J-S64031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CARLTON BRYANT,

                            Appellant                No. 141 EDA 2016


                 Appeal from the PCRA Order December 7, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0209461-1998
                            CP-51-CR-0902151-1997
                            CP-51-CR-0902181-1997
                            CP-51-CR-0904981-1997

BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                     FILED AUGUST 23, 2016

       Appellant Carlton Bryant appeals pro se from the December 7, 2015,

order entered in the Court of Common Pleas of Philadelphia County

dismissing his petition filed under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546, after court-appointed PCRA counsel filed a

Turner/Finley1 no-merit letter and petition seeking to withdraw his

representation. The record reveals the PCRA court did not expressly rule on

PCRA counsel’s petition to withdraw, and the record is otherwise unclear as

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1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),                         and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).




*Former Justice specially assigned to the Superior Court.
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to whether counsel has been permitted to withdraw.          Accordingly, for the

following reasons, we remand this matter for a determination as to court-

appointed PCRA counsel’s status.

       Appellant entered a plea of nolo contendere to ten counts of robbery,

three counts of criminal conspiracy, and one count of carrying a firearm

without a license. On November 6, 2000, the trial court imposed an

aggregate sentence of 19½ to 40 years in prison, and following the

reinstatement of Appellant’s direct appeal rights nunc pro tunc via a timely

filed PCRA petition, this Court affirmed Appellant’s judgment of sentence on

July 23, 2004. Commonwealth v. Bryant, No. 3559 EDA 2003 (Pa.Super.

filed 7/23/04) (unpublished memorandum).         Appellant did not file a petition

for allowance of appeal with our Supreme Court.

       On September 18, 2014, Appellant filed a pro se PCRA petition, which

was considered to be his first PCRA petition,2 and on July 8, 2015, he filed

an amended pro se PCRA petition. The PCRA court appointed Douglas Earl,

Esquire, (“PCRA counsel”) to represent Appellant. On July 23, 2015, PCRA

counsel filed a Turner/Finley no-merit letter and petition seeking to

withdraw his representation. Therein, PCRA counsel averred that Appellant’s

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2
   “This Court has explained that when a PCRA petitioner's direct appeal
rights are reinstated nunc pro tunc in his first PCRA petition, a subsequent
PCRA petition will be considered a first PCRA petition[.]” Commonwealth
v. Turner, 73 A.3d 1283, 1286 (Pa.Super. 2013) (citations omitted).




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September 18, 2014, petition was untimely filed and, alternatively, the

issues which Appellant wished to raise lack merit. He further averred that

he could not find any other issues of merit.

      On October 2, 2015, the PCRA court, indicating PCRA counsel had filed

a no-merit letter pursuant to Turner/Finley and the court agreed with

counsel’s letter, provided Appellant with notice of its intent to dismiss the

PCRA petition without an evidentiary hearing.         On October 13, 2015,

Appellant filed a pro se response to the notice of dismissal.        Therein,

Appellant argued, inter alia, that PCRA counsel “misinterpreted his PCRA

petition.”

      On December 7, 2015, the PCRA court entered an order dismissing

Appellant’s PCRA petition. However, relevantly, the PCRA court indicated in

the December 7, 2015, order that “[u]pon [Appellant’s] request, present

PCRA counsel [is] to file an appeal to the dismissal of [Appellant’s] petition

in the Superior Court of Pennsylvania within thirty (30) days from the date

of the Formal Dismissal of [the] PCRA Petition.” PCRA Court’s Order, filed

12/7/15.     The PCRA court served this order upon Appellant and PCRA

counsel.

      On December 18, 2015, Appellant filed a pro se notice of appeal, and

by order filed on January 8, 2016, the PCRA court directed Appellant to file a

statement pursuant to Pa.R.A.P. 1925(b).       The court served the Pa.R.A.P.

1925(b) order upon Appellant and PCRA counsel.        Appellant filed a timely


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pro se statement, and the PCRA court filed a responsive Pa.R.A.P. 1925(a)

opinion.   In its opinion, although the PCRA court notes “[c]ounsel was

appointed and a Finley letter filed[,]” the court does not indicate whether

the request to withdraw was granted. PCRA Court’s Pa.R.A.P. 1925(a)

Opinion, filed 2/16/16, at 2.

      Appellant has filed a pro se brief in this Court presenting the following

issues:

      I.     Did the PCRA court err in finding that the issues raised
      herein were previously litigated?

      II.    Where Appellant challenged the constitutionality of his
      sentence in light of Alleyne v. United States, 133 S.Ct. 2151
      (2013), and the PCRA court was presented with three valid
      exceptions to the timeliness requirement, did the PCRA court err
      in finding that no exceptions apply?

      III. Where the record indicated that Appellant was an unarmed
      co-conspirator, and in Commonwealth v. Dickson, 918 A.2d
      95 (Pa. 2009), the Supreme Court held a similar challenge
      meritorious, did the PCRA court err in denying Appellant relief?

      IV.    Did the PCRA court deprive Appellant of his right to
      petition the court for a redress of his grievances?

Appellant’s Pro Se Brief at 8.

      Since the record does not explicitly indicate that court-appointed PCRA

counsel was permitted to withdraw and counsel has not entered an

appearance or filed a Turner/Finley no-merit letter on appeal, we remand

for a determination as to counsel’s status. Appellant is entitled to counsel

on a first-time PCRA petition, including any appeal.        See Pa.R.Crim.P.

904(F)(2); Commonwealth v. Figueroa, 29 A.3d 1177 (Pa.Super. 2011);

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

This legal precept holds true even when a PCRA petition is facially untimely.

See Commonwealth v. Smith, 818 A.2d 494 (Pa. 2003).

     Of course, if PCRA counsel was permitted to withdraw in the lower

court based on the filing of a Turner/Finley no-merit letter, then there is

no requirement that new counsel be appointed. Commonwealth v. Maple,

559 A.2d 953 (Pa.Super. 1989). On the other hand, if PCRA counsel was not

permitted to withdraw, his failure to submit a brief on appeal is considered

abandonment and      per se ineffectiveness.     See Commonwealth v.

Bennett, 930 A.2d 1264 (Pa. 2007).

     Presently, the record is unclear as to whether PCRA counsel was

permitted to withdraw as the orders issued by the PCRA court do not

expressly state that counsel was allowed to withdraw from the case.

Moreover, on the one hand, in its notice of intent to dismiss, the PCRA court

indicated it agreed with PCRA counsel’s Turner/Finley no-merit letter. Our

Supreme Court has stated: “When, in the exercise of his professional

judgment, counsel determines that the issues raised under the PCHA [(the

predecessor to the PCRA)] are meritless, and when the PCHA court concurs,

counsel will be permitted to withdraw[.]” Turner, 544 A.2d at 928-29. In

the case sub judice, the record clearly evinces that the PCRA court concurred




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with PCRA counsel’s assessment; thus, it would appear that the PCRA court

intended to permit counsel to withdraw.3

       However, on the other hand, the PCRA court indicated in its December

7, 2015, order dismissing the PCRA petition that PCRA counsel was to file an

appeal to this Court “upon Appellant’s request.” This suggests that the PCRA

court did not permit PCRA counsel to withdraw.

       It   is   well   settled    that    hybrid   representation    is   prohibited.

Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011).                      Accordingly, we

instruct the PCRA court to hold a hearing, within thirty days of the filing of

this decision, to ascertain the status of PCRA counsel. If PCRA counsel was

permitted to withdraw, then we shall proceed to address Appellant’s issues

presented in his pro se brief.

       Alternatively, if PCRA counsel was not initially allowed to withdraw, the

PCRA court shall conduct a Grazier4 colloquy to allow Appellant the

opportunity to continue pro se. Should Appellant elect not to proceed pro

se, new counsel is not required; but rather, PCRA counsel must submit

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3
  Additionally, the certified docket entries contain a notation that, on
December 4, 2015, the PCRA court entered an “Order Dismissing PCRA
Petition.   [A]tty removed.”      However, the certified record contains no
corresponding order. Moreover, as indicated supra, the PCRA court entered
a subsequent order on December 7, 2015, which is contained within the
certified record, that dismissed Appellant’s PCRA petition and directed PCRA
counsel to file an appeal to this Court “upon [Appellant’s] request.”
4
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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either an advocate’s brief on behalf of Appellant or a Turner/Finley no-

merit letter with this Court within sixty days of the determination. In this

latter event, the Commonwealth will be permitted thirty days to file a

responsive brief.

      Case remanded. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2016




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