J-S33002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JUSTIN AHMAD CLARK                       :
                                          :
                    Appellant             :   No. 1509 MDA 2018

           Appeal from the PCRA Order Entered August 13, 2018
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0002723-2013


BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                     FILED SEPTEMBER 09, 2019

      Justin Ahmad Clark appeals, pro se, from the order, entered in the Court

of Common Pleas of Dauphin County, dismissing his petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. For the

reasons that follow, we vacate and remand for further proceedings consistent

with the dictates of this memorandum.

      On April 25, 2014, a jury convicted Clark of first-degree murder,

attempted murder, and carrying a firearm without a license.       The charges

stemmed from an incident in which Clark shot and killed a man as part of an

ongoing dispute with a third party. The shooting occurred two weeks shy of

Clark’s eighteenth birthday. On June 23, 2014, the trial court sentenced Clark

to life without parole on the homicide conviction, plus concurrent sentences of

20 to 40 years in prison for attempted homicide and three to six years'
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incarceration for the firearm violation. Post-sentence motions were denied

and Clark did not file a direct appeal.

      On November 12, 2014, Clark filed a PCRA petition claiming

ineffectiveness of counsel and seeking reinstatement of his direct appellate

rights, which the court granted on November 18, 2014.            This Court

subsequently affirmed Clark’s judgment of sentence on July 21, 2015, and our

Supreme Court denied allowance of appeal on March 1, 2016.

      Clark filed a timely pro se PCRA petition on March 1, 2017. Counsel was

appointed and, on July 14, 2017, filed a “Supplemental PCRA Petition to

Preserve the Issue of Requesting Vacation of Sentence of Life Without Parole,

and Resentencing Hearing with Discovery Pursuant to the United States

Supreme Court’s Decisions in [Miller v. Alabama, 567 U.S. 460 (2012), and

Montgomery v. Louisiana, 136 S.Ct. 718 (2016)].” In that supplemental

petition, counsel asked that the court:

      (1) vacate [Clark’s] illegal sentence;

      (2) schedule a resentencing hearing wherein [the court] may
      impose a constitutionally sound sentence that is reflective and
      proportionate to [Clark’s] level of culpability;

      (3) permit Petitioner/Undersigned counsel to supplement and/or
      amend the instant petition once the undersigned has had the
      opportunity to thoroughly review his lower court and appellate
      court record; and

      (4) grant such other relief as the [c]ourt may deem proper and in
      the interest of justice.

Supplemental PCRA Petition, 7/14/17, at [8].



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      On July 25, 2017, the PCRA court issued an order stating that

“[p]etitioner’s Motion to Supplement Initial PCRA Petition is hereby granted

and the issue of [p]etitioner’s unconstitutional sentence issue is preserved as

timely. Petitioner is allowed to further supplement the initial pro se Petition

with assistance of counsel.”       PCRA Court Order, 7/25/17.         Thereafter, on

October 13, 2017, counsel filed a supplemental PCRA petition, in which he

raised the following issues on Clark’s behalf: (1) trial counsel was ineffective

for conceding Clark’s guilt on the firearm charge; (2) trial counsel was

ineffective for failing to request a third-degree murder instruction; (3) Clark’s

sentence   of   life   imprisonment    without    the   possibility   of   parole    is

unconstitutional under Miller and Montgomery; (4) after-discovered

evidence   in   the    form   of   sentencing    consideration   granted     by     the

Commonwealth to a witness who testified against Clark at trial; and (5) Clark’s

attempted murder conviction should have merged with his murder conviction

for purposes of sentencing. In the petition, counsel noted his belief that none

of the issues raised was meritorious except the two sentencing claims.

Counsel then filed a “Motion for Sentencing Hearing Pursuant to the Post

Conviction Relief Act” on October 13, 2017. By order dated February 9, 2018,

the court scheduled a resentencing hearing, which was ultimately held on July

17, 2018. At that time, the court resentenced Clark to a term of 45 years’ to

life imprisonment for first-degree murder, and concurrent terms of 20 to 40




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years’ and 3 to 6 years’ imprisonment for attempted murder and carrying a

firearm without a license, respectively.1

       On July 26, 2018, counsel filed an amended PCRA petition raising the

following additional claims:        (1) trial counsel was ineffective or failing to

interview and investigate other potential witnesses; and (2) a new

constitutional right was established by the decision of the Pennsylvania

Supreme Court in Commonwealth v. Fulton, 179 A.3d 475 (Pa. 2018),

entitling Clark to suppression of the wireless telephone evidence. Counsel

indicated his belief that both issues lacked merit and that Clark was not

entitled to PCRA relief. Counsel did not, however, file a petition to withdraw

pursuant to Turner/Finley.2 On August 13, 2018, the PCRA court issued an

order denying Clark’s PCRA petition.

____________________________________________


1 Clark filed a post-sentence motion followed by a separate notice of appeal
of the judgment of sentence imposed on resentencing pursuant to Miller and
Montgomery. That appeal was docketed in this Court at number 1668 MDA
of 2018 and was ultimately dismissed for failure to file a brief. It is unclear
why the PCRA court essentially bifurcated the proceedings in this matter by
resentencing Clark prior to disposing of his remaining PCRA claims. However,
because only Clark’s sentence—and not his convictions—was disturbed at
resentencing, all other aspects of his original judgment remained final and the
PCRA court properly proceeded with the disposition of Clark’s remaining
claims. See Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011) (where
federal habeas petitioner granted new penalty hearing, all other aspects of
original judgment remain final for purposes of determining right to first-
petition PCRA review)

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




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       On August 27, 2018, Clark filed a pro se motion to remove counsel,

requesting that he be allowed to proceed pro se. On September 7, 2018,

Clark also filed, pro se, a notice of appeal to this Court with respect to the

PCRA court’s denial of PCRA relief. On September 12, 2018, counsel filed on

Clark’s behalf a motion for a Grazier3 hearing, indicating that Clark wished to

proceed without counsel. That same day, counsel also filed a notice of appeal

from the denial of PCRA relief.4         On September 14, 2018, the PCRA court

issued an order directing Clark to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b). On September 25, 2018, the

court issued an order denying Clark’s motion for a Grazier hearing.

       On November 6, 2018, Clark filed a motion in this Court to remand his

case to the trial court for a Grazier hearing. By order filed November 14,
____________________________________________


3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (requiring on-the-
record determination of voluntariness of waiver of counsel).

4 Two timely notices of appeal were filed with respect to the court’s August
13, 2018 order denying PCRA relief. The first was filed by Clark, pro se, on
September 7, 2018. The second was filed by counsel on September 12, 2018,
contemporaneously with a motion for a Grazier hearing. Generally, there is
no right to hybrid representation; pro se filings by a counseled defendant
constitute legal nullities. See Commonwealth v. Ellis, 626 A.2d 1137 (Pa.
1993). “When a counseled defendant files a pro se document, it is noted on
the docket and forwarded to counsel pursuant to Pa.R.Crim.P. 576(A)(4), but
no further action is to be taken.” Commonwealth v. Williams, 151 A.3d
621, 623 (Pa. Super. 2016). However, a notice of appeal is distinguishable
from other filings, as it protects a constitutional right. Id. at 624, citing Ellis,
626 A.2d at 1138-41; 210 Pa. Code § 65.24. Accordingly, “this Court is
required to docket a pro se notice of appeal despite [an a]ppellant being
represented by counsel[.]” Williams, 151 A.3d at 624.




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2018, this Court stayed the briefing schedule and remanded the case to the

trial court for purposes of a Grazier proceeding. On December 3, 2018, the

trial court entered an order directing that Clark be permitted to proceed pro

se and directing him to file a Rule 1925(b) statement. Clark filed his Rule

1925(b) statement on December 14, 2018.

       Before we address the merits of Clark’s claims, we must determine

whether he was effectively denied his rule-based right to counsel on his timely

first PCRA petition.5     See Pa.R.Crim.P. 904(C) (“[W]hen an unrepresented

defendant satisfies to the judge that the defendant is unable to afford or

otherwise procure counsel, the judge shall appoint counsel to represent the

defendant on the defendant’s first petition for post-conviction relief.”)

(emphasis added). For the reasons that follow, we conclude that he was.

       Here, PCRA counsel raised a total of seven claims on Clark’s behalf. Of

those claims, counsel concluded that five of them lacked merit, and noted that

belief in the body of the petitions. He did not, however, seek leave to withdraw

as counsel or follow the procedures required under Turner/Finley.          Clark

raises this issue in his pro se brief, arguing that:

       [i]nstead of being forced to comply with the well[-]established
       elements set forth by the Finley court[,] court[-]appointed
       counsel was allowed to utilize appellant[’]s one and only attempt
____________________________________________


5 Clark had filed a prior PCRA petition which resulted in the reinstatement of
his direct appellate rights. Accordingly, the instant PCRA petition is considered
to be a timely first PCRA petition. Commonwealth v. Karanicolas, 836 A.2d
940, 944 (Pa.Super.2003) (when PCRA petitioner’s direct appeal rights are
reinstated nunc pro tunc in first PCRA petition, subsequent PCRA petition will
be considered first PCRA petition for timeliness purposes).

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      at seeking collateral review to argue within his supplemental
      amendments why appellant[’]s claims were without merit.
      Counsel’s actions and the PCRA court[’]s concurrence[] abrogated
      Finley, as well as Pa.R.Crim.P. 907.

Brief of Appellant, at 14.

      During PCRA proceedings, “once counsel has entered an appearance on

a defendant’s behalf he is obligated to continue representation until the case

is concluded or he is granted leave by the court to withdraw his appearance.”

Commonweath v. Willis, 29 A.3d 393, 397 (Pa. Super. 2011), quoting

Commonwealth v. White, 871 A.2d 1291 (Pa. Super. 2005). As this Court

has explained:

      The Turner/Finley decisions provide the manner for [PCRA]
      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[.]

      [T]his Court [has] imposed additional requirements on counsel
      that closely track the procedure for withdrawing on direct appeal.
      . . . [C]ounsel is required to contemporaneously serve upon his
      [or her] client his [or her] no-merit letter and application to
      withdraw along with a statement that if the court granted
      counsel’s withdrawal request, the client may proceed pro se or
      with a privately retained attorney[.]

Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation

omitted).



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       Here, counsel plainly believed that Clark’s claims—save his two legality-

of-sentencing claims—were without merit. Despite this fact, after relief was

granted on Clark’s Miller/Montgomery claim, but prior to the court’s

disposition of Clark’s remaining claims, counsel failed to follow the procedures

required under Turner/Finley by requesting leave to withdraw from his

representation of Clark, submitting a proper “no-merit” letter, and advising

Clark of his right to either seek private counsel or advocate in the PCRA court

on his own behalf. Accordingly, we are constrained to vacate the PCRA court’s

order dismissing Clark’s petition and remand this matter to the PCRA court for

the appointment of new counsel. Upon his or her appointment, counsel shall

either file an amended PCRA petition on Clark’s behalf, or proceed in

accordance with the dictates of Turner/Finley and seek leave to withdraw as

counsel.6

       Further exacerbating counsel’s failure to comply with Turner/Finley,

the PCRA court dismissed Clark’s petition without first providing him notice of

its intent to do so pursuant to Pa.R.Crim.P. 907. Issuance of Rule 907 notice

is mandatory and requires vacatur of the order of dismissal, unless the

petitioner waives the claim by failing to raise it on appeal. Commonwealth

v. Guthrie, 749 A.2d 502 (Pa. Super. 2000). See also Commonwealth v.

Feighery, 661 A.2d 437 (Pa. Super. 1995) (explaining notice requirement of
____________________________________________


6 We are aware that Clark sought, and was granted, leave to proceed pro se
in this appeal. However, it is apparent from Clark’s brief that he desires an
opportunity for effective representation by counsel in the prosecution of his
claims in the PCRA court.

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intention to dismiss is mandatory; vacating and remanding for fulfillment of

notice requirement). Here, Clark has raised the lack of Rule 907 notice in his

appellate brief.     See Brief of Appellant, at 14, 22.   Given our ultimate

disposition today, we simply alert the PCRA court that, in the event it

ultimately dismisses Clark’s claims without a hearing, it must issue notice

under Rule 907 prior to doing so.7

       Order vacated; case remanded for further proceedings in accordance

with the dictates of this memorandum. Application for clarification denied.

Jurisdiction relinquished.



       Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2019




____________________________________________


7 In the event newly-appointed counsel files a proper Turner/Finley “no-
merit” letter, Rule 907 notice prior to dismissal is unnecessary, as long as
Clark is given at least 20 days to respond to any no-merit letter. See
Commonwealth v. Bond, 630 A.2d 1281 (Pa. Super. 1993) (holding PCRA
court’s dismissal without providing Rule 907 notice acceptable where dismissal
occurs more than 20 days after petitioner received counsel’s no-merit letter).

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