language that is peculiar to the

procedure at the common pleas court level when counsel seeks to withdraw,

without adjusting it to the posture of the case at the appellate level.             By

advising Appellant that he may proceed either pro se or with private counsel

only if, and after, we grant counsel’s petition to withdraw, Appellant will lose

the very right that counsel is obligated to inform her client that he retains.

        Thus, we clarify, in an appeal from the denial of a PCRA petition, if

counsel files a petition to withdraw as appellate counsel in this Court, the

letter to the client, inter alia, shall inform the PCRA petitioner that upon the

filing of counsel’s petition to withdraw, the petitioner-appellant has the

immediate right to proceed in the appeal pro se or through privately-

retained counsel. This is not a new requirement; it is simply clarification of

long-standing procedure.

        Counsel’s letter to Appellant renders her attempt to withdraw as

counsel defective under relevant case law prescribing the proper procedure

for withdrawal in a collateral appeal.           As a result of counsel’s misstatement,

we conclude that the petition to withdraw is deficient, and we deny it at this

time.



                       _______________________
(Footnote Continued)

applicable during collateral review); Commonwealth v. Rykard, 55 A.3d
1177 (Pa. Super. 2012) (same).




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J-S17028-16


      Counsel is hereby instructed either to file an advocate’s brief or to

refile her “no-merit” letter under Turner/Finley. If she chooses the latter,

her letter to Appellant shall provide, inter alia, accurate notice of Appellant’s

immediate right to proceed pro se or with private counsel.             Counsel’s

advocate brief or revised petition to withdraw shall be filed within thirty days

of the date of this decision. If counsel files a revised petition to withdraw

and Turner/Finley brief, Appellant shall have thirty days from receipt of the

revised petition to file a pro se brief or a brief by newly retained private

counsel, if he so chooses. The Commonwealth will then have thirty days to

file a responsive brief.

      Petition to withdraw as counsel denied. Panel Jurisdiction retained.




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