J-S05039-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
Appellee :
:
v. :
:
ROBIN DEWAYNE ROBERTS :
:
Appellant : No. 1279 WDA 2018
Appeal from the PCRA Order Entered August 13, 2018
in the Court of Common Pleas of Greene County
Criminal Division at No(s): CP-30-CR-0000297-2016
BEFORE: PANELLA, P.J., NICHOLS, J. and STRASSBURGER, J.*
JUDGMENT ORDER BY STRASSBURGER, J.: FILED APRIL 25, 2019
Robin Dewayne Roberts (Appellant) appeals from an order purportedly
entered August 13, 2018. Because no such order exists, and Appellant’s
appeal is otherwise premature, we quash this appeal.
On January 4, 2017, Appellant pleaded guilty to one count each of
involuntary deviate sexual intercourse with a child, sexual assault, and incest
of a minor, and 10 counts each of corruption of minors, indecent assault, and
endangering the welfare of a child. On May 30, 2017, Appellant was sentenced
in the aggregate to 7 to 14 years of incarceration. No direct appeal was filed.
On December 12, 2017, Appellant filed pro se a petition pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. The PCRA court
appointed Gary Graminski, Esquire, to represent Appellant. Appellant filed an
amended PCRA petition on February 13, 2018, alleging ineffectiveness of
* Retired Senior Judge assigned to the Superior Court.
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Appellant’s plea counsel. A PCRA hearing was held. On July 24, 2018, the
PCRA court entered an order stating that “[t]he parties are now on notice that
the PCRA petition will be dismissed 20 days from this date.” Order,
7/24/2018, at 3 (numbering supplied). However, the PCRA court never
entered a subsequent order dismissing the PCRA petition.
On August 27, 2018, the PCRA court docketed a letter from Appellant to
Attorney Graminski. In the letter, Appellant informed Attorney Graminski that
he planned to file pro se a notice of appeal to preserve his right to appeal, but
he wished for Attorney Graminski to represent him on appeal. Pro se Letter,
8/27/2018, at 1. On August 29, 2018, Appellant filed pro se a notice of appeal
purporting to appeal from an order entered August 13, 2018.
Subsequently, this Court ordered the PCRA court to determine the status
of Attorney Graminski’s representation. The PCRA court confirmed that
Attorney Graminski continued to represent Appellant. Both Appellant (through
Attorney Graminski) and the PCRA court complied with Pa.R.A.P. 1925.
Before we address the merits, we must determine whether we have
jurisdiction to hear this appeal. See Commonwealth v. Baio, 898 A.2d
1095, 1098 (Pa. Super. 2006) (questions regarding this Court’s jurisdiction
may be raised sua sponte). Generally, an appeal may only be taken from a
final order. See Pa.R.A.P. 341. The August 13, 2018 order from which
Appellant purports to appeal does not exist. See PCRA Court Opinion,
11/2/2018, at 1-2. The most recent PCRA court order was entered on July
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24, 2017, and it merely indicated the court’s forthcoming intent to dismiss the
PCRA petition.1 Therefore, the July 24, 2017 order does not constitute a final
order, rendering Appellant’s appeal premature.2
Based on the foregoing, we quash this appeal as prematurely filed.3
Appeal quashed. Jurisdiction relinquished.
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1 It is unclear why the PCRA court did not simply dismiss the petition. Although
the rules require a PCRA court to give advance notice of intent to dismiss a
PCRA petition without a hearing, this requirement does not exist for dismissal
orders following an evidentiary hearing. Compare Pa.R.Crim.P. 907(1)
(requiring notice of intent to dismiss to provide petitioner with opportunity to
respond in cases without a hearing) with Pa.R.Crim.P. 908(D)(1) (requiring
prompt issuance of an order denying relief following a hearing).
2 This Court may address a premature appeal when the subsequent actions of
the PCRA court fully ripen it. See Pa.R.A.P. 905 (“A notice of appeal filed after
the announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof.”). Here,
the PCRA court took no further action in this case, leaving the PCRA matter
still pending.
3 We note that Attorney Graminski filed a brief arguing that Appellant’s issues
were without merit, but he neither filed a corresponding application to
withdraw nor followed the procedures for a no-merit brief required by
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Attorney Graminski
appears to be under the mistaken belief that he cannot follow the
Turner/Finley procedure on appeal. See Appellant’s Brief at 8 (“There was
no opportunity to file a Finley letter … to address the lack of merit [of an
appeal], so this somewhat unconventional brief will honestly and plainly
address this matter.”). However, Turner/Finley applies on appeal. See
Commonwealth v. Wrecks, 931 A.2d 717, 721-22 (Pa. Super. 2007)
(explaining the Turner/Finley procedure to be used when the issues
petitioner wants to appeal have no merit). Had this appeal been timely filed,
we would have ordered Attorney Graminski to file with our court a
Turner/Finley brief and application to withdraw or an advocate’s brief. In
the event of further proceedings, Attorney Graminski shall follow the
Turner/Finley procedure if he believes Appellant’s claims have no merit.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2019
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