J-S13037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOSEPH M. CASTRO

                            Appellant                 No. 1521 WDA 2014


               Appeal from the PCRA Order entered July 9, 2014
                 In the Court of Common Pleas of Blair County
              Criminal Division at Nos: CP-07-CR-0001585-2012;
                           CP-07-CR-0001594-2012


BEFORE: BENDER, P.J.E., MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                              FILED JUNE 15, 2015

       Appellant, Joseph M. Castro, appeals from the July 9, 2014 order

entered in the Court of Common Pleas of Blair County, denying his petition

for collateral relief filed pursuant to the Post Conviction Relief Act (PCRA), 42

§§ 9541-46. For the reasons that follow, we direct counsel for Appellant to

file directly with this Court either an advocate’s brief or a petition to

withdraw and a no-merit letter complaint with the Turner/Finley line of

cases.1

____________________________________________


1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).    See also
Commonwealth v. Wrecks, 931 A.2d 717 (Pa. Super. 2007).
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      The record reflects that Appellant entered a guilty plea on November

30, 2012 to drug and gun-related charges.       In accordance with the plea

agreement, he was sentenced to five to ten years in a State Correctional

Institution.   Appellant filed a motion to modify sentence nunc pro tunc on

July 1, 2013. He also filed a PCRA petition alleging ineffectiveness of plea

counsel. By opinion and order entered July 9, 2014, the court denied and

dismissed the motion to modify sentence, explaining it no longer had

jurisdiction over the matter. Trial Court Opinion and Order, 7/9/14, at 3, 4.

The court also denied and dismissed the PCRA petition, noting the testimony

at the June 10, 2014 PCRA hearing did not support Appellant’s claim of

ineffectiveness. Id. at 3.

      [T]he credible testimony, backed by Exhibits, revealed that
      [Appellant] entered a knowing, voluntary, and intelligent guilty
      plea based on negotiations by [plea counsel] that resulted in
      [Appellant] receiving a sentence that was less than the District
      Attorney wanted him to get. He was statutorily ineligible for
      RRRI. [Appellant’s] complaint about [plea counsel] is that he
      could not get him a good enough deal; [plea counsel] testified
      credibly that he attempted to negotiate a sentence of 3 to 6
      years but that the Commonwealth would not agree. The [c]ourt
      cannot find any ineffectiveness of counsel based on the record.

Id.

      On August 12, 2014, court-appointed counsel filed a petition to

reinstate Appellant’s appeal rights nunc pro tunc from the denial of his PCRA

petition. The motion was granted on August 13, 2014. On September 9,

2014, Appellant filed a timely notice of appeal in forma pauperis.




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J-S13037-15


      In the brief filed with this Court by court-appointed counsel, one issue

is identified for our review, “Whether the Trial Court erred in dismissing the

Appellant’s current PCRA Petition.”       Appellant’s Brief at 2.      Following the

statement of facts, counsel provided a summary of the argument that reads

simply, “Appellant maintains that the trial court erred in dismissing his

Petition and his Motion.”    Id. at 3.    In the argument section that follows,

counsel presents case law regarding PCRA claims of ineffectiveness generally

and, in particular, with respect to entry of guilty pleas.       Id.    Rather than

develop any argument relating to—or even referring to—Appellant’s case,

counsel simply jumps to the conclusion section of the brief, stating, “After a

review of the record, including the discovery relative to the underlying

charges, and after written consultations with Appellant, and after a review of

the Guilty Plea Hearing transcript and the hearing held on June 10, 2014,

the undersigned avers that this appeal is frivolous.” Id. at 4.

      When counsel is appointed in PCRA proceedings, “the appointment of

counsel   shall   be   effective     throughout   the   post-conviction    collateral

proceedings, including any appeal from disposition of the petition for post-

conviction   collateral   relief.”       Pa.R.Crim.P.    904(F)(2);       see   also

Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009) (en

banc) (“[A] criminal defendant has a right to representation of counsel for

purposes of litigating a first PCRA petition through the entire appellate

process.”). However, “[w]hen, in the exercise of his professional judgment,


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counsel determines that the issues raised under the [PCRA] are meritless,

and when the [PCRA] court concurs, counsel will be permitted to withdraw

and the petitioner may proceed pro se, or by privately retained counsel, or

not at all.” Turner, 544 A.2d at 928-29 (Pa. 1988) (addressing withdrawal

of counsel under the Post Conviction Hearing Act, precursor to the PCRA).

       The issue of a PCRA litigant’s right to counsel generally arrives in this

Court in the wake of appointed counsel’s request to withdraw from

representation. In the context of a PCRA proceeding, we consider whether

counsel    has    followed    the    necessary   steps   to   withdraw   under   the

Turner/Finley line of cases.

       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. The necessary
       independent review requires counsel to file a “no-merit” letter
       detailing the nature and extent of his review and list each issue
       the petitioner wishes to have examined, explaining why those
       issues are meritless. The PCRA court, or an appellate court if the
       no-merit letter is filed before it, see Turner, supra, then must
       conduct its own independent evaluation of the record and agree
       with counsel that the petition is without merit. See
       [Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009)].

Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012).2


____________________________________________


2
  We note counsel’s conclusory statement that this “appeal is frivolous.”
Appellant’s Brief at 5. As this Court recognized in Wrecks, “Anders counsel
is not permitted to withdraw unless the appeal is wholly frivolous, but
Turner/Finley counsel is permitted to do so if the case lacks merit, even if
(Footnote Continued Next Page)


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      Recognizing Appellant is entitled to representation throughout the

appeal from denial of his first PCRA petition, we conclude that the brief filed

by counsel does not constitute an advocate’s brief nor does it satisfy the

requirements for withdrawing from representation in accord with the

mandates of Turner/Finley. Therefore, we direct that, within 30 days of

the date of this Memorandum, counsel of record shall file directly with this

Court either a brief advancing the issue raised by Appellant or a petition to

withdraw and a no-merit letter compliant with Turner/Finley.3              The

Commonwealth will then have 30 days to file a responsive brief.

      So ordered.




                       _______________________
(Footnote Continued)

it is not so anemic as to be deemed wholly frivolous.” Wrecks, 931 A.2d at
722.
3
  See Commonwealth v. Brown, 836 A.2d 997, 999 n. 2 (Pa. Super.
2003) (quoting Commonwealth v. Quail, 729 A.2d 571, 573 (Pa. Super.
1999) (outlining options to ensure first-time PCRA petitioner is afforded
representation through the entire appellate process)).




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