J-S59032-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JOSE MANUEL SANTIAGO,

                            Appellant           No. 808 EDA 2014


            Appeal from the PCRA Order Entered February 26, 2014
               in the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0002649-2011,
                           CP-15-CR-0002721-2010

BEFORE: SHOGAN, LAZARUS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED OCTOBER 07, 2014

       Jose Manuel Santiago (Appellant) appeals from the February 26, 2014

order which denied his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We remand with instructions.

       The PCRA court summarized the facts of the case as follows.

              On March 26, 2012, Appellant pled guilty to three counts
       of rape, three counts of involuntary deviate sexual intercourse,
       and one count of aggravated indecent assault.[1] At his plea
       hearing, Appellant admitted that he engaged in sexual
       intercourse and deviate sexual intercourse with his daughter and
       with two of his nieces, all of whom were minors at the time of
       his crimes. He also admitted to digitally penetrating the genitals
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  In exchange for his guilty pleas to these counts, the Commonwealth
withdrew over 1,600 additional counts against Appellant. N.T., 3/26/2012,
at 12.
J-S59032-14


      of another daughter, who was also a minor at the time of the
      crime. He was sentenced that day to a term of imprisonment of
      twelve and one-half to twenty-five years.

             On February 21, 2013, Appellant filed a pro se PCRA
      petition. [The PCRA court] appointed him PCRA counsel on
      February 27, 2013.       On April 29, 2014, counsel moved to
      withdraw his representation, having found no issue that would
      entitle Appellant to post-conviction relief. [The PCRA c]ourt also
      conducted an independent review of the file and of the record,

      knowingly, voluntarily and intelligently, and that his sentence
      was legal. Thus, on June 6, 2013, [the PCRA court] entered an
      order giving Appellant the mandatory twenty day notice of [its]
      intention to dismiss his PCRA petition without a hearing.

            Appellant responded to this notice on June 27, 2013. In
      his response he raised a somewhat ambiguous claim that he
      requested his trial counsel to file a direct appeal of his sentence.

      issue [alone and ordered PCRA counsel to continue to represent
      Appellant].


      The evidence presented at the hearing revealed that Appellant
      never requested his trial counsel to file a direct appeal of his
      sentence. For that reason, on February 26, 2014, [the PCRA


PCRA Court Opinion, 4/7/2014, at 1-2 (citations to the record omitted).

      Appellant, pro se, filed a notice of appeal on March 6, 2014. On March

18, 2014, the PCRA court entered orders (1) granting PCRA counsel leave to

withdraw, and (2) requiring Appellant to file a concise statement of errors

complained of on appeal. On April 1, 2014, Appellant filed a statement. The

PCRA court filed its opinion on April 7, 2014.



awkward procedure by which they have come before us.

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J-S59032-14


      First, Appellant was represented by counsel at the time he filed the

notice of appeal. Generally, such hybrid representation is not allowed, and

pro se filings by represented parties are considered legal nullities.   See,

e.g., Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010) (holding pro se

1925(b) statement filed by an appellant who was represented by counsel on

appeal was a legal nullity). However, our Supreme Court has held that a pro

se notice of appeal from a final judgment filed by a represented appellant is

not automatically void.   Commonwealth v. Cooper, 27 A.3d 994, 1007

(Pa. 2011) (holding Superior Court erred in declining to address the merits

of pro se appeal after subsequently-filed counseled appeal was dismissed as

duplicative). Given that Appellant clearly wished to appeal the dismissal of

his petition and that the PCRA court granted counsel leave to withdraw



appeal for want of a valid notice of appeal.

      Second                                              pro se brief, which

fails in many respects to comply with the Rules of Appellate Procedure,

because the PCRA court permitted counsel to withdraw his representation

after the notice of appeal was filed. For the following reasons, we hold that

the PCRA court erred in so doing.

             [B]efore an attorney can be permitted to withdraw from
      representing a petitioner under the PCRA, Pennsylvania law
      requires counsel to file and obtain approval of        -
      letter pursuant to the mandates of [Commonwealth v. Turner,
      544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550
      A.2d 213 (Pa. Super. 1988) (en banc)].

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J-S59032-14



Commonwealth v. Willis, 29 A.3d 393, 400 (Pa. Super. 2011) (quoting

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

(emphasis added).

             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
                                                          -
      detailing the nature and extent of his review and list each issue
      the petitioner wishes to have examined, explaining why those

      own independent evaluation of the record and agree with
      counsel that the petition is without merit.

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

(emphasis added).



principles in Commonwealth v. Jackson, 965 A.2d 280 (Pa. Super. 2009),



counsel, who had filed a Turner/Finley letter and corresponding motion,

was permitted to withdraw.        This Court affirmed.   Jackson filed a second

PCRA petition, which the PCRA court dismissed without a hearing. On appeal

from the dismissal of the second petition, this Court reversed and remanded

for a hearing.   Counsel was appointed.       Following the hearing, the PCRA




counsel for representation at t

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J-S59032-14


litigation of the issue.     Such litigation necessarily includes the appeals

              Id. at 284. Therefore, this court determined that the PCRA court

erred in relieving counsel of his duties prior to the conclusion of the

litigation.    Accordingly, we remanded the case for the appointment of

counsel, and allowed the filing nunc pro tunc of a counseled 1925(b)

statement and responsive 1925(a) opinion. Id.

       Here, counsel filed a Turner/Finley letter on April 29, 2013.           The

                                      pro se response to its notice of intent to

                                                       not without merit on its

face, and ordered counsel to continue representing Appellant at the

evidentiary hearing conducted on October 1, 2013, thus, in effect, denying



2014, without counsel having         filed   a new    petition   to withdraw    or

Turner/Finley letter.

       Appellant was entitled to the benefit of counsel throughout the

litigation of the issue on which the PCRA hearing was ordered, including the

appeals process.      Jackson, 965 A.2d at 284.      Therefore, the PCRA court

erred in sua sponte

conclusion of the hearing, and while this appeal was pending before this

Court.

       Accordingly, we remand this case for the appointment of counsel, who

shall file a 1925(b) statement nunc pro tunc.        Thereafter, the PCRA court


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J-S59032-14


shall file either a new 1925(a) opinion or a statement indicating that it relies

upon its prior opinion.   Upon the return of the record to this Court, the

prothonotary shall enter a new briefing schedule, in accordance with which

                                                               r a petition to

withdraw and Turner/Finley brief addressing the issues Appellant wishes to

raise on appeal.

      Case remanded with instructions. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2014




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