J-S42015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

NAFIS ANTUAN FAISON,

                            Appellant                No. 292 MDA 2017


                 Appeal from the PCRA Order January 25, 2017
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0000147-2014


BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                               FILED JULY 13, 2017

       Appellant, Nafis Antuan Faison, appeals pro se from the order entered

on January 25, 2017, dismissing his first petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.       We vacate and

remand.

       On February 23, 2015, a jury found Appellant guilty of eight counts of

possession of a controlled substance with the intent to deliver, four counts of

simple possession, and four counts of criminal use of a communication

facility.1 On April 22, 2015, the trial court sentenced Appellant to serve an



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1
    35 P.S. §§ 780-113(a)(30) and (16) and 18 Pa.C.S.A. § 7512(a),
respectively.
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aggregate term of 28 months to eight years in prison.2                  We affirmed

Appellant’s judgment of sentence on May 9, 2016 and Appellant did not file a

petition for allowance of appeal with the Pennsylvania Supreme Court.

Commonwealth v. Faison, 151 A.3d 1140 (Pa. Super. 2016) (unpublished

memorandum) at 1-10.

        On September 8, 2016, Appellant filed a timely, pro se PCRA petition.

The PCRA court then entered an order granting Appellant the right to

proceed in forma pauperis and appointing Gerald Lynch, Esquire (hereinafter

“Attorney Lynch”) as Appellant’s counsel during the PCRA proceedings.

Appellant’s Pro Se PCRA Petition, 9/8/16, at 1-9; PCRA Court Order,

9/15/16, at 1.

        On December 20, 2016, Attorney Lynch filed a filed a no-merit letter

and a request to withdraw as counsel, pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc).               However, and unrelated to Attorney

Lynch’s no-merit letter and request to withdraw, on December 30, 2016, the

PCRA court entered an order that:              authorized the withdrawal of Attorney

Lynch    and    appointed     Ryan     Gardner,     Esquire   (hereinafter   “Attorney
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2
  As this Court explained, “[b]y amended [sentencing] order dated June 25,
2015, the [sentencing] court stated that the underlying sentence would
remain the same, but [that the sentencing court] was correcting a
miscalculation in the computation of the RRRI eligibility.” Commonwealth
v. Faison, 151 A.3d 1140 (Pa. Super. 2016) (unpublished memorandum) at
2-3.



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Gardner”) to represent Appellant.        PCRA Court Order, 12/30/16, at 1.       As

the PCRA court specified in its order, the change in counsel was done

because Attorney Lynch was “no longer handling conflict cases” and, as

such, Attorney Gardner was “reassigned as conflict counsel to represent

[Appellant].” Id.

       Notwithstanding the change in counsel, on December 30, 2016, the

PCRA court acted upon prior counsel’s Turner/Finley letter and entered an

order notifying Appellant that it intended to dismiss Appellant’s PCRA

petition in 20 days, without holding a hearing. PCRA Court Order, 12/30/16,

at 1; see also Pa.R.Crim.P. 907(1).            Then, on January 25, 2017 – with

Attorney Gardner not having filed anything in the matter – the PCRA court

entered an order that:      1) dismissed Appellant’s PCRA petition and 2)

granted the “motion to withdraw as counsel filed by [Attorney] Lynch.”

PCRA Court Order, 1/25/17, at 1.         At this time, however, Attorney Lynch

was not Appellant’s counsel; rather, Attorney Gardner was Appellant’s

counsel of record.

       Appellant filed a timely, pro se notice of appeal on February 16, 2017

and Appellant later filed a pro se brief to this Court, notwithstanding the fact

that Attorney Gardner was never granted leave to withdraw as Appellant’s

counsel. We now vacate and remand for further proceedings.

       “[I]t is undisputed that first time PCRA petitioners have a rule-based

right to counsel.” Commonwealth v. Figueroa, 29 A.3d 1177, 1180 n.6

(Pa.   Super.   2011).    This   right    to    counsel   “exists   throughout   the

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post-conviction proceedings, including any appeal from [the] disposition of

the petition for post-conviction relief.” Commonwealth v. Quail, 729 A.2d

571, 573 (Pa. Super. 1999) (internal citations and quotations omitted); see

also Pa.R.Crim.P. 904(C). Moreover, as our Supreme Court has explained,

“[t]he denial of PCRA relief cannot stand unless the petitioner was afforded

the assistance of counsel.”   Commonwealth v. Albrecht, 720 A.2d 693,

699 (Pa. 1998).    Thus, we have held that “where an indigent, first-time

PCRA petitioner was denied his right to counsel – or failed to properly waive

that right – this Court is required to raise this error sua sponte and remand

for the PCRA court to correct that mistake.” Commonwealth v. Stossel,

17 A.3d 1286, 1290 (Pa. Super. 2011).

     In this case, the PCRA considered a Turner/Finley “no-merit” letter

filed by Attorney Lynch after Attorney Lynch obtained leave to withdraw and

after the PCRA court appointed Attorney Gardner to be Appellant’s attorney.

This constitutes clear error, as the Turner/Finley procedures have no

meaning or purpose outside of a pending petition to withdraw as counsel.

Here, when the PCRA court considered Attorney Lynch’s Turner/Finley “no

merit” letter, there was no longer a pending petition to withdraw before the

PCRA court. As this Court has explained:

        Counsel petitioning to withdraw from PCRA representation
        must proceed . . . under [Turner/Finley.               Under]
        Turner/Finley[,] counsel 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


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           case, listing the issues which the petitioner wants to have
           reviewed, explaining why and how those issues lack merit,
           and requesting permission to withdraw.

                                       ...

           [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.

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

citations omitted).

      Further, we have held that “the Turner/Finley ‘no-merit letter’ is []

intended to serve the same basic purpose as the [Anders v. California,

386 U.S. 738 (1967)] brief . . . i.e. to document the nature and extent of

counsel’s review of the record and to assist the court in determining whether

the issues sought to be raised are truly” of no merit. Commonwealth v.

Harris, 553 A.2d 428, 434 n.5 (Pa. Super. 1989).

      At     the   time   the   PCRA    court   considered   Attorney      Lynch’s

Turner/Finley “no merit” letter, issued Appellant the Rule 907(1) notice,

dismissed Appellant’s PCRA petition, and “granted” Attorney Lynch’s petition

to withdraw as counsel, Attorney Lynch was no longer Appellant’s counsel.

Instead, Attorney Gardner was Appellant’s counsel – and, Attorney Gardner

never filed a petition to withdraw as counsel or submitted anything that

would have “detail[ed] the nature and extent” of his review of the case,

including any opinion or explanation as to the potential merits of any



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potential claim that Appellant sought to raise. Indeed, during the entirety of

Attorney Gardner’s representation of Appellant, Attorney Gardner never filed

a Turner/Finley “no merit” letter accompanied by a petition to withdraw, an

amended PCRA petition on Appellant’s behalf, or a response to the

“no-merit” letter filed by Attorney Lynch. See Commonwealth v. Powell,

787 A.2d 1017, 1019 (Pa. Super. 2001) (“When appointed, counsel's duty is

to either (1) amend the petitioner's pro se petition and present the

petitioner's claims in acceptable legal terms, or (2) certify that the claims

lack merit by complying with the mandates of Finley. If appointed counsel

fails to take either of these steps, our courts have not hesitated to find that

the petition was effectively uncounseled.”) (internal citations, quotations,

and footnote omitted).

       We conclude that Attorney Gardner remains attached as counsel in this

matter and that the PCRA court effectively denied Appellant his rule-based

right to counsel. We therefore vacate the order dismissing Appellant’s PCRA

petition and remand this case to the PCRA court.3       On remand, Attorney

Gardner shall conduct a diligent review of the record and either (1) present

Appellant’s claims in acceptable legal terms (by way of an amended PCRA
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3
   We express no opinion as to the merits of any substantive claim raised in
Appellant’s petition or in any forthcoming response to the “no-merit” letter
filed by Attorney Lynch. In addition, our ruling is without prejudice to the
submission, by Attorney Gardner, of his own Turner/Finley letter in the
event he determines, after a thorough review of the case, that there are no
meritorious claims that can be raised on behalf of Appellant.



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petition or a response to the “no-merit” letter filed by Attorney Lynch) or (2)

certify that Appellant’s claims lack merit by complying with the mandates of

Turner/Finley.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/2017




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