J-S20010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 KENNETH PERALTA,                          :
                                           :
                    Appellant              :   No. 710 MDA 2017


            Appeal from the PCRA Order entered March 13, 2017,
             in the Court of Common Pleas of Lancaster County,
            Criminal Division at No(s): CP-36-CR-0004271-2011.


BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                             FILED MAY 31, 2018

      Kenneth Peralta appeals from the order denying his first petition filed

pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. After careful review, we vacate the PCRA court’s order and remand this

case with instructions.

      The pertinent facts are easily summarized as follows: On September

17, 2012, Peralta pled guilty to attempted homicide, robbery, two firearm

violations, and retail theft after he shot a loss prevention officer while trying

to flee a local grocery store with stolen items. On November 19, 2012, the

trial court sentenced him to an aggregate term of 35 to 70 years of

imprisonment. Peralta filed a timely appeal to this Court following the denial

of his post-sentence motion, and we affirmed his judgment of sentence in an
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unpublished memorandum filed on October 31, 2013. Commonwealth v.

Peralta, No. 154 MDA 2013.

      The procedural history that follows is not as simple, and requires a

detailed recitation: On June 16, 2014, Peralta filed a pro se PCRA petition in

which he raised claims of ineffective assistance of plea counsel in connection

with the entry of his guilty plea. On July 25, 2014, the PCRA court appointed

R. Russell Pugh, Esquire to assist Peralta. On September 19, 2014, Attorney

Pugh filed an amended petition on Peralta’s behalf.       Rather than raising

ineffectiveness claims, the amended petition raised only a claim that Peralta’s

aggregate sentence was illegal in light of the Alleyne v. U.S., 133 S.Ct. 2151

(2013), and Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014).

      By agreement of the parties, the PCRA court, on October 20, 2014,

stayed Peralta’s PCRA petition pending the Pennsylvania Supreme Court’s

decision in Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015). On June

5, 2015, our Supreme Court in Hopkins held that the procedure for imposing

a two-year mandatory minimum sentence for certain drug offenses committed

within 1,000 feet of a school, 18 Pa.C.S.A. § 6317, was unconstitutional in

light of Alleyne, and that these provisions were not severable from the

remainder of the statute, thereby rendering the entire statute involving

mandatory minimum sentences unconstitutional. See id.

      On June 22, 2015, the Commonwealth filed a response to Peralta’s

amended PCRA in which it averred that Peralta’s aggregate sentence did not

include a mandatory minimum sentence. On September 9, 2015, the PCRA

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court issued Pa.R.Crim.P. 907 notice of its intent to dismiss Peralta’s amended

petition without a hearing.1

       Although still represented by Attorney Pugh, on October 19, 2015,

Peralta filed a pro se motion for extension of time in which to respond to the

court’s Rule 907 notice. Attached as an exhibit was a September 18, 2015,

in which Attorney Pugh informed Peralta that his aggregate sentence was not

illegal, because the trial court sentenced him to a higher minimum sentence

at the applicable counts than the now unconstitutional five-year mandatory

minimum. In this letter, Attorney Pugh stated that he would file the appeal,

but told Peralta he would also be filing a “motion to withdraw as your attorney

per the Turner/Friend line of cases.             You will be free to make whatever

arguments you wish to the Superior Court.” Letter, 10/19/15 at 1.

       Although Attorney Pugh remained counsel of record, the trial court, by

order entered October 30, 2015, granted Peralta an additional thirty days to

file his Rule 907 pro se response. On December 7, 2015, Peralta filed another

PCRA petition in which he raised multiple claims of plea counsel’s

ineffectiveness and, referring to Attorney Pugh’s letter, requested that

Attorney Pugh withdraw from the case.

       By order entered December 9, 2015, the PCRA court referred Peralta’s

filing, which the court characterized as an amended petition, to Attorney Pugh,
____________________________________________


1 According to this notice, “[b]oth parties agreed that a hearing on the
amended petition was unnecessary, and the issue was submitted to the Court
for a decision.” Rule 907 Notice, 9/9/15, at 4.


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“for whatever action is deemed appropriate.” On December 11, 2015, Peralta

filed a pro se objections/response to the PCRA court’s Rule 907 notice. In his

response, Peralta reiterated that in his second PCRA petition, he had asserted

Attorney Pugh’s ineffective assistance in that Attorney Pugh waived his original

claims of plea counsel’s ineffectiveness that were raised in the original pro se

PCRA petition, and in failing to request an evidentiary hearing. In addition,

Peralta again requested Attorney Pugh’s removal as PCRA counsel.2 There is

no indication in the record that this letter was forwarded to Attorney Pugh.

       In a letter to the PCRA court dated December 15, 2015, a copy of which

was sent to Peralta and the Commonwealth, Attorney Pugh addressed the two

“new” ineffectiveness claims involving appellate and plea counsel that Peralta

wished to raise and explained why they were without merit. In concluding,

Attorney Pugh informed the court that he “can find no grounds to further

amend [Peralta’s] Amended PCRA, nor to file anything else, as a consequence

of his most recent pro se petition.”           Letter, 12/15/15, at 1-2.   After this

correspondence, a conflict of interest arose in the Lancaster Court of Common

Pleas due to Peralta’s plea counsel being elected to the bench. Because of

this conflict, [Peralta’s] case was transferred to the Montgomery County Court

of Common Pleas.




____________________________________________


2 Peralta also addressed the purported illegality of his sentence, and requested
that his second PCRA petition to be incorporated in his response.


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       On January 27, 2016, Peralta filed a “Follow Up on the Objections to the

907 Notice filed 9/9/15.” In this document, he once again reminded the PCRA

court that he had previously raised Attorney Pugh’s ineffectiveness for

abandoning the claims of plea counsel’s ineffectiveness that he had raised in

his original pro se PCRA petition.         In closing, Peralta requested “that new

counsel be appointed to present all issues raised in [my] initial PCRA and [my]

objections to Rule 907 notice.” Follow Up, 1/27/16, at 2.

       On March 13, 2017, the Honorable Arthur R. Tilson, Senior Judge,

entered the following order:

             After a review of the record, none of the claims put forth
          by [Peralta] contain merit. Therefore, [Peralta’s] PCRA
          Petition is dismissed without a hearing for the reasons
          stated by the Court in the 907 Notice dated [September 9,
          2015]. If [Peralta] intends to appeal this dismissal to the
          Superior Court, he must do so pro se or with privately
          retained counsel, and he must do so within thirty (30) days
          of this Order.

Order, 3/13/17, at 2.       Referencing the above order, Attorney Pugh filed a

motion to withdraw as counsel on March 18, 2017. The PCRA court granted

Attorney Pugh’s motion on March 27, 2017.3             This timely, pro se appeal

follows. Both Peralta and the PCRA court have complied with Pa.R.A.P. 1925.

       Within his pro se brief, Peralta raises two issues, including a claim that

the PCRA Court violated Pa.R.Crim.P. 904(C) by allowing Attorney Pugh to

____________________________________________


3The certified record also includes an April 5, 2017, praecipe filed by Attorney
Pugh to withdraw his appearance as Peralta’s attorney.


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withdraw. We agree. Given the above summation of the procedural history

of this case, Peralta has effectively been denied his rule-based right to counsel

throughout the litigation of his PCRA petition and on appeal. See Pa.R.Crim.P.

904(C) (stating that, “when an unrepresented defendant satisfies 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.”) See also Commonwealth v. Smith, 121

A.3d 1049, 1053 (Pa. Super. 2015) (explaining that, “[t]he rule based right

to counsel and to effective assistance of counsel extends throughout the post-

conviction proceedings, including any appeal from the disposition of the PCRA

petition”) (citations omitted). Moreover, it is well-settled that “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.” Commonwealth v. Willis, 29 A.3d 393, 397

(Pa. Super. 2011) (citations omitted).

      Here, although as early as September 2015 Attorney Pugh informed

Peralta that he would be filing a motion to withdraw pursuant to the

“Turner/Friend” line of cases, he never did so.       See Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc). Attorney Pugh’s December 15, 2015 letter

to the PCRA court, which did not address Peralta’s claim regarding Pugh’s

ineffectiveness for abandoning his claims of plea counsel’s ineffectiveness,

clearly did not satisfy the Turner/Finley requirements, see id., and nowhere

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in the letter does Attorney Pugh request to withdraw. Instead, Attorney Pugh

filed a motion to withdraw only after the PCRA court entered its March 13,

2017 order denying Peralta’s petition. In addition, Attorney Pugh never filed

an appeal on Peralta’s behalf, but rather, Peralta filed a pro se notice of appeal

as instructed in the March 13, 2017 order.

      Consequently, we are compelled to vacate the PCRA Court’s March 13,

2017 order denying Peralta’s petition, and remand for the PCRA court to

appoint new counsel to assist him in litigating the claims of plea counsel’s

ineffectiveness as originally raised by Peralta. By doing so, we express no

opinion as to the merit of these claims.

      Order vacated.       Case remanded with instructions.           Jurisdiction

relinquished.



      Judge Ott joins this Memorandum.

      President Judge Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/31/18




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