J-S55019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TEONIA TERRI KIMBRO                        :
                                               :
                       Appellant               :   No. 295 WDA 2019

            Appeal from the PCRA Order Entered January 25, 2019
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0002723-2015


BEFORE:      MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.:                         FILED JANUARY 03, 2020

        Teonia Terri Kimbro appeals from the order dismissing her petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as

meritless. Kimbro’s counsel has filed a Turner/Finley1 brief and a petition to

withdraw as counsel. We conclude that counsel incorrectly concluded that

Kimbro filed an untimely PCRA petition and that he did not properly inform

Kimbro of her rights following the filing of a petition to withdraw and

Turner/Finley brief. Further, because counsel on appeal incorrectly

concluded Kimbro’s PCRA petition was untimely, we conclude Kimbro was

effectively deprived of counsel, and remand for the appointment of new

appellate counsel.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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       In January 2017, Kimbro pled guilty to third-degree murder and

burglary. 18 Pa.C.S.A. §§ 2502(c), 3502(a)(1). The trial court imposed a

negotiated sentence of 30 to 60 years’ imprisonment. On September 21, 2017,

this Court affirmed. Kimbro did not file a petition for allowance of appeal with

the Supreme Court of Pennsylvania.

       On May 9, 2018, Kimbro filed a pro se PCRA petition, alleging trial

counsel was ineffective for failing to file a post-sentence motion to modify her

sentence and for failing to act on her pro se motion. The PCRA court appointed

William J. Hathaway, Esquire, as counsel. Counsel filed a Turner/Finley no-

merit letter and a petition to withdraw as counsel, claiming Kimbro’s petition

was untimely and, even if not untimely, there were no meritorious claims. The

PCRA court issued notice of its intent to dismiss the petition without a hearing

and, on January 25, 2019, it dismissed the petition, finding Kimbro failed to

raise any meritorious issues.2 The court did not rule on counsel’s petition to

withdraw. Kimbro filed a timely notice of appeal. As mentioned above, counsel

filed a Turner/Finley brief and petition to withdraw as counsel.

       When presented with a brief pursuant to Turner/Finley, we first

determine     whether     the   brief   meets    the   procedural   requirements   of

Turner/Finley. See Commonwealth v. Wrecks, 931 A.2d 717, 721

(Pa.Super. 2007). A Turner/Finley brief must: (1) detail the nature and

extent of counsel’s review of the case; (2) list each issue the petitioner wishes
____________________________________________


2Kimbro submitted pro se filings, including a motion to appoint replacement
counsel.

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to have reviewed; and (3) explain counsel’s reasoning for concluding that the

petitioner’s issues are meritless. Commonwealth v. Pitts, 981 A.2d 875,

876 n.1 (Pa. 2009). Counsel must also send a copy of the brief to the

petitioner, along with a copy of the petition to withdraw, and inform the

petitioner of the right to proceed pro se or to retain new counsel. Wrecks,

931 A.2d at 721. If the brief meets these requirements, we then conduct an

independent review of the petitioner’s issues. Commonwealth v. Muzzy,

141 A.3d 509, 511 (Pa.Super. 2016).

       Counsel has failed to comply with Turner/Finley. In his one and one-

half page brief, counsel summarily concludes the PCRA petition was untimely

and no PCRA time-bar exception applies.3 He states that Kimbro “failed to

recognize or address the patent untimeliness of the filing of the instant PCRA

petition in that she did not cite or invoke any statutory exception,” and that

counsel “failed to discern the legal basis to invoke any statutory exception on

behalf of [Kimbro].” Turner/Finley Br. at 1. Counsel states that he reviewed

the petition, case record, applicable statute, and case law, but provides no

details regarding the facts or procedural history of the case, or the case law,

that led him to conclude that Kimbro filed an untimely PCRA petition. Counsel

further states that the PCRA court agreed with his conclusion that the PCRA

petition was not timely. This is not accurate. The PCRA court dismissed the

____________________________________________


3 His Turner/Finley letter filed before the PCRA court concluded that, even
if timely, the petition raised no meritorious issues. His appellate
Turner/Finley brief contains no such alternate conclusion.

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petition because it failed to state any meritorious claims. It did not dismiss

the petition as untimely. The lack of detail, inaccurate recitation of the record,

and summary conclusion are not acceptable in any Turner/Finley brief. We

find them even more troubling in this case because we conclude that Kimbro’s

petition is a timely PCRA petition.

      A PCRA petition is timely where the petitioner filed it “within one year of

the date the judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment

is final “at the conclusion of direct review, including discretionary review in

the Supreme Court of the United States and the Supreme Court of

Pennsylvania, or at the expiration of time for seeking the review.” 42 Pa.C.S.A.

§ 9545(b)(3). Here, Kimbro’s judgment did not become final until October 21,

2017, thirty days after we affirmed the judgment of sentence. She filed her

petition in May 2018, well within one year of when her judgment became final.

      In addition to inaccurately concluding that the PCRA petition was

untimely, counsel also failed to establish he served a copy of the

Turner/Finley brief on Kimbro and failed to properly inform her of her rights

following the filing of a Turner/Finley brief and petition to withdraw. In the

brief, counsel claims he “served a copy of this Finley brief and application to

withdraw as counsel contemporaneous to the instant filing with the Court upon

[Kimbro] with a statement advising [Kimbro] that, in the event that the Court

grants the application of counsel to withdraw, she has the right to proceed pro

se or with the assistance of privately retained counsel.” Turner/Finley Br. at

2. There are two problems with this statement. First, counsel did not attach

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the alleged letter to the petition to withdraw and therefore this Court cannot

determine whether he did, in fact, send it. Second, he states that he informed

Kimbro she could proceed pro se or with privately-retained counsel if this

Court granted his application to withdraw. This is not an accurate statement

of Kimbro’s rights. Rather, once counsel filed an application to withdraw and

Turner/Finley brief, Kimbro had a right to proceed immediately either pro

se or with privately-retained counsel. She did not have to wait for this Court

to act on the application. Muzzy, 141 A.3d at 512 (“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” (emphasis omitted)).

         We conclude that counsel failed to comply with the dictates of

Turner/Finley. Further, because counsel’s petition to withdraw on appeal

was based solely on his mistaken conclusion that the PCRA petition was

untimely, we conclude that Kimbro was effectively deprived of her right to

counsel on appeal, and remand for the appointment of new counsel. See

Commonwealth v. Karanicolas, 836 A.2d 940, 947-48 (Pa.Super. 2003).

The PCRA court shall appoint new counsel within 30 days of the date of this

memorandum. New counsel shall file an advocate’s brief, or a Turner/Finley

brief and petition to withdraw, within 60 days of appointment by the PCRA

court.




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      Case remanded, with instructions. Petition to withdraw denied.

Jurisdiction retained.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2020




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