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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS SCOTT DRASS,
Appellant No. 1030 WDA 2014
Appeal from the PCRA Order June 10, 2014
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0001007-2005
BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.
MEMORANDUM BY BOWES, J.: FILED MAY 18, 2015
Thomas Scott Drass appeals from the June 10, 2014 order dismissing
his second PCRA petition as untimely filed. We direct counsel to either file
an advocate’s brief or a petition to withdraw and no-merit brief pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc )
(“Turner/Finley”).
On January 5, 2005, Appellant arrived at his maternal grandparents’
home, and shot his grandfather, Dwayne Chamberlain, at point blank range.
Dwayne’s wife Kathryn was present and unsuccessfully attempted to
resuscitate her husband. Appellant left the home, but was arrested when he
returned a few hours later. Appellant had purchased the shotgun and
ammunition used in the shooting earlier that day. On September 25, 2006,
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Appellant pled guilty to third-degree murder, and, three days later, he was
sentenced to twenty to forty years incarceration. The sentencing court had
the benefit of a presentence report. In the ensuing direct appeal, Appellant
claimed that his sentence was excessive given “his history of mental illness
and lack of a prior criminal record.” Commonwealth v. Drass, 935 A.2d 9
(Pa.Super. 2007) (unpublished memorandum at 2). We rejected Appellant’s
challenge to the discretionary aspects of his sentence and affirmed on
August 6, 2007, id., and Appellant did not seek allowance of appeal with our
Supreme Court.
The following month, Appellant filed a timely PCRA petition, counsel
was appointed, and counsel filed an amended PCRA petition. Appellant
claimed that his guilty plea was induced by ineffective assistance of counsel,
who had been able to negotiate a guilty plea to third degree murder in the
face of the Commonwealth’s desire to pursue a first-degree murder
conviction. Plea counsel’s efforts were successful because he procured a
physiological evaluation by Dr. Joseph Antonowicz, whose report supported a
diminished capacity defense. See Trial Court Opinion, 9/8/08, at 4-5. After
an evidentiary hearing, PCRA relief was denied on September 8, 2008.
Appellant did not file an appeal from the denial of PCRA relief.
On July 24, 2013, Appellant filed a motion seeking modification of his
sentence, for appointment of counsel, and requesting permission to proceed
in forma pauperis. Appellant sought a reduction in his sentence due to his
mental health issues and lack of a prior criminal record, which he asserted
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were not revealed to the sentencing court. Appellant also claimed that he
was on drugs when he killed his grandfather and that he expected a lesser
sentence when he tendered an open guilty plea to third degree murder. The
trial court properly treated the motion for modification of sentence as a
PCRA petition and then granted Appellant the right to proceed in forma
pauperis. The PCRA court appointed counsel,1 and, over the
Commonwealth’s objection, held a hearing, which was not transcribed.
Thereafter, the PCRA court denied relief based upon the untimeliness
of the 2013 petition. This appeal followed. The issue presented is,
“Whether the Trial Court erred in dismissing the Appellant’s current PCRA
petition.” Appellant’s brief at 2. Specifically, Appellant maintains that his
guilty plea was involuntary in that he “is unable to read or write and he was
under medication which affected his mind” and that plea counsel misled him
“into believing he would not get the maximum sentence after an open plea.”
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1
We note that Pa.R.Crim.P. 904(D) provides, “On a second or subsequent
petition, when an unrepresented defendant satisfies the judge that the
defendant is unable to afford or otherwise procure counsel, and an
evidentiary hearing is required as provided in Rule 908, the judge shall
appoint counsel to represent the defendant.” Except as provided in
Pa.R.Crim.P. 907, a hearing under Pa.R.Crim.P. 908 is mandated, in
pertinent part, when “the petition for post-conviction relief or the
Commonwealth's answer, if any, raises material issues of fact.”
Pa.R.Crim.P. 908(A)(2). Under Pa.R.Crim.P. 907, the PCRA court may deny
PCRA relief without a hearing, if, after review of the pleadings, it “is satisfied
. . . that there are no genuine issues concerning any material fact and that
the defendant is not entitled to post-conviction collateral relief, and no
purpose would be served by any further proceedings[.]” Pa.R.Crim.P. Rule
907(1).
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Id. at 3. Additionally, Appellant asserts that his sentence was “too severe
given his lack of a criminal record.” Id.
While these issues are purportedly raised on appeal, counsel, in the
body of his brief, has not advocated on behalf of his client’s positions.
Counsel has maintained that this appeal is frivolous. Appellant’s brief at 6.
If counsel is attempting to withdraw, he must follow the mandates of
Turner/Finley, which outline the procedure for withdrawal in the PCRA
context.
Commonwealth v. Jackson, 965 A.2d 280 (Pa.Super. 2009) is
instructive. Therein, the defendant filed a second PCRA petition, and
counsel was appointed. After it conducted an evidentiary hearing, the PCRA
court then sua sponte dismissed counsel. The defendant filed a pro se
appeal, and we remanded for the appointment of new counsel. We observed
that, even though a second-time PCRA petition would not normally be
entitled to court-appointed counsel, once counsel is appointed, such
appointment remains “effective throughout the post-conviction collateral
proceedings, including any appeal from disposition of the petition for post-
conviction collateral relief.” Id. at 283 (quoting Pa.R.Crim.P. 904(F)(2)
(emphasis in Jackson). We held that “the PCRA court erred when it
relieved [PCRA counsel] of his representation duties before litigation of the
issue presented at the evidentiary hearing was complete,” and we remanded
for the appointment of counsel. Id. at 284 (footnote omitted).
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As it applies herein, Jackson requires an attorney to continue to
operate as counsel during litigation of the appeal from the denial of PCRA
relief. Appellant’s counsel has failed to fulfill that obligation as he abandons
his client’s interests by arguing against relief for his client. Counsel must file
an advocate’s brief or counsel may, of course, seek to withdraw. However,
the “Turner/Finley decisions provide the manner for post-conviction
counsel to withdraw from representation.” Commonwealth v. Rykard, 55
A.3d 1177, 1184 (Pa.Super. 2012). As we articulated in Rykard, id at 1184
(footnote omitted):
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. See
[Commonwealth v.] Pitts, [981 A.2d 875], 876 n.1. [Pa.
2009].
In Commonwealth v. Friend, 896 A.2d 607 (Pa.Super.
2006) abrogated in part by Pitts, supra, this Court imposed
additional requirements on counsel that closely track the
procedure for withdrawing on direct appeal. Pursuant to Friend,
counsel is required to contemporaneously serve upon his client
his 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. Though Chief Justice Castille noted in Pitts that this
Court is not authorized to craft procedural rules, the Court did
not overturn this aspect of Friend as those prerequisites did not
apply to the petitioner in Pitts. See Pitts, supra at 881
(Castille, C.J. concurring).
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In this case, if counsel is seeking to withdraw, he must petition to
withdraw, serve that application on his client, and inform Appellant that he
can proceed pro se or with retained counsel for purposes of this appeal.
Counsel’s petition to withdraw must set forth that he has independently
reviewed the record and found no meritorious issues to be raised. To
withdraw, counsel also must file a compliant no-merit brief that both sets
forth each issue that Appellant wants to raise and establishes why such issue
does not provide grounds for PCRA relief.
Record remanded. Counsel shall comply with the mandates of this
decision within sixty days of remand of the record. Jurisdiction is retained.
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