J-S62005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DAVID ANTONIO RUFFIN

                            Appellant                No. 378 MDA 2016


                  Appeal from the PCRA Order January 21, 2016
              in the Court of Common Pleas of Lackawanna County
               Criminal Division at No(s): CP-35-CR-0000023-2015


BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                         FILED AUGUST 17, 2016

       David Antonio Ruffin (“Appellant”) appeals from the dismissal of his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§ 9541 et seq. Having reviewed the record and determined that the PCRA

court did not expressly state that it was permitting counsel to withdraw,

although it reviewed PCRA counsel’s Turner/Finley1 no-merit letter filed

contemporaneously with counsel’s motion to withdraw and allowed Appellant

to proceed pro se after issuing its Pa.R.Crim.P. 907 notice of intent to

dismiss Appellant’s petition without a hearing (“Notice of Intent to Dismiss”),

we remand for a determination of counsel’s status.

____________________________________________


1
  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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         On April 6, 2015, Appellant pleaded guilty to institutional vandalism,2

resisting arrest,3 retail theft,4 and disorderly conduct.5 Appellant’s counsel

filed a petition for appeal bail, which the trial court denied.           On May 20,

2015, the trial court sentenced Appellant to pay a fine of $50.00 for the

retail    theft   and   an   aggregate    sentence   of   eight   to   thirty   months’

incarceration on the other convictions.6         Appellant did not file a direct

appeal.

         On July 23, 2015, Appellant filed a timely PCRA petition. 7               The

Commonwealth filed its answer to the petition on September 1, 2015. On
____________________________________________


2
    18 Pa.C.S. § 3307.
3
    18 Pa.C.S. § 5104.
4
    18 Pa.C.S. § 3929.
5
    18 Pa.C.S. § 5503.
6
  Specifically, the trial court sentenced Appellant to consecutive sentences of
three to twelve months’ incarceration for the institutional vandalism
conviction, three to twelve months’ incarceration for the resisting arrest
conviction, and two to six months’ incarceration for the disorderly conduct
conviction. Each sentence was a standard range sentence.
7
 The allegations contained within Appellant’s PCRA petition included, in their
entirety:

         I never spit on nobody.      I never caused any damage to
         Carbondale Police Station nor threw ceiling panels at officers. I
         only attempted to steal one bag of chips, I payed [sic] for the
         rest.

         I have never escaped from any institution.
(Footnote Continued Next Page)


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October 22, 2015, appointed PCRA counsel filed a Turner/Finley no-merit

letter in which he indicated there were no meritorious issues, together with a

motion to withdraw appearance. On December 8, 2015, the PCRA court filed

its Notice of Intent to Dismiss,8 to which Appellant responded on December

28, 2015. On January 21, 2016, the PCRA court dismissed the petition, but

did not rule on counsel’s motion to withdraw.        On February 11, 2016,

Appellant filed a timely pro se notice of appeal.   Appellant and the PCRA

court thereafter complied with Pa.R.A.P. 1925.9

      In his pro se brief, filed with this Court on May 19, 2016, Appellant

raises the following issues for review:

      1. Whether the representation afforded to appellant was
      defective when his attorney erred in putting no effert into
      appellant bail reduction petition, when counsel was first afforded
      to appellant.

                       _______________________
(Footnote Continued)

      I need a different attorney.      He failed to file motion of
      reconsideration, and the plea bargain, for time served.

PCRA Petition, p. 4.
8
  In its Notice of Intent to Dismiss, the PCRA court rephrased Appellant’s
issues as (1) an assertion “that the description of the crimes alleged by the
Commonwealth is incorrect, and [(2)] that [Appellant] was promised a
sentence of time served but did not receive it.” Notice of Intent to Dismiss,
p. 2. The PCRA court further acknowledged that Appellant attempted to
raise an illegal sentence claim in response to appointed counsel’s
Turner/Finley letter. See id.
9
  The PCRA court’s Pa.R.A.P. 1925(a) opinion, filed April 7, 2016, adopts the
reasoning contained in the court’s December 8, 2015 Notice of Intent to
Dismiss as its 1925(a) opinion.



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     2. Whether appellant’s plea of guilty was unconstitutional when
     the court and my (appellant) attorney erred in not informing me
     the true nature of the charges against me, not providing me with
     the correct statute description(s).

     3. Whether the representation afforded to appellant was
     defective in not investigating and or performing certain pretrial
     functions.

     4. Whether representation afforded to appellant was defective
     when attorney erred in introducing appellant’s mental health
     evaluation, misconduct’s received at Lackawanna county prison,
     and out-of-state warrants.

     5. Whether representation afforded to appellant was defective
     when attorney erred in not objecting to the admissibility of
     appellant’s misconduct’s received at Lackawanna county prison
     (LCP), the colored uniform used to designated RHU (restricted
     housing unit) status, out-of-state warrants, mental health
     evaluation, and district attorney introducing details of the case
     that were not in the affidavit.

     6. Whether my plea of guily was unconstitutional when the trial
     court erred in allowing me (appellant) to continue entering my
     plea of guilty accepting my plea of guilty after representation
     afforded to me yell at me, using double entendre that ment to
     me a threat after the trial court asked me did I pull down ceiling
     tille panels in the Carbondale Police Station bathroom.

     7. Whether my conviction was based upon evidence the
     prosecution and my attorney knew or should have known was
     false.

     8. Whether attorney afforded to appellant was defevtive and
     ineffective when attorney erred in not filing an appeal although
     appellant would have wanted to file one.

     9. Whether appellant was denied his Eighth Amendment right to
     be free from excessive fines, costs, and cruel and unusual
     punishment




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        10. whether the trial court erred in sentencing appellant outside
        the standard and aggravated ranges of appellant’s guidelines
        and did not state valid reason for aggravated sentence.

Appellant’s Brief, Statement of Questions Presented10 (verbatim).

        Initially, despite the fact the PCRA court allowed Appellant to proceed

pro se following the Notice of Intent to Dismiss, neither the Notice of Intent

to Dismiss nor the order dismissing Appellant’s PCRA petition expressly state

that counsel was allowed to withdraw.            Accordingly, the record is unclear

whether the PCRA court permitted PCRA counsel to withdraw.

        Appellant is entitled to counsel on a first PCRA petition, including any

appeal.    See Pa.R.Crim.P. (904)(F)(2); Commonwealth v. Figueroa, 29

A.3d 1177 (Pa.Super.2011); Commonwealth v. Robinson, 970 A.2d 455

(Pa.Super.2009). If the PCRA court permits withdrawal of counsel based on

the filing of a Turner/Finley no-merit letter, then the PCRA court need not

appoint new counsel.          Commonwealth v. Maple, 559 A.2d 953, 956

(Pa.Super.1989).           Further,     long-standing    policy   prohibits   hybrid

representation in the courts of the Commonwealth. See Commonwealth v.

Jette, 23 A.3d 1032, 1036 (Pa.2011).

        Our Supreme Court has explained:

        When, in the exercise of his professional judgment, 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.
____________________________________________


10
     Appellant does not begin numbering his brief until the Argument section.



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Commonwealth v. Turner, 544 A.2d 927, 928–29 (Pa.1988).

      Here, the record evinces that the PCRA court concurred with counsel’s

assessment regarding Appellant’s PCRA issues; thus it would appear to be a

mere formality that the PCRA court did not include in the Notice of Intent to

Dismiss or its final order that it granted counsel’s request to withdraw.

However, because this is Appellant’s first PCRA petition, and because no

order was contained within the record expressly authorizing counsel’s

withdrawal, out of an abundance of caution, we remand to the PCRA court

for a determination as to counsel’s current status in the case within 30 days

of the date of this decision.

      Case remanded. Jurisdiction retained.




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