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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TRACY DEL HANNA :
:
Appellant : No. 666 MDA 2019
Appeal from the PCRA Order Entered November 22, 2017
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0007808-2013
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 23, 2019
Tracy Del Hanna appeals nunc pro tunc from the order that dismissed
his second petition filed pursuant to the Post Conviction Relief Act (“PCRA”).
Also before us is an application by Kristopher G. Accardi, Esquire to withdraw
as counsel pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
We vacate the PCRA court’s order dismissing Appellant’s second PCRA petition,
deny counsel’s application to withdraw, and remand for further proceedings.
On September 28, 2013, Appellant and Timothy Morton fought over an
electric bill. During the course of the altercation, Appellant stabbed Morton
with a knife. Morton was transported by ambulance to the emergency room
and treated for a five and one-half inch deep stab wound to the buttocks.
After a jury trial, Appellant was convicted of two counts of aggravated assault
and one count each of simple assault and possession of marijuana. On
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September 24, 2014, the trial court imposed an aggregate sentence of seven
and one-half to fifteen years of incarceration. This Court affirmed Appellant’s
judgment of sentence. See Commonwealth v. Hanna, 134 A.3d 94
(Pa.Super. 2015) (unpublished memorandum). Appellant did not file a
petition for allowance of appeal to our Supreme Court. Therefore, his
judgment of sentence became final in November of 2015.
Appellant filed a timely pro se PCRA petition on February 25, 2016. In
his petition, Appellant alleged that trial counsel was ineffective for directing
him to reject a plea offer on the grounds that the Commonwealth could not
prove serious bodily injury since the injury was below the waist. Counsel was
appointed, but due to a conflict, substitute conflict counsel was appointed. On
August 22, 2016, the PCRA court held a hearing, at the conclusion of which it
dismissed the PCRA petition on its merits.
On August 24, 2016 and September 30, 2016, Appellant attempted to
file pro se notices of appeal. Both were rejected, and forwarded to counsel,
since Appellant was still represented by conflict counsel. On February 16,
2017, Appellant received a letter from conflict counsel stating that he did not
know that Appellant wished to file an appeal, the time for filing one had lapsed,
and instructing Appellant to file a PCRA petition seeking the reinstatement of
his appellate rights due to attorney abandonment.
Five months later, Appellant filed his second pro se PCRA petition. In
the petition, Appellant challenged conflict counsel’s effectiveness for failing to
file a notice of appeal following the dismissal of his first PCRA petition.
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Appellant attached the February 16, 2017 letter from conflict counsel as an
exhibit. The PCRA court appointed counsel and ordered him to file an
amended PCRA petition, which he did. The amended PCRA petition reiterated
the argument Appellant had already made in his pro se petition.
After new counsel was appointed, the Commonwealth filed a motion to
dismiss the second PCRA petition as untimely, since the petition was facially
untimely and not filed within sixty days1 of the date that it could have been
filed, so that it could have meet one of the PCRA time bar exceptions. On
November 22, 2017, the PCRA court entered an order, agreeing with the
Commonwealth’s reasoning, and dismissing Appellant’s second PCRA petition
as untimely. Appellant’s counsel filed a motion for reconsideration of the
dismissal order. On January 30, 2018, the PCRA court denied the motion.
After a breakdown, wherein Appellant’s counsel abandoned him, new counsel
was appointed and appellate rights were reinstated nunc pro tunc. Appellant
filed a timely notice of appeal nunc pro tunc, and both Appellant and the PCRA
court complied with Pa.R.A.P. 1925.
In this Court, in lieu of an advocate’s brief, counsel filed a petition to
withdraw and no-merit letter pursuant to Turner and Finley. Before we
consider the merits of the issues raised on appeal, we must determine whether
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1 As of December 24, 2018, 42 Pa.C.S. § 9545(b)(2) now provides that any
PCRA petition invoking a timeliness exception must be filed within one year of
the date the claim first could have been presented. However, this amendment
does not apply to Appellant’s case, which arose before the effective date of
the amendment.
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counsel followed the required procedure, which we have summarized as
follows.
Turner/Finley counsel must review the case zealously.
Turner/Finley counsel must then submit a “no-merit” letter to
the trial court, or brief on appeal to this Court, detailing the nature
and extent of counsel’s diligent review of the case, listing the
issues which the petitioner wants to have reviewed, explaining
why and how those issues lack merit, and requesting permission
to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
“no-merit” letter/brief; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
If counsel fails to satisfy the foregoing technical
prerequisites of Turner/Finley, the court will not reach the merits
of the underlying claims but, rather, will merely deny counsel’s
request to withdraw. Upon doing so, the court will then take
appropriate steps, such as directing counsel to file a proper
Turner/Finley request or an advocate’s brief.
However, where counsel submits a petition and no-merit
letter that do satisfy the technical demands of Turner/Finley, the
court—trial court or this Court—must then conduct its own review
of the merits of the case. If the court agrees with counsel that
the claims are without merit, the court will permit counsel to
withdraw and deny relief. By contrast, if the claims appear to
have merit, the court will deny counsel’s request and grant relief,
or at least instruct counsel to file an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007) (cleaned
up).
We are satisfied from the review of counsel’s application and no-merit
letter that counsel has complied with the technical requirements of Turner
and Finley. Counsel has detailed his review of the case and the issue
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Appellant wises to raise, and explained why that issue lacks a viable avenue
to success, albeit with sparse citation to authority. Counsel also indicates that
he sent a copy to Appellant and advised him of his immediate right to proceed
pro se or with hired counsel. Appellant has not responded to this filing.
However, upon conducting our own review of the record we uncovered an
unresolved issue which causes us to disagree with counsel’s ultimate
conclusion that the appeal likes merit.
Consistent with our well-established precedent, we find that Appellant’s
pro se notice of appeal from the denial of his first PCRA petition was timely
filed and should have been docketed and forwarded to our Court despite
Appellant’s representtion by counsel. See Commonwealth v. DiClaudio,
210 A.3d 1070, 1074 (Pa.Super. 2019); Pa.R.A.P. 902. Since the timely-filed
pro se notice of appeal was docketed in the trial court, but not forwarded to
this Court in violation of Pa.R.A.P. 902, a breakdown in the operation of the
courts occurred. See Commonwealth v. Williams, 151 A.3d 621, 624
(Pa.Super. 2016) (finding a breakdown in the operation of the courts where a
timely-filed pro se notice of appeal was docketed in the trial court, but not
forwarded to our Court because the defendant was represented by counsel).
Given this discovery, Appellant’s appeal from his first PCRA petition was
never decided and is, in fact, still pending. Therefore, the PCRA court did not
have jurisdiction to even consider, let alone dismiss, Appellant’s second PCRA
petition. Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (holding
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that “a subsequent PCRA petition cannot be filed until the resolution of review
of the pending PCRA petition by the highest state court in which review is
sought”). Accordingly, we vacate the PCRA court’s order denying Appellant’s
second PCRA petition as premature, deny counsel’s request to withdraw, and
remand to the PCRA court so that Appellant can proceed upon the timely filed
notice of appeal from the dismissal of his first PCRA petition. We
simultaneously order the York County Clerk of Courts to forward to this court
Appellant’s August 24, 2016 pro se notice of appeal.
Order vacated. Petition to withdraw denied. Case remanded with
instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/2019
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