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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :     IN THE SUPERIOR COURT OF
                                               :           PENNSYLVANIA
                       v.                      :
                                               :
COREY WILLIS FERGUSON,                         :          No. 1966 MDA 2016
                                               :
                             Appellant         :


                 Appeal from the PCRA Order, November 28, 2016,
                   in the Court of Common Pleas of York County
                 Criminal Division at No. CP-67-CR-0006179-2014


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED AUGUST 07, 2017

        Corey     Willis    Ferguson     appeals,   pro   se,   from   the   order   of

November 28, 2016, denying his PCRA1 petition. We vacate and remand for

appointment of new counsel.

        The PCRA court has summarized the procedural history of this matter

as follows:

                      On July 7, 2015, Appellant pled guilty to
                Count 1 Fleeing or Attempting to Elude an Officer[2]
                and to Count 10 Driving while Operating Privilege
                Suspended or Revoked.[3]        On Count 1, the
                Appellant was sentenced to a minimum of 11 months
                and 15 days to a maximum of 23 months[’]
                imprisonment.     On Count 10, Appellant was

1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
    75 Pa.C.S.A. § 3733(a).
3
    75 Pa.C.S.A. § 1543(a).
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            sentenced on September 29, 2015 to a minimum of
            6 months to a maximum 6 months[’] imprisonment.
            The counts were to run consecutive for an aggregate
            total of 17½ months to 23 months. A motion for
            reconsideration of sentence was filed on October 5,
            2015, which was cancelled and then later re-filed on
            May 26, 2016.       Following a hearing, this Court
            denied the motion. A [PCRA] Petition was filed on
            July 18, 2016, which was denied on November 28,
            2016.    Appellant filed the notice of appeal on
            December 2, 2016. On December 22, 2016, the
            Appellant filed the Statement of Matters Complained
            of on Appeal.

PCRA court opinion, 4/7/17 at 1-2.

      The record reflects that on July 18, 2016, appellant filed a timely

pro se PCRA petition, his first. Therein, appellant alleged that trial counsel,

William H. Graff, Esq., was ineffective for failing to file a pre-trial

suppression motion and in connection with the entry of an invalid and

involuntary plea. Appellant requested appointment of PCRA counsel.

      On July 26, 2016, George H. Margetas, Esq., was appointed to

represent appellant in the PCRA proceedings. Attorney Margetas did not file

a counseled amended petition on appellant’s behalf. On November 7, 2016,

an order was entered granting appellant in forma pauperis status and

scheduling a PCRA hearing for November 28, 2016.             In addition, the

November 7 order specifically directed PCRA counsel to file either an

amended petition or a petition to withdraw and Turner/Finley “no merit”

letter:

            Appointed counsel is directed to review the record
            and the pro se Motion filed by [appellant] and,


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              WITHIN 30 DAYS of the date of this Order, file an
              Amended Motion for Post-Conviction Collateral Relief
              that specifically sets forth the grounds for relief and
              specific averments of fact in support thereof, or a
              Finley Letter, if appropriate.       See Pa.R.Crim.P.
              902(A)(11) and 902(A)(12).

Order, 11/7/16 at 2 (capitalization in original; some emphasis added).

      Attorney Margetas did not file an amended petition for appellant, nor

did he file a petition to withdraw accompanied by a Turner/Finley4 no-merit

letter explaining why the issues appellant wished to raise were frivolous. An

evidentiary hearing was held on November 28, 2016, at which both

appellant and trial counsel testified.       Appellant was still represented by

Attorney Margetas at this point.       Prior to calling appellant to the stand,

Attorney Margetas informed the court that he did not believe appellant’s

petition had any merit: “He is saying that Mr. Graff was ineffective because

he failed to file a suppression motion, which I will note for the Court in my

review of it I also do not see any merit in that claim, but Mr. Ferguson wants

to pursue it.” (Notes of testimony, 11/28/16 at 2.) Attorney Margetas also

opined that Attorney Graff had reasons not to file a suppression motion.

(Id. at 4.)    Appellant protested that Attorney Margetas was not providing

effective representation but was cut off by the PCRA court:

              THE COURT: He’s been appointed to represent you,
              sir.



4
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).


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           [APPELLANT]: Okay, but he is not doing what I
           asked him to do. He hasn’t came [sic] and see [sic]
           me.

           THE COURT: He is an attorney, you are not, and he
           is doing what an attorney does. I don’t know what
           you have asked him to do, but if you asked him to
           jump out the window, he is not going to.

           [APPELLANT]: I asked him to do something. He is
           telling me it doesn’t have merit.

           THE COURT: Sir, do you want to have this hearing?

           [APPELLANT]: Yes, I do.

           THE COURT: Or do you want me to send you back
           downstairs?

           [APPELLANT]: I’m trying --

           THE COURT: No, you are interrupting everything. I
           will explain how this works. He is required by the
           rules if he believes as an attorney to tell the Court
           that he thinks there’s no merit to your case. He is
           telling me that as an attorney he thinks there is no
           merit to your case. The real person that decides if
           there is merit to your case is who?

           [APPELLANT]: You.

           THE COURT: Got it. Now, you want to have your
           hearing. He is saying my client still wants to have
           this hearing. So he is advancing your cause as you
           have requested, correct?

           [APPELLANT]: Okay. Yes, he is.

           THE COURT: All right. So knock it off. Let’s have
           the hearing.

Notes of testimony, 11/28/16 at 2-4.




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        Following the testimony, the PCRA court denied appellant’s petition

and granted Attorney Margetas permission to withdraw, despite the fact that

Attorney Margetas had not formally petitioned to withdraw and did not

comply with the dictates of Turner/Finley and their progeny.              (Id. at

44-45.)

        Thereafter, appellant filed an amended pro se PCRA petition on

November 29, 2016, followed by a pro se notice of appeal on December 2,

2016.      Appellant was ordered to file a concise statement of errors

complained of on appeal within 21 days pursuant to Pa.R.A.P. 1925(b), and

timely complied by filing a pro se Rule 1925(b) statement on December 22,

2016. On April 7, 2017, the PCRA court issued a Rule 1925(a) opinion.

        In his pro se brief on appeal, appellant challenges the legality of his

sentence.        Appellant argues that his flat six-month sentence for driving

under suspension violated Section 9756 of the Sentencing Code which

provides that in imposing total confinement, the trial court shall specify a

maximum period, as well as a minimum sentence that does not exceed

one-half    of    the   maximum.     42   Pa.C.S.A.   §   9756(a),   (b)(1);   see

Commonwealth v. Postie, 110 A.3d 1034, 1044 (Pa.Super. 2015)

(defendant’s flat four-month sentence for summary offense of driving while

operating privilege is suspended or revoked was illegal).       The PCRA court

acknowledged that appellant’s sentence was illegal and on April 5, 2017,

issued an order modifying appellant’s sentence on Count 10, driving under a



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suspended license, to three to six months’ incarceration.          (PCRA court

opinion, 4/7/17, Exhibit 1.)

      The Commonwealth claims that any other issues raised in appellant’s

pro se Rule 1925(b) statement are waived, with the exception of the validity

of appellant’s guilty plea, because they were not raised in his pro se PCRA

petition and/or not argued in his pro se brief on appeal.       This position is

simply untenable because appellant was not afforded his right to effective

representation on a first PCRA petition.

                   Defendants have a general rule-based right to
            the assistance of counsel for their first PCRA Petition.
            Pa.R.Crim.P.      904(C);       Commonwealth          v.
            Robinson, 970 A.2d 455, 457 (Pa.Super. 2009)
            (en banc) (stating, “a criminal defendant has a right
            to representation of counsel for purposes of litigating
            a first PCRA petition through the entire appellate
            process[]”).    “The indigent petitioner’s right to
            counsel must be honored regardless of the merits of
            his underlying claims, even where those claims were
            previously addressed on direct appeal, so long as the
            petition in question is his first.” Commonwealth v.
            Powell, 787 A.2d 1017, 1019 (Pa.Super. 2001)
            (citation omitted).     “Moreover, once counsel is
            appointed, he [or she] must take affirmative steps to
            discharge his [or her] duties.” Id.

                  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 Turner/Finley. “If
            appointed counsel fails to take either of these steps,
            our courts have not hesitated to find that the petition
            was effectively uncounseled.” Powell, 787 A.2d at
            1019 (citation omitted).




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Commonwealth v. Cherry, 155 A.3d 1080, 1082-1083 (Pa.Super. 2017)

(footnote omitted).

                 “Once appointment has been made,
                 counsel may seek to withdraw, after a
                 thorough review of the record has
                 been made, where non-frivolous issues
                 justifying the pursuit of post-conviction
                 collateral      relief   are      lacking.”
                 [Commonwealth v. Kaufmann, 592
                 A.2d 691, 698 (Pa.Super. 1991)]
                 (emphasis added) [, (citing Finley,
                 supra      at   214),]  ([stating]    post-
                 conviction counsel may seek to withdraw
                 by filing “no-merit” letter detailing the
                 nature and extent of his review, listing
                 the issues raised by the petitioner, and
                 explaining why petitioner’s issues are
                 meritless). Counsel may not, however,
                 accept         appointment,        thereby
                 engendering the reliance of both his
                 client     and    the  court,     without
                 undertaking of record either to
                 advance his client’s claims or certify
                 their lack of merit.

                 In addressing the petitioner’s right to
                 counsel under the precursor to the PCRA,
                 we admonished that “[w]hen 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....”   [Commonwealth v.
                 Ollie, 304 Pa.Super. 505, 450 A.2d
                 1026, 1028 (Pa.Super. 1982)]; [(quoting
                 Commonwealth v. Sangricco, 490 Pa.
                 126, 415 A.2d 65 (1980))] (internal
                 quotation marks omitted).      Both this
                 Court and our Supreme Court have


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                 recognized that a post conviction petition
                 is effectively uncounseled under a variety
                 of 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.’” Sangricco, supra at 133, 415
                 A.2d at 68 [(quoting Commonwealth v.
                 Fiero, 462 Pa. 409, 413, 341 A.2d 448,
                 450 (1975)].

           [Commonwealth v. Hampton, 718 A.2d 1250,
           1252-1254 (Pa.Super. 1998)] (emphasis added).
           “This right to representation exists ‘throughout the
           post-conviction proceedings, including any appeal
           from disposition of the petition for post conviction
           relief.’” Commonwealth v. Quail, 729 A.2d 571,
           573 (Pa.Super. 1999) (quoting Pa.R.Crim.P. 904(E)).

Commonwealth v. Karanicolas, 836 A.2d 940, 946-947 (Pa.Super. 2003)

(emphasis in Karanicolas; most brackets in original; footnote omitted).

“The right to counsel on an indigent petitioner’s first PCRA petition is not

limited to the mere naming of an attorney. To have any meaning, the rule

also requires appointed counsel to provide meaningful representation.”

Commonwealth v. Perez, 799 A.2d 848, 852 (Pa.Super. 2002), citing

Hampton, supra.

           Therefore,    where     an     appellant’s    right    to
           representation has “been effectively denied by the
           action of court or counsel, the petitioner is entitled to
           a remand to the PCRA court for appointment of
           counsel to prosecute the PCRA petition. The remand
           serves to give the petitioner the benefit of competent
           counsel at each stage of post-conviction review.”

Id., quoting Commonwealth v. Kenney, 732 A.2d 1161, 1164 (Pa. 1999).



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      Here, as in Cherry, appointed PCRA counsel neither filed an amended

PCRA petition on appellant’s behalf, nor certified that appellant’s claims

lacked merit and sought leave to withdraw pursuant to Turner/Finley.

Cherry, 155 A.3d at 1083. Appellant did not ask to proceed pro se, and

the PCRA court did not hold a waiver-of-counsel hearing pursuant to

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).             Id.   Instead,

Attorney Margetas basically sandbagged his client at the November 28, 2016

PCRA evidentiary hearing, asserting that appellant’s claims were meritless

despite never having actually petitioned to withdraw as counsel. (Notes of

testimony, 11/28/16 at 2-4.)         Appellant was effectively denied the

assistance of counsel on his first PCRA petition.

      For these reasons, it is necessary to vacate the order denying

appellant’s PCRA petition and remand for appointment of new counsel within

30 days.   Appellant’s new counsel shall be permitted to file an amended

PCRA petition or a Turner/Finley letter.

      Order vacated.      Case remanded with instructions.     Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/7/2017



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