J-S43001-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
ROBERT LYNN TORRES
Appellant No. 167 WDA 2017
Appeal from the PCRA Order entered December 23, 2016
In the Court of Common Pleas of Beaver County
Criminal Division at No: CP-04-CR-0002219-2007
BEFORE: STABILE, DUBOW, and NICHOLS, JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 31, 2018
Appellant, Robert Lynn Torres, appeals from the December 23, 2016
order entered in the Court of Common Pleas of Beaver County, dismissing his
petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§9541-9546. His attorney also seeks to withdraw as counsel.
For the reasons that follow, we deny counsel’s request to withdraw and we
affirm the order dismissing Appellant’s PCRA petition.
In its Rule 907 notice of intent to dismiss Appellant’s petition, the PCRA
court explained that Appellant entered a guilty plea on April 7, 2008 to theft
by unlawful taking. He was sentenced on September 10, 2008 to five years’
probation, consecutive to sentences imposed in unrelated cases. On January
27, 2014, Appellant stipulated to a violation of his probation and agreed to a
sentence of 21 to 48 months in a state correctional institution, with credit for
J-S43001-18
time served totaling 235 days. More than two years later, on April 29, 2016,
Appellant filed a “Motion for Credit for Time Served.” On September 26, 2016,
appointed counsel filed a PCRA petition on behalf of Appellant, incorporating
Appellant’s motion and noting amendments to that motion were not
necessary. Rule 907 Notice, 10/11/16, at 1-2.1
In its Rule 907 Notice, the PCRA court recognized that “[a] challenge to
the trial court’s failure to award credit for time spent in custody prior to
sentencing involves the legality of sentence and is cognizable under the
PCRA.” Id. at 2 (quoting Commonwealth v. Fowler, 930 A.2d 586, 595
(Pa. Super. 2007)). The court explained that Appellant’s judgment of
sentence was final on February 26, 2014, thirty days after imposition of his
agreed-upon sentence. Because Appellant did not file post-sentence motions
or a direct appeal, he had until February 26, 2015 to file a timely PCRA
petition. Id. (citing 42 Pa.C.S.A. § 9545(b)). Appellant did not file his petition
until April 29, 2016. Therefore, the petition was untimely, depriving the PCRA
court of jurisdiction over Appellant’s claims. Id. at 2-3 (citing, inter alia,
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (while legality of
sentence is always subject to review under the PCRA, claims must first satisfy
the PCRA’s timeliness requirements or an exception thereto)).
____________________________________________
1The PCRA court titled its Rule 907 notice of intent to dismiss a “Preliminary
Order and Notice of Court.” To avoid confusion, we refer to it as the court’s
“Rule 907 Notice.”
-2-
J-S43001-18
By order of December 23, 2016, the PCRA court dismissed Appellant’s
petition for the reasons set forth in the Rule 907 Notice. Appellant filed a
timely pro se notice of appeal and a statement of matters complained of on
appeal in accordance with Pa.R.A.P. 1925(b). On February 10, 2017, the PCRA
court issued its Rule 1925(a) opinion, reiterating that Appellant’s petition was
untimely, depriving the court of jurisdiction to consider his requested relief.
The court further noted that Appellant’s petition lacked merit in any event
because Appellant’s incarceration was unrelated to the present case. Rule
1925(a) Opinion, 2/13/17 at 1-2.
On February 22, 2017, Appellant filed a pro se application for relief with
this Court, styled “Application for Relief: Request That Appellant Be Released
Forthwith, Entitled ‘Response to Rule 1925 Opinion.’” In an order of the same
date, recognizing the lower court docket indicated Appellant was represented
by William M. Braslawsce, Esquire, this Court directed the prothonotary to
enter counsel’s appearance in this Court and forward Appellant’s application
for relief to him.
The March 15, 2017 briefing schedule issued by this Court advised
Attorney Braslawsce, inter alia, that Appellant’s brief would be due on April
24, 2017 and that the trial court opinion must be appended to the brief. On
May 24, 2017, because Attorney Braslawsce had “failed to file a brief on behalf
of appellant despite being so ordered,” we remanded to the PCRA court “for a
determination as to whether counsel has abandoned appellant and to take
-3-
J-S43001-18
further action as required to protect appellant’s rights.” Order 5/24/17, at 1.
The order instructed the PCRA court to notify this Court in writing within thirty
days of all findings and actions taken. Id.
On June 28, 2017, Attorney Braslawsce filed a “Supplement to
[Appellant’s] Application for Relief: Request that Appellant Be Released
Forthwith, Entitled ‘Response to Rule 1925 Opinion.’” In recognition of this
Court’s appointment of counsel to represent Appellant and directive “to review
and amend [Appellant’s] Pro Se Motion if necessary,” Attorney Braslawsce
explained that he had reviewed Appellant’s motion and determined “it appears
as though the issues have been addressed and it does not need to be
amended.” Therefore, “Counsel herby (sic) incorporates [Appellant’s] Pro Se
Motion for Relief and attaches the same herein (Exhibit “A”).” Supplement,
6/28/17, at 1-2.
By order dated June 28, 2017 and entered June 30, 2017, this Court
denied Appellant’s application for relief and advised that Appellant “may argue
all preserved issues in his appellate brief.” Order, 6/30/17, at 1. The order
advised that a briefing schedule would be set once the certified record was
returned to this Court, “as the record was remanded on May 24, 2017, to
determine whether counsel had abandoned Appellant as counsel failed to file
a brief in this Court.” Id.
The certified record was returned to this Court on June 29, 2017 and
included an order from the PCRA court dated June 28, 2017. The order
-4-
J-S43001-18
explained that the court held a conference on June 13, 2017 to determine
Attorney Braslawsce’s status in the case.
At said conference, Attorney William Braslawsce advised the court
that he believed that he had filed a brief and that his apparent
failure to do so was likely the result of a clerical oversight.
Attorney Braslawsce further advised that he would see that a brief
was filed and provide a copy to this court. A copy of what was
provided to this court is attached hereto. Therefore, it is hereby
ordered that Attorney Braslawsce shall continue as counsel of
record, to represent the Appellant in the subject appeal and that
Attorney Braslawsce shall file a brief with the Superior Court of
Pennsylvania forthwith.
PCRA Court Order, 6/28/17, at 1 (some capitalization omitted). The “brief”
attached to the order was the same “Supplement to Appellant’s Application
for Relief” filed with this Court by Attorney Braslawsce on June 28, 2017.
This Court set a new briefing schedule with August 8, 2017 as the
deadline for Appellant to file his brief. By order of September 8, 2017, in light
of Attorney Braslawsce’s failure to file a brief as ordered, we again remanded
to the PCRA court to determine whether counsel had abandoned Appellant.
On September 27, 2017, the PCRA court advised:
On September 26, 2017 the court held a conference to determine
counsel’s status in the case. At said conference, Attorney William
Braslawsce advised the court that he had filed a brief with the
Superior Court and presented proof of mailing the same. Attorney
Braslawsce further provided a courtesy copy of the brief to this
court, which is attached hereto.
Therefore, it is hereby ordered that Attorney Braslawsce shall
continue as counsel of record, to represent the Appellant in the
subject appeal and that Attorney Braslawsce [shall] ensure that
the brief is properly filed and docketed with the Superior Court of
Pennsylvania.
-5-
J-S43001-18
PCRA Court Order, 9/27/17, at 1 (some capitalization omitted).
On October 17, 2017, Attorney Braslawsce filed a brief on behalf of
Appellant accompanied by a certificate of service dated October 16, 2017,
reflecting service on Appellant, on the District Attorney’s Office, and on the
PCRA court. The brief, which Attorney Braslawsce suggests is an Anders
brief,2 is the same brief attached to the PCRA court’s September 27, 2017
order, except that the certificate of service accompanying that document
reflects a September 26, 2017 date of service, and a copy of the PCRA court’s
September 27, 2017 order is attached as an exhibit.3
____________________________________________
2 Anders v. California, 386 U.S. 738 (1967). Counsel correctly suggests
that Anders is implicated in attempts by counsel to withdraw in a case on
direct appeal. However, the instant appeal involves an appeal from dismissal
of a PCRA petition. Regardless, as this Court recognized in Commonwealth
v. Widgins, 29 A.3d 816 (Pa. Super. 2011):
Counsel filed a brief pursuant to Anders[,] apparently in the
mistaken belief that an Anders brief is required where counsel
seeks to withdraw on appeal from the denial of PCRA relief. A
Turner/Finley no-merit letter, however, is the appropriate filing.
See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (Pa.
1988); Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d
213 (Pa. Super. 1988) (en banc). Because an Anders brief
provides greater protection to a defendant, this Court may accept
an Anders brief in lieu of a Turner/Finley letter.
Commonwealth v. Fusselman, [] 866 A.2d 1109, 1111 n.3 (Pa.
Super. 2004).
Id. at 817 n.2.
3 While we will not dwell on the deficiencies in the form of Appellant’s brief,
we do note that the brief does not include the order appealed from, a summary
of argument, a statement of errors complained of, or a copy of the PCRA
-6-
J-S43001-18
By order of November 6, 2017, this Court recognized that Attorney
Braslawsce was seeking to withdraw on the basis of frivolity and had filed a
Turner/Finley brief. However, because Attorney Braslawsce failed to file a
petition to withdraw and failed to file with this Court the notice of rights letter
required to be provided to Appellant, we directed counsel to file both the
petition to withdraw and the required notice of rights letter within ten days of
the order. Order, 11/6/17, at 1-2.
By letter of December 6, 2017, Attorney Braslawsce provided this Court
a copy of his September 16, 2017 letter addressed to Appellant, indicating
that counsel was enclosing a copy of his Anders brief and petition to
withdraw, and advising Appellant of his right to retain counsel or proceed pro
se to raise any points he deems worthy of bringing to this Court’s attention
“in addition to the points [he] raised in the Anders brief.” Letter, 9/26/17, at
1.
By order of May 7, 2018, this Court acknowledged receipt of Attorney
Braslawsce’s December 6, 2017 correspondence, which made reference his
September 26, 2017 letter to Appellant, but noted that counsel had not yet
complied with the November 6, 2017 order directing him to file a petition to
____________________________________________
court’s Rule 1925(a) opinion, in violation of Pa.R.A.P. 2111(a)(2), (a)(6),
(a)(11), (a)(10), and (b), respectively. In addition, the cover of the brief does
not include any reference to the date of the order appealed from, as required
by Pa.R.A.P. 2172(a)(5).
-7-
J-S43001-18
withdraw contemporaneously with a Turner/Finley brief. The order detailed
the directives to Attorney Braslawsce that required,
in summary, [that] counsel is to comply with the proper procedure
as set forth by case law in fourteen (14) days from the date of this
Order by filing with this Court a petition to withdraw as counsel
and serving a copy of the petition to withdraw as counsel, with a
new notice of rights letter, and re-serve a copy of the “no merit”
Brief for Appellant upon [Appellant], and file proof of such service
with this Court.
Order, 5/7/18, at 2 (citations omitted).
On May 14, 2018, Attorney Braslawsce filed a petition to withdraw, the
text of which stated in its entirety, “For the reasons set forth in the
accompanying Anders brief, it is respectfully requested that this Court permit
counsel’s withdrawal.” Petition to Withdraw as Counsel, 5/14/18, at 1. The
accompanying certificate reflects service on Appellant. Attorney Braslawsce
did not file any additional documentation with this Court to reflect that he
served either a new notice of rights letter or the “no-merit” brief on Appellant.
In his brief, Appellant presents one issue for our consideration:
I. Whether there are any issues of arguable merit that could
be raised on direct appeal presently before this Court?
Appellant’s Brief at 6.
Before we consider Appellant’s issue, we must first consider counsel’s
request to withdraw. See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.
Super. 2005) (“When faced with a purported Anders brief, this Court may not
review the merits of the underlying issues without first passing on the request
to withdraw.”).
-8-
J-S43001-18
The Turner/Finley procedure requires a “no-merit” letter by PCRA
counsel detailing the nature and extent of his review, listing each issue the
petitioner wished to have reviewed and explaining why each issue was
meritless. The PCRA court must then conduct its own independent review of
the record and agree with counsel that the petition was meritless. Widgins,
29 A.3d at 818 (additional citations omitted).
Counsel’s petition and no-merit letter do not comply with the
requirements set forth above. Counsel has not detailed the nature and extent
of his review, simply referring to his “thorough review of the record,” and then
making reference to two letters. His no-merit letter is silent as to any issues
Appellant wished to have reviewed or why such issues were meritless.
Further, and perhaps most importantly, Attorney Braslawsce failed to comply
with this Court’s orders. In particular, Attorney Braslawsce failed to comply
with our most recent order dated May 7, 2018 that spelled out in detail, with
citations to case law, the instructions counsel was to follow. Therefore, we
deny counsel’s request to withdraw.
Rather than remand (again), we shall move on to the issue presented
in Appellant’s brief. However, we must first determine whether this Court has
jurisdiction to consider the merits of Appellant’s claim. As noted above,
Appellant’s judgment of sentence was final on February 26, 2014. Because
he did not file post-sentence motions or a direct appeal, he had until February
26, 2015 to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b). His
-9-
J-S43001-18
petition was filed on April 29, 2016, more than a year after the deadline. He
neither asserted nor proved any exception to the PCRA’s time bar. Therefore,
this Court, as the PCRA court below, lacks jurisdiction over any claims
Appellant has asserted. See Fahy, supra (while legality of sentence is always
subject to review under the PCRA, claims must first satisfy the PCRA’s
timeliness requirements or an exception thereto).
Counsel’s petition to withdraw denied. Order dismissing Appellant’s
PCRA petition affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2018
- 10 -