Com. v. Tolbert, K. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KEITH TOLBERT :
:
Appellant : No. 1168 EDA 2017
Appeal from the PCRA Order March 13, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013923-2013
BEFORE: OTT, J., McLAUGHLIN, J., and STEVENS, P.J.E.
MEMORANDUM BY OTT, J.: FILED AUGUST 27, 2018
Keith Tolbert appeals, pro se, from the order of the Court of Common
Pleas of Philadelphia County, entered March 13, 2017, that dismissed his first
petition filed under the Post Conviction Relief Act (“PCRA”).1
Earl G. Kauffman, Esquire, was appointed to represent Tolbert on June 22,
2016, and there is no indication on the docket or in the certified record that
counsel was granted permission to withdraw. Accordingly, we remand for a
hearing to clarify the status of PCRA counsel’s representation of Tolbert.
____________________________________________
 Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541–9546.
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On April 9, 2015, Tolbert pleaded guilty to murder of the third degree,
conspiracy to commit robbery, and abuse of corpse.2 On April 28, 2016,
Tolbert pro se filed a timely PCRA petition. On June 22, 2016, the PCRA court
appointed PCRA counsel to represent Tolbert.3
On August 22, 2016, Tolbert mailed a letter addressed to the director of
the PCRA/Post Criminal Trial Unit for Philadelphia County, stating that PCRA
counsel had not contacted him.4 On December 7, 2016, Tolbert filed a motion
requesting that new counsel be appointed, because present PCRA counsel had
never corresponded nor otherwise contacted him.
On January 19, 2017, PCRA counsel filed a letter on the record
addressed to the PCRA court with the case name, case number, and “Non-
Capital Homicide PCRA Finley[5] Letter-No Merit Letter” in the reference line
(“No-Merit Letter”). The No-Merit Letter concluded: “Based on the above
arguments, it is my professional opinion that there are no legal issues of
arguable merit. Present counsel will not file an Amended Petition.” No-Merit
Letter, 1/19/2017, at 7. Nowhere in the No-Merit Letter does PCRA counsel
explicitly request permission to withdraw from representation of Tolbert, see
____________________________________________
2 18 Pa.C.S. §§ 2502(c), 903, and 5510, respectively.
3 The order did not instruct PCRA counsel to file an amended PCRA petition
within an allotted time.
4 This letter is in the certified record.
5 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc);
see also Commonwealth v. Freeland, 106 A.3d 768, 774 (Pa. Super. 2014)
(requirements for post-conviction counsel to withdraw from representation).
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generally id., and PCRA counsel did not file a separate application to
withdraw. A certificate of service accompanied the letter, stating that it was
served on Tolbert by United States first-class mail on January 19, 2017.
On January 24, 2017, the PCRA court entered a notice pursuant to
Pa.R.Crim.P. 907 (“Rule 907 Notice”) that the PCRA petition “will be dismissed
without further proceedings” on February 13, 2017. The Rule 907 Notice
continued:
(1) Your attorney has determined that the issues raised in your
pro se petition are without merit. See counsel’s letter pursuant to
Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213
(1988).
(2) The Court, after review of the record, accepts the Finley
letter and finds that the PCRA Petition [sic]
(3) The issues raised in your PCRA petition are without arguable
merit.
Notice Pursuant to Pa.R.Crim.P. 907, 1/24/2017.
On January 31, 2017, Tolbert filed pro se objections to the Rule 907
Notice, in which he stated that he never received a copy of the No-Merit Letter
from PCRA counsel. Obj. to Notice Pursuant to Pa.R.Crim.P. 907, 1/31/2017,
at ¶ 1.6
On March 13, 2017, the PCRA court entered an order dismissing the
PCRA petition, which appears below in its entirety:
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6 On February 17, 2017, Tolbert also filed pro se an “Objection to Notice of
Finley Letter”; however, it is unclear whether Tolbert had finally received a
copy of the No-Merit Letter or if this filing was a second, separate response to
the Rule 907 Notice.
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AND NOW, this 13th day of March, 2017, pursuant to the Post
Conviction Relief Act, 42 Pa.C.S.A. §9541, et seq, it is hereby
ORDERED and DECREED that following an independent review
of the matter, and upon consideration of PCRA counsel’s “no-merit
letter” filed in accordance with Commonwealth v. Turner, 544
A.2d 927(Pa. 1988) and Commonwealth v. Finley, 550 A.213
[sic] (Pa. Super. 1998), the Petitioner’s petition for post-
conviction relief is DISMISSED.
The Petitioner has thirty (30) days from the date of this Order in
which to file an appeal to the Superior Court of Pennsylvania if
desired. Petitioner may proceed pro se or with retained counsel;
no new counsel is to be appointed. If Petitioner is in forma
paurperis, that status is to continue.
Order, 3/13/2017 (emphasis in original). The PCRA court never specifically
granted or denied permission for PCRA counsel to withdraw his appearance in
the Rule 907 Notice, in the order of March 13, 2017, or in a separate order.
On March 31, 2017, Tolbert filed a pro se notice of appeal to this Court.
Since the PCRA court never explicitly granted or denied permission for
PCRA counsel to withdraw his appearance, the record is remanded to the PCRA
court for a period of time not to exceed 30 days, during which time the PCRA
court shall determine whether Tolbert is still represented by counsel and shall
notify this Court of its determination.7
Case remanded for a period of time not to exceed 30 days for further
proceedings to determine the status of Tolbert’s counsel. Panel jurisdiction
retained.
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7 A petitioner has an absolute right to counsel on his first PCRA petition,
“regardless of the merits of his claim.” Commonwealth v. Lindsey, 687
A.2d 1144, 1145 (Pa. Super. 1996); see also Pa.R.Crim.P. 904(A).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/18
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