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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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