J-S48010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    RASHAUN D. GARNER                            :
                                                 :
                       Appellant                 :   No. 1056 MDA 2016

                   Appeal from the PCRA Order May 20, 2016
             In the Court of Common Pleas of Susquehanna County
              Criminal Division at No(s): CP-58-CR-0000418-2006


BEFORE:      OTT, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                                 FILED DECEMBER 19, 2017

        Rashaun D. Garner appeals from the order entered May 20, 2016, in the

Susquehanna County Court of Common Pleas denying his petition for collateral

relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1 Garner seeks

relief from the judgment of sentence of 20 to 40 years’ imprisonment, imposed

on June 25, 2008, following his negotiated guilty plea to the crime of third

degree murder.2 Concomitant with this appeal, counsel has filed a petition to

withdraw and an Anders3 brief.                 On appeal, Garner asserts a layered
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*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.

2   See 18 Pa.C.S. §§ 2501(a) and 2502(c).

3 Anders v. California, 386 U.S. 738 (1967). As will be discussed infra,
counsel should have filed a “no merit” letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc), rather than an Anders brief.
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ineffectiveness claim based upon trial counsel’s failure to file a post-sentence

motion to withdraw his guilty plea, and a challenge to the trial court’s

jurisdiction. For the reasons below, we vacate the order denying PCRA relief,

deny counsel’s petition to withdraw, and remand for the filing of an amended

PCRA petition.

      The facts and tortured procedural history underlying this appeal are well

known to the parties and we need not reiterate them in detail herein.          To

summarize, Garner was a juvenile on November 24, 2006, when he shot and

killed Stephen Smith, Jr.     He was charged, as an adult, with homicide,

aggravated assault (two counts), and terroristic threats (six counts).        His

pretrial motion to decertify the case to juvenile court was denied, and he

subsequently entered a negotiated guilty plea to one count of third degree

murder. As noted above, he was sentenced on June 25, 2008, in accordance

with the plea agreement, to a term of 20 to 40 years’ imprisonment. See

Commonwealth v. Garner, 87 A.3d 889 (Pa. Super. 2013) (unpublished

memorandum at 2-3).

      Garner did not file a direct appeal, but rather filed a timely PCRA petition

in June of 2009. The PCRA court denied the petition, and Garner filed an

appeal to this Court, in which appointed counsel petitioned to withdraw. After

we initially remanded for a procedural issue, this Court rejected Garner’s claim

that his guilty plea was entered unknowingly and involuntarily.          See id.

(unpublished memorandum at 6-9). However, our independent review of the

record revealed a potentially meritorious issue, namely, that trial counsel was

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ineffective for failing to file a direct appeal when Garner requested that counsel

do so. Consequently, this Court denied PCRA counsel’s petition to withdraw

and remanded for the filing of a counseled, amended petition.            See id.

(unpublished memorandum at 9-10).

      After remand, the trial court reinstated Garner’s direct appeal rights.

On direct appeal to this Court, appellate counsel once again petitioned to

withdraw and filed an Anders brief addressing one issue: “Did the lower court

err by accepting the guilty plea entered by appellant as voluntarily and

knowingly given?” Commonwealth v. Garner, 116 A.3d 679 (Pa. Super.

2014) (unpublished memorandum at 4) (citation omitted). Upon review, a

panel of this Court found Garner’s claim waived because he did not challenge

the voluntariness of his guilty plea in the trial court by either objecting at the

colloquy or filing a post-sentence motion to withdraw his plea.          See id.

(unpublished memorandum at 5). Furthermore, the panel mentioned Garner

did not aver that he asked counsel to file a post-sentence motion, and noted

that he could challenge counsel’s ineffectiveness in a PCRA proceeding. See

id. Accordingly, the panel affirmed the judgment of sentence, and permitted

counsel to withdraw.

      On December 10, 2015, Garner filed the instant PCRA petition, pro se,

and raised the following two claims: (1) trial counsel was ineffective for failing

to file “a requested post-sentence motion to withdraw his plea of guilty where

meritorious bases existed to do so,” and (2) initial PCRA counsel was

ineffective for failing to advance this claim. See Petition for Post-Conviction

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Collateral Relief, 12/10/2015, at ¶¶ 22-23. On February 19, 2016, the PCRA

court issued notice of its intent to dismiss the petition without first conducting

an evidentiary hearing pursuant to Pa.R.Crim.P. 907. The court subsequently

dismissed the petition by order entered April 25, 2016. Although Garner had

requested the appointment of counsel in his pro se petition,4 counsel was not

appointed before the court dismissed the petition. This appeal followed. 5

        After filing his notice of appeal, Garner filed several additional pro se

motions in the trial court, including: (1) a motion to dismiss counsel, although

no attorney was attached; (2) a motion to proceed pro se; and (3) a motion

for reconsideration of the order denying relief. The PCRA court did not address

any of these motions before the appeal was transferred to this Court.

Thereafter, on October 11, 2016, this Court entered a per curiam order,
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4   See Petition for Post-Conviction Collateral Relief, 12/10/2015, at ¶¶ 29-30.

5Although the order denying PCRA relief was entered on May 20, 2016, it was
not docketed until May 23, 2016. See Docket, 5/23/2016. Therefore, Garner
had until June 22, 2016, to file a timely appeal. However, Garner’s notice of
appeal was not docketed until June 23, 2016, seemingly one day late.

      Nevetheless, because Garner was incarcerated at the time he filed his
pro se notice of appeal, he may avail himself of the “prisoner mailbox rule’”
which provides that a pro se prisoner’s document is deemed filed on the date
he delivers it to prison authorities for mailing, so long as he supplies sufficient
proof of the date of mailing. See Commonwealth v. Jones, 700 A.2d 423
(Pa. 1997); Commonwealth v. Perez, 799 A.2d 848 (Pa. Super. 2002).
Here, Garner dated the certificate of service, corresponding to the notice of
appeal, June 10, 2016, which was within the requisite 30-day period.
Accordingly, we conclude Garner provided sufficient proof that the notice of
appeal was timely filed.




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directing the PCRA court to conduct a Grazier6 hearing, and determine

whether Garner’s purported waiver of counsel was knowing and voluntary.

See Order, 10/11/2016. The PCRA court complied with our directive, and,

following a Grazier hearing, appointed present counsel to represent Garner.

As noted supra, counsel has filed a petition to withdraw and Anders brief.

       Prior to addressing the merits of this appeal, we must first consider

whether counsel has fulfilled the procedural requirements for withdrawal.

“Where counsel seeks to withdraw on appeal from the denial of PCRA relief, a

Turner/Finley ‘no-merit letter’ is the appropriate filing.” Commonwealth

v. Reed, 107 A.3d 137, 139 n.5 (Pa. Super. 2014).                   Pursuant to

Turner/Finley and their progeny:

       Counsel petitioning to withdraw from PCRA representation 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.
                                      ***

       [W]here 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.
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6   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).


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

omitted).

       Here,    counsel     has   complied     with    the   procedural   aspects   of

Turner/Finley. Although she improperly filed an Anders brief, as opposed

to a “no merit” letter, this Court may accept such a filing “‘[b]ecause an

Anders brief provides greater protection to a defendant.’”7 Reed, supra,

107 A.3d at 139 n.5 (quotation omitted).              Furthermore, counsel provided

Garner with a copy of the brief and the petition to withdraw, and Garner was

advised of his right to proceed pro se or with private counsel.8 See Motion to

Withdraw, 8/18/2015, Exhibit A.            Garner has not responded to counsel’s

petition. Therefore, we proceed to a consideration of whether the PCRA court

erred in dismissing the petition. See Doty, supra.

       However, our initial review of the record reveals a procedural error,

which, once again, compels us to remand this case for further proceedings.



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7 Nevertheless, the Anders brief filed by counsel reads more like a “no merit”
letter. See Anders Brief at 20-30.

8 We note counsel’s initial filing did not include a copy of the letter she sent to
Garner. Therefore, by order dated May 4, 2017, we directed counsel to notify
Garner of his rights and forward a copy of her notification to this Court. See
Order, 5/4/2017. Although counsel complied, upon review, this Court found
counsel’s letter to Garner did not properly inform him of his right to proceed
pro se or with retained counsel. Accordingly, on May 17, 2017, this Court
entered an order permitting Garner to file a response to counsel’s petition,
either pro se or through privately retained counsel, within 30 days. Garner
did not respond.


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Specifically, Garner was denied the assistance of counsel in presenting his first

PCRA petition.

       It is axiomatic that an indigent PCRA petitioner has a rule-based right

“to representation by counsel for a first petition filed under the PCRA.”

Commonwealth v. Quail, 729 A.2d 571, 573 (Pa. Super. 1999). Indeed,

Pennsylvania Rule of Criminal Procedure 904 provides, in pertinent part:

       [W]hen an unrepresented defendant satisfies the judge that the
       defendant is unable to afford or otherwise procure counsel, the
       judge shall appoint counsel to represent the defendant on the
       defendant’s first petition for post-conviction collateral relief.

Pa. R. Crim. P. 904(C). Here, Garner asserted his indigency in his pro se PCRA

petition, and specifically requested counsel.9 See Petition for Post-Conviction

Collateral Relief, 12/10/2015, at ¶¶ 29-30. Nevertheless, the PCRA court did

not address Garner’s request for counsel, but rather, dismissed the petition

without conducting an evidentiary hearing.10 It was not until after Garner

filed a notice of appeal, and the PCRA court, upon directive from this Court,
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9 It merits mention Garner was granted in forma pauperis status and
appointed counsel during his prior PCRA proceeding and nunc pro tunc direct
appeal.

10 Although this petition was technically Garner’s second request for post-
conviction relief, his first petition resulted in the reinstatement of his direct
appeal rights. “When a petitioner is granted a direct appeal nunc pro tunc in
his first PCRA petition, a subsequent PCRA petition is considered a first PCRA
petition for timeliness purposes.” Commonwealth v. Karanicolas, 836 A.2d
940, 944 (Pa. Super. 2003). Accordingly, pursuant to Rule 904, Garner was
entitled to the appointment of counsel prior to the court’s dismissal of this
petition.



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conducted a Grazier hearing, that present counsel was appointed. At that

time, however, the PCRA court no longer had jurisdiction to consider an

amended petition since the appeal was pending in this Court.11 See Pa.R.A.P.

1701(a).

       Accordingly, because Garner was not afforded his rule-based right to

counsel to assist him in litigating his first PCRA petition, we are compelled to

vacate the order denying PCRA relief, deny counsel’s petition to withdraw, and

remand for further proceedings, including the filing of a counseled, amended

PCRA petition.

       Order vacated, and case remanded for further proceedings. Petition to

withdraw denied. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2017




____________________________________________


11We note, too, that the order of this Court, remanding the case for a Grazier
hearing, did not relinquish jurisdiction, but rather, only stayed the briefing
schedule. The Court directed, “Upon entry of the trial court’s determination
[concerning Garner’s request to proceed pro se], the Prothonotary shall
establish a briefing schedule.” Order, 10/13/2016.


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