Com. v. Cabrera, S. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SAMUEL N. CABRERA :
:
Appellant : No. 2397 EDA 2019
Appeal from the PCRA Order Entered March 4, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009793-2013
BEFORE: SHOGAN, J., KING, J., and COLINS, J.*
JUDGMENT ORDER BY SHOGAN, J.: FILED: MAY 14, 2021
Appellant, Samuel N. Cabrera, appeals pro se from the March 4, 2019
order dismissing his first petition filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After review, we vacate the March
8, 2021 order permitting counsel to withdraw and remand for the appointment
of new counsel.
We previously set forth the facts and procedural history of this case, and
do not repeat it here. See Commonwealth v. Cabrera, 242 A.3d 450, 2397
EDA 2019 (Pa. Super. filed November 25, 2020) (non-precedential
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* Retired Senior Judge assigned to the Superior Court.
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memorandum). We determined therein that Appellant’s appeal was timely,
but we remanded with specific instructions to the PCRA court.1
At a March 1, 2019 PCRA hearing, the PCRA court stated that it received
a Turner/Finley2 letter and sent Appellant notice of its intent to dismiss his
PCRA petition pursuant to Pa.R.Crim.P. 907. N.T., 3/1/19, at 3. Appellant’s
counsel then stated on the record that he would notify Appellant and file a
motion to withdraw.3 Id. However, the certified record did not contain a
Turner/Finley letter, a motion to withdraw, or an order granting counsel’s
motion to withdraw.
Accordingly, we directed the PCRA court to ascertain the status of PCRA
counsel and file its findings with this Court. We instructed, in pertinent part:
“If the PCRA court permitted counsel to withdraw, the record shall document
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1 This matter was reassigned to the Honorable Scott DiClaudio because the
original PCRA court jurist no longer is sitting on the bench.
2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)
(setting forth the requirements for counsel to withdraw from representation
on collateral review).
3 We observe that in counsel’s purported Turner/Finley letter, he stated that
he telephoned Appellant and told him that he had a right to continue pro se
or by private counsel if the “Court” granted withdrawal. In addition to the fact
that a description of a telephone call to Appellant does not meet the mandate
of Turner and Finley, counsel’s statement is open to an interpretation that
Appellant cannot proceed until this Court rules on the withdrawal request.
See Commonwealth v. Muzzy, 141 A.3d 509, 512 (Pa. Super. 2016)
(clarifying that counsel’s letter to the client shall inform him that upon
counsel’s filing of petition to withdraw, he has the immediate right to proceed
pro se or through privately retained counsel).
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counsel’s petition to withdraw, letter to Appellant, and order granting
counsel’s motion to withdraw, and then we shall proceed to address
Appellant’s issues on appeal.” Cabrera, 2397 EDA 2019 (non-precedential
memorandum at *3).
Upon remand, by order dated March 8, 2021, the PCRA court permitted
counsel to withdraw. However, the supplemental record certified to this Court
following remand does not indicate counsel’s compliance with the protocols of
Turner and Finley. Additionally, the supplemental record still does not
include the required petition to withdraw as counsel and a copy of counsel’s
letter to Appellant. Upon our direction, our Prothonotary contacted PCRA
counsel, who indicated there was no letter to Appellant and no petition to
withdraw.
As we have previously stated, “The error here . . . is the denial of the
assistance of counsel, not the sufficiency of . . . whether Appellant’s claims in
his PCRA petition are meritorious.” Commonwealth v. Kelsey, 206 A.3d
1135, 1140 (Pa. Super. 2019). We have taken the time once already to permit
supplementation of the record in accordance with the requirements of Turner
and Finley. We will not continue to do so when it is clear that counsel has
not, and will not comply.
Because Appellant did not waive his right to representation by counsel,
and PCRA counsel has not complied with the minimum requirements of Turner
and Finley, the PCRA court’s dismissal of Appellant’s PCRA petition must be
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vacated, and remand to the PCRA court for appointment of new PCRA counsel
is required. See Commonwealth v. Cherry, 155 A.3d 1080, 1083 (Pa.
Super. 2017) (“When appointed, counsel’s duty is to either (1) amend the
petitioner’s pro se Petition and present the petitioner’s claims in acceptable
legal terms, or (2) certify that the claims lack merit by complying with the
mandates of Turner/Finley.”) (emphasis added) (footnote omitted).
On remand, following the PCRA court’s appointment of new counsel,
Appellant’s new counsel shall be permitted to file an amended PCRA petition,
or if counsel concludes in the exercise of his professional judgment that the
issues raised in the PCRA petition are without merit, counsel may file an
adequate no-merit letter that addresses all of the issues raised in Appellant’s
PCRA petition and must comply with the procedural requirements of Turner
and Finley to withdraw. Kelsey, 206 A.3d at 1140; Cherry, 155 A.3d at
1083.
Order of March 8, 2021 vacated. Case remanded with instructions to
appoint new PCRA counsel. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/14/21
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