J-S12001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 CHAD EARL FRANTZ                          :
                                           :
                    Appellant              :   No. 703 MDA 2018

                Appeal from the PCRA Order March 27, 2018
   In the Court of Common Pleas of Lancaster County Criminal Division at
                     No(s): CP-36-CR-0002297-2015

BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                                FILED JULY 17, 2019

      Chad Earl Frantz appeals from the order that dismissed his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”). We vacate the order and

remand with instructions.

      The record reveals the following pertinent history.        Appellant was

accused of sexually abusing his stepdaughter. A jury convicted Appellant of

rape and related crimes, and he was sentenced to thirty and one-half to sixty-

one years of imprisonment.      On direct appeal, this Court reversed one of

Appellant’s convictions, but otherwise affirmed the judgment of sentence.

Commonwealth v. Frantz, 169 A.3d 1206 (Pa.Super. 2017) (reversing a

conviction for which a concurrent sentence had been imposed, affirming the

rest, and concluding that resentencing was unnecessary).

      Appellant filed a timely pro se PCRA petition in August 2017. Therein,

Appellant raised allegations of ineffective assistance of trial and direct appeal
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counsel, as well as a discovery violation by the prosecution. Appellant also

expounded upon each claim by attaching documents in a corresponding

appendix. For example, Appellant’s second claim was that trial counsel was

ineffective in not using police reports to impeach the Commonwealth’s

witnesses. PCRA Petition, 8/23/17, at 6. In support, Appellant attached (1)

a portion of the trial transcript reflecting the victim’s testimony that a

particular incident of abuse that occurred in a camper kept on the family’s

property concluded when her uncle knocked on the side of the camper and

spoke to Appellant while the victim pretended that she was cleaning; and (2)

a report denoting that the victim’s uncle, Michael Swetland, informed

Detective Eric Zimmerman that he did not remember ever seeing Appellant

and the victim alone in the camper. Id. at Appendix B.

      By order of September 6, 2017, the PCRA court appointed Christopher

P. Lyden, Esquire, to represent Appellant. Attorney Lyden promptly filed a

motion to withdraw and no-merit letter that utterly failed to comply with the

dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). In his

letter, Attorney Lyden, whose appointment was for the purpose of assisting

Appellant in properly pleading his claims, repeatedly opined that the claims in

the pro se petition lacked merit because they “lack[ed] specificity” where the

“PCRA requires the petition to plead and prove the case.”      Turner/Finley

Letter, 10/30/17, at unnumbered 2. Attorney Lyden further demonstrated an


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apparent failure to read the petition in its entirety, misstating the claims that

Appellant pled and ignoring the elucidations of those claims contained in the

appendices.

       For example, Attorney Lyden indicated that Appellant’s second claim

was that trial counsel should have pursued a diminished capacity defense. Id.

However, as we discussed above, Appellant’s second issue involved failure to

use the uncle’s police statement to impeach the victim. Appellant made no

claim related to diminished capacity in his petition.1 Attorney Lyden’s letter

represented that Appellant’s sixth issue was previously litigated since “[t]he

Superior Court concluded that the evidence was sufficient to sustain charges

a part of the verdict [sic].” Id. The claim actually raised in the petition is

that trial counsel was ineffective in not seeking dismissal of the charges based

upon the “delay of arrest of two years” after a 2009 investigation.          PCRA

Petition, 8/23/17, at 9.

       Notwithstanding       the    substantial   defects   in   Attorney   Lyden’s

Turner/Finley letter, the PCRA court granted counsel’s motion to withdraw

and issued notice of its intent to dismiss the petition without a hearing. See

Pa.R.Crim.P. 907 Notice, 2/20/18, at unnumbered 1.                The PCRA court


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1 The page of the PCRA petition stating Appellant’s second claim does contain
the words “diminished capacity.” However, it is clear that the phrase arises
only in connection with his citation to Commonwealth v. Legg, 711 A.2d
430, 432 (Pa. 1998), a case cited by Appellant to support the grant of PCRA
relief based upon counsel’s failure to investigate, which was the first claim
Appellant stated in his petition.

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expressly found that counsel complied with the dictates of Turner and Finley,

and represented that Attorney Lyden “informed [Appellant] in the No-Merit

Letter that [Appellant] may proceed on his own or request new counsel and

may appeal [the PCRA c]ourt’s decision to the Superior Court.”            Id. at

unnumbered 3.        However, the apparently complete two-and-one-half-page

version of Attorney Lyden’s letter in the certified record contains no such

statements.2 See Turner/Finley Letter, 10/30/17, at unnumbered 1-3.

       The PCRA court further indicated that it had conducted an independent

review of the entire record.             Yet the PCRA court offered the same

demonstrably incorrect reasons that Attorney Lyden posited for concluding

that the petition lacked merit. Id. at unnumbered 1, 3-5.      The PCRA court,

like Attorney Lyden, spotted a phantom diminished capacity issue, cited a lack

of specificity in pleading, and referenced previous litigation in connection with

an issue that had not been litigated previously. Id. at unnumbered 4-5.

       The docket indicates that the Rule 907 notice was served on the

Commonwealth and Attorney Lyden, but does not denote service to newly-

pro-se Appellant.3 Appellant sought, but was denied, an extension of time to

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2 It also includes no citations to the record or legal authority, other than a
single reference to the three-prong test for establishing ineffective assistance
of counsel.

3 According to the docket, each and every one of the PCRA court’s subsequent
filings was served upon Attorney Lyden, but not served upon Appellant, up to
and including the PCRA court’s June 3, 2019 opinion filed pursuant to our



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file his response to the Rule 907 notice. By order of March 28, 2018, the PCRA

court noted that Appellant had filed a timely response to the Rule 907 notice,

but nonetheless granted counsel leave to withdraw a second time, and

dismissed Appellant’s petition.        The docket does not reflect service of that

order upon Appellant.        The docket also does not indicate the filing of a

response to the Rule 907 notice, but does include an undated response to

Attorney Lyden’s Turner/Finley letter, entered on the docket on April 2,

2018.    In that response, Appellant noted counsel’s errors detailed above,4

among others, and submitted further support for his claims.            See, e.g.,

Response to Turner/Finley Letter, 4/2/18, at unnumbered 22 (providing the

first page of Commonwealth v. Snyder, 713 A.2d 596 (Pa. 1998)

(addressing due process right to have charges dismissed where a defendant

is prejudiced by improper pre-arrest delay)).

        On April 10, 2018, the PCRA court filed an order directing Appellant to

file a concise statement of errors complained of on appeal pursuant to



____________________________________________


earlier memorandum based in part upon the court’s failure to serve Appellant
properly.    These are detailed in our prior memorandum.                See
Commonwealth v. Frantz, 2019 WL 2233883 (Pa.Super. May 23, 2019)
(unpublished memorandum at 2, 4).

4 Regarding Attorney Lyden’s discussion of Appellant’s second claim, Appellant
stated that “Counsel is wrong simply because [Appellant] never claimed
diminished capacity in his petition.” Response to Turner/Finley Letter,
4/2/18, at unnumbered 11. Appellant further attached the relevant portion of
the petition to demonstrate that the claim in question involved impeachment
of witnesses. Id. at unnumbered 10.

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Pa.R.A.P. 1925(b). Before the statement was due, Appellant requested an

extension of time in which to file it, but the PCRA court denied the request.

Appellant filed a statement that was docketed on July 16, 2018. The PCRA

court filed an opinion advocating that this appeal be dismissed because, by

not filing a timely 1925(b) statement, Appellant failed to preserve any issues

for appeal. PCRA Court Statement in Lieu of Memorandum Opinion, 8/6/18,

at 3.

        Sundry procedural missteps involving multiple appeals ensued.5

Ultimately, because the PCRA court’s 1925(b) order was deficient and not

properly served, and because the PCRA court did not provide the requisite

justification for its denial of Appellant’s motion for an extension of time to file

his statement,6 we held that Rule 1925 waiver was inapplicable, and ordered

the PCRA court to file an opinion addressing the eighteen issues Appellant

raised in his July 16, 2018 statement. The PCRA court filed its opinion on June

3, 2019.

        In his 1925(b) statement, Appellant asserted that the PCRA court erred

in dismissing the claims that Attorney Lyden deemed unmeritorious, and


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5 These are detailed in our prior memorandum. See Commonwealth v.
Frantz, 2019 WL 2233883 (Pa.Super. May 23, 2019) (unpublished
memorandum at 2-3)

6 See Commonwealth v. Hopfer, 965 A.2d 270, 275 (Pa.Super. 2009) (“[A]
court may not deny an appellant’s timely motion for enlargement of time to
file a Rule 1925(b) statement without providing justification for its finding that
good cause has not been shown.”).

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complained that PCRA counsel failed to address all of the petition’s issues in

his Turner/Finley letter. 1925(b) Statement 7/16/18, at 1, 6. We consider

Appellant’s claims mindful of our standard of review: “We must determine

whether the PCRA court’s ruling is supported by the record and free of legal

error.” Commonwealth v. Johnson, 179 A.3d 1153, 1156 (Pa.Super. 2018)

(internal quotation marks omitted).

       The PCRA court opined that no relief is due because the issues were not

raised in Appellant’s pro se petition, or were based upon what it assumed

could have been part of trial counsel’s reasonable strategy, or were not

sufficiently explained, or were not supported by evidence.7       PCRA Court

Opinion, 6/3/19, at unnumbered 3-6.

       Our detailing of the record above demonstrates that the PCRA court’s

rulings are not supported by the record and are not free of legal error. To the




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7 For example, the PCRA court states that Appellant’s claim that the jury was
tainted when the victim and her mother talked about the case in the presence
of jurors during a lunch recess lacks merit because Appellant “has introduced
no evidence, aside from his own motion to have a hearing on this alleged
contact, to prove that the incident ever happened.” PCRA Court Opinion,
6/3/19, at unnumbered 6. However, Appellant in his pro se petition identified
two witnesses to testify in support of the claim. PCRA Petition, 8/23/17, at
Appendix G. We fail to see what more proof Appellant would have been able
to offer without the assistance of counsel and the opportunity to prove his
claim at a hearing.



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contrary, we are convinced that Appellant has been effectively deprived of his

right to the earnest review of his PCRA claims with the assistance of counsel.8

       Pennsylvania courts have recognized expressly that every post-
       conviction litigant is entitled to at least one meaningful
       opportunity to have issues reviewed, at least in the context of an
       ineffectiveness claim. This Court has admonished, accordingly,
       that the point in time at which a trial court may determine that a
       PCRA petitioner’s claims are frivolous or meritless is after the
       petitioner has been afforded a full and fair opportunity to present
       those claims. Our Supreme Court has recognized that such an
       opportunity is best assured where the petitioner is provided
       representation by competent counsel whose ability to frame the
       issues in a legally meaningful fashion insures the trial court that
       all relevant considerations will be brought to its attention.

                 ....

       Moreover, this rule has not been limited to the mere naming of an
       attorney to represent an accused, but also envisions that counsel
       so appointed shall have the opportunity and in fact discharge the
       responsibilities required by his representation.

                 ....

       In addressing the petitioner’s right to counsel under the precursor
       to the PCRA, we admonished that when appointed counsel fails to
       amend an inarticulately drafted pro se post conviction petition, or
       fails otherwise to participate meaningfully, this court will conclude
       that the proceedings were, for all practical purposes, uncounseled
       and in violation of the representation requirement. Both this Court
       and our Supreme Court have recognized that a post conviction
       petition is effectively uncounseled under a variety of
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8 We are convinced that Appellant’s complaints about the deficiencies in
Attorney Lyden’s Turner/Finley review were sufficiently raised in the PCRA
court and this Court to preserve the issue for our review, especially given that
Attorney Lyden did not properly inform Appellant of his rights and obligations
in the face of a petition to withdraw pursuant to Turner and Finley. Cf.
Commonwealth v. Pitts, 981 A.2d 875, 880 (Pa. 2009) (holding this Court
erred in reviewing the adequacy of counsel’s Turner/Finley letter when
neither party raised the issue).

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      circumstances whenever omissions of record demonstrate that
      counsel’s inaction deprived the petitioner the opportunity of
      legally trained counsel to advance his position in acceptable legal
      terms.

Commonwealth v. Karanicolas, 836 A.2d 940, 945-46 (Pa.Super. 2003)

(cleaned up) (emphasis in original).

      Accordingly, as this Court recently ordered in Commonwealth v.

Kelsey, 206 A.3d 1135 (Pa.Super. 2019),

      [b]ecause Appellant did not waive his right to representation by
      counsel and PCRA counsel neither represented Appellant on the
      merits of the PCRA petition nor filed a sufficient no-merit letter
      that addressed all of Appellant’s claims, the PCRA court’s dismissal
      of Appellant’s PCRA petition must be vacated and remand to the
      PCRA court for appointment of new PCRA counsel is required. On
      remand, Appellant’s new counsel shall be permitted to file an
      amended PCRA petition or, if counsel concludes in the exercise of
      his or her professional judgment that the issues raised in the PCRA
      proceeding are without merit, counsel may file an adequate no-
      merit letter that addresses all of the issues raised in Appellant’s
      PCRA petition and move to withdraw.

Id. at 1140 (citations omitted). We so order here.

      Order vacated.      Case remanded with instructions.          Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/17/2019




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