J-A31042-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ERIBERTO SANTANA,
Appellant No. 189 MDA 2015
Appeal from the PCRA Order January 6, 2015
in the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0005215-2011
BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JANUARY 06, 2016
Appellant, Eriberto Santana, appeals pro se from the order denying his
first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. We vacate and remand.
On January 9, 2013, Appellant entered a negotiated guilty plea to two
counts of possession with intent to deliver a controlled substance (PWID). 1
The charges arose from Appellant’s sales of heroin to undercover police
officers. The same day, pursuant to the agreement, the trial court
sentenced Appellant to a term of incarceration of not less than five nor more
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*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
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than ten years’ incarceration. No post-sentence motions or direct appeal
were filed.
On October 30, 2013, Appellant filed a timely pro se first PCRA
petition raising issues of trial counsel’s ineffectiveness, and challenging his
guilty plea and the discretionary aspects of sentence. Because Appellant
stated in the petition that he did not want representation during the PCRA
proceedings, the court held a Grazier2 hearing on January 2, 2014. On
January 8, 2014, the court found that Appellant made a knowing, intelligent,
and voluntary waiver of his right to counsel, and granted his request to
proceed pro se. On June 17, 2014, Appellant filed a pro se amended PCRA
petition in which, in addition to raising a new legality of sentence issue and
incorporating his previously filed PCRA claims, he requested the appointment
of PCRA counsel. On July 29, 2014, the PCRA court appointed counsel to
represent Appellant, and directed him to file either an amended PCRA
petition detailing Appellant’s eligibility for PCRA relief, or a Turner/Finley3
no-merit letter.
On November 24, 2014, counsel filed a no-merit letter requesting to
withdraw from representation on the basis that Appellant’s PCRA petition
was untimely and failed to plead and prove a timeliness exception. (See
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2
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Turner/Finley No-Merit Letter, 11/24/14, at 2-9). On December 10, 2014,
the court filed a Rule 907 notice.4 Appellant did not respond, and, on
January 6, 2015, the court dismissed the PCRA petition and granted
counsel’s petition to withdraw. Appellant timely appealed pro se.5
Appellant raises two questions for this Court’s review:
I. Whether the [PCRA] court erred in finding that Appellant’s
guilty plea was entered voluntarily, knowing[ly], and intelligently
in light of the statutory interpretation in Commonwealth v.
Hopkins, [117 A.3d 247 (Pa. 2015),] premised upon Alleyne v.
United States, 133 S.Ct. 2151 (2013)?
II. Whether Appellant’s sentence is illegal and subject to
correction, mandated by PCRA provisions as such challenge was
asserted in a timely PCRA?
(Appellant’s Brief, at 3) (most capitalization omitted).
“Our standard of review for an order denying post-conviction relief is
whether the record supports the PCRA court’s determination and whether
the PCRA court’s determination is free of legal error.” Commonwealth v.
Perzel, 116 A.3d 670, 671 (Pa. Super. 2015) (citation omitted).
Before we reach the merits of Appellant’s issues, we must consider
whether Appellant “was effectively deprived of his right to counsel on . . . his
first PCRA petition.” Commonwealth v. Karanicolas, 836 A.2d 940, 945
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4
See Pa.R.Crim.P. 907(1).
5
Appellant filed a timely statement of errors raised on appeal pursuant to
the court’s order on February 23, 2015. See Pa.R.A.P. 1925(b). The court
filed an opinion on March 10, 2015. See Pa.R.A.P. 1925(a).
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(Pa. Super. 2003) (citation omitted); see also Commonwealth v. Stossel,
17 A.3d 1286, 1290 (Pa. Super. 2015) (holding, “where an indigent, first-
time PCRA petitioner was denied his right to counsel . . . this Court is
required to raise this error sua sponte and remand for the PCRA court to
correct that mistake.”).
Pennsylvania courts have recognized expressly that every
post-conviction litigant is entitled to at least one meaningful
opportunity to have . . . issues reviewed, at least in the context
of an ineffectiveness claim. This Court has admonished,
accordingly, that the point in time at which a trial court may
determine that a PCRA petitioner’s claims are frivolous or
meritless is after the petitioner has been afforded a full and fair
opportunity to present those claims. Our Supreme Court has
recognized that such an opportunity is best assured where the
petitioner is provided representation by competent counsel
whose ability to frame the issues in a legally meaningful fashion
insures the [PCRA] court that all relevant considerations will be
brought to its attention. The [S]upreme [C]ourt has mandated
accordingly, that counsel be appointed in every case in which a
defendant has filed a motion for post-conviction collateral review
for the first time and is unable to afford counsel. . . .
* * *
Moreover, this rule [has not been] limited to the mere
naming of an attorney to represent an accused, but also
envisions that counsel so appointed shall have the opportunity
and in fact discharge[s] the responsibilities required by his
representation. . . .
* * *
Once appointment has been made, counsel may seek to
withdraw, after a thorough review of the record has been
made, where non-frivolous issues justifying the pursuit of post-
conviction collateral relief are lacking. Counsel may not,
however, accept appointment, thereby engendering the reliance
of both his client and the court, without undertaking of
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record either to advance his client’s claims or certify their
lack of merit.
In addressing the petitioner’s right to counsel under the
precursor to the PCRA, we admonished that when appointed
counsel fails to amend an inarticulately drafted pro se [post
conviction] petition, or fails otherwise to participate
meaningfully, this [C]ourt will conclude that the proceedings
were, for all practical purposes, uncounseled and in violation of
the representation requirement. . . . Both this Court and our
Supreme Court have recognized that a post[-]conviction petition
is effectively uncounseled under a variety of circumstances
whenever omissions of record demonstrate that counsel’s
inaction deprived the petitioner the opportunity of legally trained
counsel to advance his position in acceptable legal terms.
Karanicolas, supra at 945-46 (citations, quotation marks, and some
brackets omitted) (emphases in original).
Instantly, appointed counsel filed a Turner/Finley no-merit letter.
Before an attorney can be permitted to withdraw from
representing a petitioner under the PCRA, Pennsylvania law
requires counsel to file and obtain approval of a no-merit letter
pursuant to the mandates of Turner/Finley. The no-merit letter
should include a description of the nature and extent of the
attorney’s review, a list of the issues that the PCRA petitioner
wishes to have reviewed, and an explanation of why the issues
lack merit. Substantial compliance with these requirements will
satisfy the criteria.
Id. at 947 (citations, quotation marks, and emphases omitted).
Here, PCRA counsel’s petition for leave to withdraw was based solely
on counsel’s mistaken conclusion that Appellant’s current PCRA petition was
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untimely filed.6 (See Turner/Finley Letter, 11/24/14, at 2-9). Hence,
counsel failed to identify Appellant’s issues or explain why they lacked merit,
in compliance with Turner/Finley. (See id.); see also Commonwealth v.
Glover, 738 A.2d 460, 464 (Pa. Super. 1999) (holding no-merit letter must
identify each issue petitioner wishes to raise, and explain whether specific
claim has been previously litigated, waived for failure to raise it on direct
appeal, or frivolous for some other reason). Although counsel did note
Appellant’s Alleyne issue, (see Turner/Finley Letter, at 5-9; see also
Amended PCRA Petition, 6/17/14, at 2), his analysis was premised on his
misconception that Appellant’s PCRA petition was untimely, and considered
only whether Alleyne creates a PCRA timeliness exception. (See
Turner/Finley Letter, at 5-9). Counsel’s Turner/Finley letter neither
advanced Appellant’s claims nor certified their lack of merit. See
Karanicolas, supra at 946.
Under these circumstances, we cannot conclude that the record
reveals any “meaningful participation” by PCRA counsel. Id. at 947
(remanding for appointment of new counsel where appointed counsel
incorrectly determined that PCRA petition was untimely and his
Turner/Finley letter did not evidence “meaningful participation”). Thus,
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6
Appellant was sentenced on January 9, 2013. Because he did not file a
direct appeal his judgment of sentence became final on February 8, 2013.
See 42 Pa.C.S.A. § 9545(b)(3). Therefore, his October 30, 2013 PCRA
petition was timely. See 42 Pa.C.S.A. § 9545(b)(1).
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Appellant’s first PCRA petition proceeding was for all practical purposes
uncounseled, depriving him of “the opportunity of legally trained counsel to
advance his position in acceptable legal terms . . . .” Karanicolas, supra at
946 (citation and internal quotation marks omitted).
Hence, we are constrained to conclude that the PCRA court erred in
granting counsel’s petition to withdraw and in dismissing Appellant’s PCRA
petition. See Perzel, supra at 671. We vacate the court’s order and
remand for the appointment of new counsel. Newly appointed counsel may
either proceed to develop and advocate meritorious claims or seek to
withdraw, “after a thorough review of the record has been made, where non-
frivolous issues justifying the pursuit of post-conviction collateral relief are
lacking.” Karanicolas, supra at 946-47.
Order vacated. Case remanded for proceedings consistent with this
decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2016
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