J-S58024-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS EUGENE SKARIOT,
Appellant No. 235 WDA 2014
Appeal from the PCRA Order Entered January 6, 2014
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0000584-2011
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 23, 2014
Appellant, Thomas Eugene Skariot, appeals pro se from the trial
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After
careful review, we are compelled to vacate that order and remand for the
appointment of new counsel.
entered a negotiated guilty plea on February 2, 2012, to the charge of
offense as follows:
The Affidavit of Probable Cause avers that an officer of the
Pennsylvania State Police was dispatched to a residence located
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*
Retired Senior Judge assigned to the Superior Court.
J-S58024-14
in East Bethlehem Township for a report of a burglary and
aggravated assault on January 13, 2011. He questioned the
victim, Kenneth James Axton, while he was being treated for
injuries. Axton informed the officer that he was sleeping on a
wooden baseball bat. Axton knew [] Appellant, and had received
a cell phone call from Appellant earlier that day. During the call,
res
grabbed a knife and defended himself. Axton believed that he
had stabbed [] Appellant. During the fight, Appellant obtained
the knife from the victim, and Appellant used it to cut the hands
of Axton. The arresting officer observed multiple lacerations and
PCRA Court Opinion (PCO), 4/4/14, at 1-2 (citations to the record omitted).
On the same day Appellant pled guilty to aggravated assault, he was
sentenc
the Recidivism Risk Reduction Incentive (RRRI) program. Appellant did not
file post-sentence motions or a direct appeal.
However, on October 5, 2012, Appellant filed a pro se PCRA petition
presenting twenty claims, most of which involved allegations of ineffective
assistance of trial counsel. Counsel was appointed, but rather than file an
amended PCRA petition, c -
letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998),
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). On
filed
Appellant filed a timely pro se response on November 1, 2013, averring that
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his PCRA counsel was ineffective for filing an inadequate Turner/Finley no-
merit letter.
On January 6, 2014, the PCRA court issued an order dismissing
can occur when inmates mail documents from
PCO at 2 n.3 (citing Commonwealth v. Cooper, 710 A.2d 76, 78 (Pa.
filed by prisoners proceeding pro se
omitted)). While the PCRA court did not order Appellant to file a Pa.R.A.P.
1925(b) statement, it filed a Rule 1925(a) opinion on April 4, 2014.
On appeal, Appellant raises the following four questions for our review:
1.) Was trial counsel ineffective, and [did he] demonstrate an
abandonment of Appellant by failing to raise a prima facie case,
acquire discovery, and by forcing a plea of guilty, and [was]
PCRA counsel ineffective for failing to fully review the case and
based on facts?
2.) Was the plea of guilty coerced by counsel to cover up the
abandonment of Appellant?
3.) Is Appellant factually innocent of the charge of aggravated
assault?
4.) Was the trial court biased, and [did it] commit misconduct
when a pre-formed judgement [sic] about the case was
commented upon by the trial judge?
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1
or denial of post-conviction relief is limited to examining whether the lower
Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.
1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa.
1995)).
PCRA attorney rendered ineffective representation.
[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable
constitutionally adequate, and counsel will only be deemed
ineffective upon a sufficient showing by the petitioner. To obtain
was deficient and that the deficiency prejudiced the petitioner. A
there is a reasonable probability that,
unprofessional errors, the result of the proceeding would have
posits that: (1) the underlying legal issue has arguable merit;
ble basis; and
omission.
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1
We note that the Commonwealth has not filed a brief in this case.
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Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations
omitted).
W
Appellant is entitled to competent and diligent
Commonwealth v.
Perry, 959 A.2d 932, 936 (Pa. Super. 2008) (citations omitted). Appellant
Turner/Finley no-
-12.
of the reco
2
Id.
In Turner
for the withdrawal of court-appointed counsel in collateral attacks on
criminal convictions[.] Turner, 544 A.2d at 927. The traditional
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2
Appellant
his timely-
dismiss. Thus, his claims are preserved for our review. See
Commonwealth v. Pitts, 981 A.2d 875, 879 (Pa. 2009) (indicating that a
petition to withdraw); Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.
Super. 2014) (concluding that under Pennsylvania Supreme Court
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requirements for proper withdrawal of PCRA counsel, originally set forth in
Finley, were updated by this Court in Commonwealth v. Friend, 896 A.2d
607 (Pa. Super. 2006), abrogated by Commonwealth v. Pitts, 981 A.2d
875 (Pa. 2009), which provides:
(1) As part of an application to withdraw as counsel, PCRA
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-
the petitioner wishes to have reviewed, and detail the nature
and extent of counsel's review of the merits of each of those
claims[;]
-
explanation of why the petitioner's issues are meritless[;]
4) PCRA counsel must contemporaneously forward to the
petitioner a copy of the application to withdraw, which must
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statement advising the PCRA petitioner that, in the event the
trial court grants the application of counsel to withdraw, the
petitioner has the right to proceed pro se, or with the assistance
of privately retained counsel;
5) the court must conduct its own independent review of the
record in the light of the PCRA petition and the issues set forth
therein, as well as of the contents of the petition of PCRA
counsel to withdraw; and
6) the court must agree with counsel that the petition is
meritless.
Friend
petitioner determines that the issues raised under
and the PC[R]A court concurs, counsel will be permitted to withdraw and the
petitioner may proceed on his own or with the aid of private counsel to
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Finley, 550
A.2d at 215.
Here, it is apparent from our review of the record that in PCRA
Turner/Finley letter, she failed to address all of the issues raised
by Appellant in his pro se PCRA petition. In that petition, Appellant raised
seventeen claims of trial
constitutional rights were violated during the investigation in this case; an
allegation that the Commonwealth withheld exculpatory evidence in violation
of Brady v. Maryland, 373 U.S. 83 (1963); and a claim that the trial judge
Turner/Finley no-merit letter, she did not set forth any of these specific
PCRA petition] that he is eligible for relief due to a violation of the
Constitution or laws, ineffective assistance of counsel, a plea of guilty
unlawfully induced, and the unavailability at the time of trial of exculpatory
at 2 (unnumbered pages). Counsel
then stated:
To establish that a guilty plea was unlawfully induced as
the result of ineffective assistance of counsel, the defendant
the guilty plea. The transcripts of the [p]lea and sentencing
proceedings held on February 7, 2012[,] show the presiding
Judge formally asked [Appellant] on the record if he had a
chance to review matters with his attorney and if [Appellant]
lanation of his rights to
which [Appellant] replied in the affirmative. The [g]uilty [p]lea
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plea of guilty on the charge of Aggravated Assault (F2) and
represents that I do this knowingly,
His attorney was present at all times.
Id. (citations omitted). Counsel closed her no-merit letter by noting that
uld, or even might, entitle
Id.
individual trial counsel ineffectiveness claims were sufficient, she omitted
any discussion of his other three issues. Thus, we agree with Appellant that
-merit letter was inadequate in this regard and, as such,
counsel should not have been permitted to withdraw. See Friend, 896 A.2d
at 615; Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)
Turner/Finley, the court will not reach the merits of the underlying claims
omitted).
-merit
pro se petition, he averred that his trial
counsel coerced him into entering a guilty plea in the moments before trial
Pro Se PCRA Petition,
10/5/12, at 10 (page unnumbered). Appellant also asserted that he
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repeatedly told his trial counsel that he was innocent, yet counsel
Id. In essence, Appellant
argued that his guilty plea was involuntary, unknowing, and/or unintelligent
legal advice.
Initially, we note that it is impossible on this record to verify - or dispel
- prior to his pleading
guilty. Furthermore, in concluding that this claim is meritless, both PCRA
the guilty plea colloquy. See PCO at 4-5. That colloquy amounted to the
following:
The Court: Have you had a chance to review matters with [your
trial counsel]?
[Appellant]: Yes.
The Court: Are you satisfied with his explanation of those rights?
[Appellant]: Yes.
N.T. Guilty Plea, 2/7/12, at 2. The court then discussed the terms of
App
to the agg [sic] assault?
[Appellant]: Yes, sir.
The Court: So ordered. Court will make a recommendation of
RRRI, which means if you com
to be released 9 months early. Any questions, [Appellant]?
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[Appellant]: No.
Id. at 3.
Notably, at no point during this proceeding was Appellant asked if he
understood (1) the nature of the charge to which he was pleading guilty; (2)
the factual basis underlying that charge; (3) that he has the right to proceed
to a jury trial; (4) that he is presumed innocent until found guilty; (5) the
permissible range of sentences and/or fines for the offenses charged; or (6)
that the judge was not bound by the terms of any plea agreement tendered
unless the judge accepted such agreement. See Cmnt. to Pa.R.Crim.P. 590
(indicating the minimum information the judge should elicit from a
defendant pleading guilty). Based on the scant colloquy conducted in this
case, we cannot agree with PCRA counsel and the court that the colloquy
into pleading guilty by his trial counsel.3
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3
a single page document, which states at
Written Guilty Plea, 3/12/13. The document then contains a printed line
Id. Appellant dated and signed this form, as did his counsel.
Clearly, the written plea colloquy does not verify that Appellant understood
any of the six factors set forth above. Thus, we do not agree with PCRA
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For these reasons, we are constrained to c
Turner/Finley no-merit letter was inadequate, and the PCRA court erred by
PCRA counsel. Additionally, while we do not opine on whether Appellant will
be able to prove he is entitled to post-conviction relief based on the trial
counsel ineffectiveness claim discussed herein, that issue at least possesses
arguable merit warranting an evidentiary hearing.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2014
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