J-S67012-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
CHRISTOPHER R. BAKER,                     :
                                          :
                   Appellant              : No. 242 WDA 2014

                Appeal from the PCRA Order January 23, 2014,
                    Court of Common Pleas, Potter County,
               Criminal Division at No. CP-53-MD-0000119-1992

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED NOVEMBER 26, 2014

       Christopher R. Baker (“Baker”) appeals from the January 23, 2014

order entered in the Potter County Court of Common Pleas. Baker’s counsel

has filed a brief alleging that Baker’s appeal is frivolous. For the following

reasons, we remand the case with instructions to counsel.

       The relevant facts and procedural history are as follows. At the age of

16, Baker was arrested and charged with the May 6, 1992 killing of 72-year-

old Dorothy Wilkinson. Baker was also charged with stealing Ms. Wilkinson’s

car after the murder. On March 11, 1993, following a non-jury trial, Baker

was convicted of first-degree murder and theft.1 The trial court sentenced

Baker on June 15, 1993, to life imprisonment for the charge of murder and

11 to 48 months imprisonment for the theft charge, to run concurrently with



1
    18 Pa.C.S.A. §§ 2502(a), 3921(a).


*Former Justice specially assigned to the Superior Court.
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the life sentence.   On July 14, 1993, Baker filed a notice of appeal.   This

Court affirmed the judgment of sentence on August 29, 1994.

      Between December 16, 1996 and November 4, 2011, Baker filed three

pro se petitions for relief pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. § 9541, et seq. The trial court denied all three of

Baker’s requests for relief, which this Court affirmed.2

      On May 21, 2012, Baker filed his fourth pro se PCRA petition. On July

19, 2012, the PCRA court appointed Brent Petrosky (“Attorney Petrosky”) to

represent Baker.     On July 23, 2012, Baker filed a pro se amended PCRA

petition, wherein he asserted that the decision in Miller v. Alabama, 132

S.Ct. 2455 (U.S. 2012), which holds that “the Eighth Amendment forbids a

sentencing scheme that mandates life in prison without possibility of parole

for juvenile offenders,” created a new constitutional right that should be

applied retroactively to his case.   Id. at 2469. The PCRA court continued

the matter on October 16, 2012, pending resolution by our Supreme Court

of the issue of whether Miller applied retroactively to cases on collateral

review.

      In the interim, on February 4, 2013, Baker filed a pro se petition for

writ of habeas corpus in the PCRA court, requesting that his sentence be


2
   The PCRA court granted Baker’s November 19, 1998 petition in part to
allow Baker to file a petition for allowance of appeal to the Pennsylvania
Supreme Court nunc pro tunc. Our Supreme Court denied Baker’s petition
for allowance of appeal on May 26, 1999. See Commonwealth v. Baker,
739 A.2d 163 (Pa. 1999).


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vacated in light of the Miller decision.       Baker thereafter amended his

petition on February 6, 2013. On June 18, 2013, the PCRA court issued an

order stating that Baker’s PCRA petition and petition for writ of habeas

corpus would be held in abeyance until the Pennsylvania Supreme Court

issued its decision in Commonwealth v. Cunningham, filed at docket

number 38 EAP 2012. Baker then filed two pro se amended habeas petitions

on November 18, 2013 and December 27, 2013, respectively.

     Following the Pennsylvania Supreme Court’s decision in Cunningham,

81 A.3d 1 (Pa. 2013), cert. denied, 134 S.Ct. 2724 (U.S. 2014), the PCRA

court entered an order on January 3, 2013 pursuant to Pa.R.Crim.P. 907,

notifying Baker of its intention to dismiss his petitions without a hearing,

ultimately dismissing them on January 23, 2014.3 Baker filed a pro se notice

of appeal to this Court on February 3, 2014.

     On March 12, 2014, Baker filed a motion for appointment of counsel.

This Court entered an order on March 31, 2014, stating:

           As the trial court appointed [Attorney Petrosky] to
           represent [Baker] on July 19, 2012, and as there is
           no indication that [A]ttorney Petrosky was granted
           leave to withdraw, the prothonotary is directed to
           enter the appearance of [A]ttorney Petrosky in this
           Court. Should [A]ttorney Petrosky believe he is not
           representing [Baker], [A]ttorney Petrosky shall file a
           motion to withdraw in the lower court.



3
  The PCRA court properly treated the habeas petition as an amended PCRA
petition, as 42 Pa.C.S.A. § 9542 states that the PCRA is “the sole means for
obtaining collateral relief and encompasses […] habeas corpus[.]”


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Order, 3/31/14, at 1.

      On April 7, 2014, Baker attempted to file a pro se brief. Baker then

filed a “Motion to the Court” on April 21, 2014, requesting to proceed pro se

and to receive an extension of time to file his brief. On May 5, 2014, this

Court denied Baker’s “Motion to the Court,” noting that Attorney Petrosky

filed a brief on behalf of Baker on April 28, 2014. Order, 5/5/14.

      In the brief, Attorney Petrosky presents one issue for this Court’s

review:

            Did a lower court err in following the dictates of the
            Pennsylvania Supreme Court in denying [Baker]
            retroactive relief where an appellant has previously
            exhausted his direct appeal rights?

Appellant’s Brief at 4.

      Attorney Petrosky provides an explanation of Baker’s requested relief,

a brief background of the case, a brief summary of our Supreme Court’s

ruling in Cunningham, and concludes as follows:

            After a careful and thorough review of the orders,
            counsel determines that the appealed issue is
            frivolous. See Commonwealth v. Santiago, 978
            A.2d 349 (Pa. 2009) (holding that counsel must now
            state reasons for concluding that the appeal is
            frivolous and that counsel need not argue in support
            of a defendant’s claim, but only refer to potentially
            supporting portions of the record.[)]

            Based on the foregoing, Appellant’s counsel has
            asserted all arguments which could arguably support
            an appeal. Counsel has diligently investigated the
            possible grounds and finds the appeal frivolous.




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            Whether there is evidence contained within this
            record that supports Appellant’s contentions that the
            lower court abused its discretion by dismissing
            Appellant’s pleadings is left to the discretion of this
            Court.

Appellant’s Brief at 9-10.

      We begin by noting that Attorney Petrosky did not file a petition for

leave to withdraw as counsel and did not request to withdraw as counsel.

However, Attorney Petrosky cites to Santiago in his discussion of the

frivolity of Baker’s appeal, which sets forth the precise requirements a brief

seeking permission to withdraw must contain in order to establish that an

appeal is frivolous pursuant to Anders v. California, 386 U.S. 738 (1967).

As such, Attorney Petrosky appears to be attempting to file an Anders brief

seeking to withdraw as counsel. This Court has established, however, that

“[c]ounsel petitioning to withdraw from PCRA representation must proceed

not under Anders but under Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).”

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).

      “The Turner/Finley decisions provide the manner for post-conviction

counsel to withdraw from representation.       The holdings of those cases

mandate an independent review of the record by competent counsel before

a PCRA court or appellate court can authorize an attorney’s withdrawal.”

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




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procedure for petitioning to withdraw as counsel under Turner/Finley is as

follows:

              [PCRA] counsel must [] submit a ‘no-merit’ letter to
              the trial court, or brief on appeal to this Court, [1]
              detailing the nature and extent of counsel's diligent
              review of the case, [2] listing the issues which the
              petitioner wants to have reviewed, [3] explaining
              why and how those issues lack merit, and [4]
              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.

              If counsel fails to satisfy the foregoing technical
              prerequisites of Turner/Finley, the court will not
              reach the merits of the underlying claims but, rather,
              will merely deny counsel's request to withdraw.
              Upon doing so, the court will then take appropriate
              steps, such as directing counsel to file a proper
              Turner/Finley request or an advocate's brief.

Wrecks, 931 A.2d at 721 (internal citations omitted).

      After reviewing the record, we conclude that Attorney Petrosky failed

to satisfy the technical prerequisites of Turner/Finley. First, counsel has

failed to state the nature and extent of his review.       In the brief he filed,

Attorney Petrosky simply states “[a]fter a careful and thorough review of the

orders, counsel determines that the appealed issue is frivolous.” Appellant’s

Brief at 9.    He then states that “[c]ounsel has diligently investigated the

possible grounds and finds the appeal frivolous.”       Id. at 10.     At no time,

however, does Attorney Petrosky state the nature and extent of his review



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or what he considered in arriving at his conclusion that Baker’s appeal is

frivolous.

        In Commonwealth v. Liebensperger, 904 A.2d 40 (Pa. Super.

2006), this Court determined that counsel’s statement that he reviewed “the

pleadings, discovery information, record papers, and transcripts, as well as

the applicable case law” satisfied the requirement that counsel detail the

nature and extent of counsel's diligent review. Id. at 45. In view of our

decision in Liebensperger, we conclude that Attorney Petrosky failed to

sufficiently detail the nature and extent of counsel's diligent review of the

case.

        Attorney Petrosky also failed to list the issues that Baker desired this

Court to review. In his brief, Attorney Petrosky presented one issue for our

review. However, the record reflects that Baker filed a pro se statement of

errors complained on of appeal pursuant to Pa.R.A.P. 1925(b) on February

14, 2013, wherein he listed four issues, with several sub-issues, he wished

to have reviewed on appeal. Attorney Petrosky failed to list these issues and

failed to explain how these issues lack merit, which contravenes the

requirements of Turner/Finley.

        Furthermore,   Attorney   Petrosky   never   requested   permission   to

withdraw, nor is there evidence of record establishing that Attorney Petrosky

advised Baker that he believed his appeal was frivolous or of his right to

proceed pro se or by new counsel. See Wrecks, 931 A.2d at 721. To the



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contrary, the record establishes that Attorney Petrosky filed a brief following

Baker’s attempt to file a pro se appellant’s brief, resulting in the denial of

Baker’s request to proceed pro se.

       Based upon the aforementioned reasons, we conclude that Attorney

Petrosky’s attempt to withdraw as counsel is deficient.       Accordingly, we

must remand this case. Should Baker renew his request to proceed pro se

before the PCRA court, the court shall hold a Grazier4 hearing.5       If Baker

does not wish to proceed pro se or the PCRA court determines that his

waiver of his right to counsel is not knowing, voluntary, or intelligent,

Attorney Petrosky (or newly appointed counsel, if the PCRA court deems

necessary) must file either a proper advocate’s brief or a “no-merit” letter

that complies with the requirements of Turner/Finley.

       Case remanded with instructions. Panel jurisdiction retained.

4
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
5
  As this is Baker’s fourth PCRA petition, he is not entitled to counsel. See
Commonwealth v. Kubis, 808 A.2d 196, 200 (Pa. Super. 2002) (“the
Pennsylvania Rules of Criminal Procedure provide that the PCRA court shall
appoint an attorney to represent a petitioner during his first PCRA petition
when he demonstrates that he is ‘unable to afford or otherwise procure
counsel.’ […] [N]o such right exists for subsequent PCRA petitions[.]”)
(emphasis in original). Nevertheless, the trial court appointed Attorney
Petrosky to represent Baker in this appeal. See Order, 3/31/14, at 1.
However, once counsel is appointed and undertakes representation, the
Rules of Professional Conduct require that, contrary to the manner in which
Attorney Petrosky proceeded in this case, counsel must provide “competent,
thorough, and prepared representation.” See Rules of Professional Conduct
1.1. Furthermore, Rule 1.3 requires that the representation be diligent and
zealous. Rules of Professional Conduct 1.3. Consequently, in consideration
of the trial court’s decision to appoint counsel to represent Baker in this
matter, we invoke the Grazier requirement.


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