Com. v. Castro, J. ( 2015 )

J-S13037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH M. CASTRO
Appellant No. 1521 WDA 2014
Appeal from the PCRA Order entered July 9, 2014
In the Court of Common Pleas of Blair County
Criminal Division at Nos: CP-07-CR-0001585-2012;
CP-07-CR-0001594-2012
BEFORE: BENDER, P.J.E., MUNDY, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 15, 2015
Appellant, Joseph M. Castro, appeals from the July 9, 2014 order
entered in the Court of Common Pleas of Blair County, denying his petition
for collateral relief filed pursuant to the Post Conviction Relief Act (PCRA), 42
§§ 9541-46. For the reasons that follow, we direct counsel for Appellant to
file directly with this Court either an advocate’s brief or a petition to
withdraw and a no-merit letter complaint with the Turner/Finley line of
cases.1
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1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). See also
Commonwealth v. Wrecks, 931 A.2d 717 (Pa. Super. 2007).
J-S13037-15
The record reflects that Appellant entered a guilty plea on November
30, 2012 to drug and gun-related charges. In accordance with the plea
agreement, he was sentenced to five to ten years in a State Correctional
Institution. Appellant filed a motion to modify sentence nunc pro tunc on
July 1, 2013. He also filed a PCRA petition alleging ineffectiveness of plea
counsel. By opinion and order entered July 9, 2014, the court denied and
dismissed the motion to modify sentence, explaining it no longer had
jurisdiction over the matter. Trial Court Opinion and Order, 7/9/14, at 3, 4.
The court also denied and dismissed the PCRA petition, noting the testimony
at the June 10, 2014 PCRA hearing did not support Appellant’s claim of
ineffectiveness. Id. at 3.
[T]he credible testimony, backed by Exhibits, revealed that
[Appellant] entered a knowing, voluntary, and intelligent guilty
plea based on negotiations by [plea counsel] that resulted in
[Appellant] receiving a sentence that was less than the District
Attorney wanted him to get. He was statutorily ineligible for
RRRI. [Appellant’s] complaint about [plea counsel] is that he
could not get him a good enough deal; [plea counsel] testified
credibly that he attempted to negotiate a sentence of 3 to 6
years but that the Commonwealth would not agree. The [c]ourt
cannot find any ineffectiveness of counsel based on the record.
Id.
On August 12, 2014, court-appointed counsel filed a petition to
reinstate Appellant’s appeal rights nunc pro tunc from the denial of his PCRA
petition. The motion was granted on August 13, 2014. On September 9,
2014, Appellant filed a timely notice of appeal in forma pauperis.
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In the brief filed with this Court by court-appointed counsel, one issue
is identified for our review, “Whether the Trial Court erred in dismissing the
Appellant’s current PCRA Petition.” Appellant’s Brief at 2. Following the
statement of facts, counsel provided a summary of the argument that reads
simply, “Appellant maintains that the trial court erred in dismissing his
Petition and his Motion.” Id. at 3. In the argument section that follows,
counsel presents case law regarding PCRA claims of ineffectiveness generally
and, in particular, with respect to entry of guilty pleas. Id. Rather than
develop any argument relating to—or even referring to—Appellant’s case,
counsel simply jumps to the conclusion section of the brief, stating, “After a
review of the record, including the discovery relative to the underlying
charges, and after written consultations with Appellant, and after a review of
the Guilty Plea Hearing transcript and the hearing held on June 10, 2014,
the undersigned avers that this appeal is frivolous.” Id. at 4.
When counsel is appointed in PCRA proceedings, “the appointment of
counsel shall be effective throughout the post-conviction collateral
proceedings, including any appeal from disposition of the petition for post-
conviction collateral relief.” Pa.R.Crim.P. 904(F)(2); see also
Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009) (en
banc) (“[A] criminal defendant has a right to representation of counsel for
purposes of litigating a first PCRA petition through the entire appellate
process.”). However, “[w]hen, in the exercise of his professional judgment,
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counsel determines that the issues raised under the [PCRA] are meritless,
and when the [PCRA] court concurs, counsel will be permitted to withdraw
and the petitioner may proceed pro se, or by privately retained counsel, or
not at all.” Turner, 544 A.2d at 928-29 (Pa. 1988) (addressing withdrawal
of counsel under the Post Conviction Hearing Act, precursor to the PCRA).
The issue of a PCRA litigant’s right to counsel generally arrives in this
Court in the wake of appointed counsel’s request to withdraw from
representation. In the context of a PCRA proceeding, we consider whether
counsel has followed the necessary steps to withdraw under the
Turner/Finley line of cases.
The Turner/Finley decisions provide the manner for post-
conviction counsel to withdraw from representation. The
holdings of those cases mandate an independent review of the
record by competent counsel before a PCRA court or appellate
court can authorize an attorney's withdrawal. The necessary
independent review requires counsel to file a “no-merit” letter
detailing the nature and extent of his review and list each issue
the petitioner wishes to have examined, explaining why those
issues are meritless. The PCRA court, or an appellate court if the
no-merit letter is filed before it, see Turner, supra, then must
conduct its own independent evaluation of the record and agree
with counsel that the petition is without merit. See
[Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009)].
Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012).2
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2
We note counsel’s conclusory statement that this “appeal is frivolous.”
Appellant’s Brief at 5. As this Court recognized in Wrecks, “Anders counsel
is not permitted to withdraw unless the appeal is wholly frivolous, but
Turner/Finley counsel is permitted to do so if the case lacks merit, even if
(Footnote Continued Next Page)
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Recognizing Appellant is entitled to representation throughout the
appeal from denial of his first PCRA petition, we conclude that the brief filed
by counsel does not constitute an advocate’s brief nor does it satisfy the
requirements for withdrawing from representation in accord with the
mandates of Turner/Finley. Therefore, we direct that, within 30 days of
the date of this Memorandum, counsel of record shall file directly with this
Court either a brief advancing the issue raised by Appellant or a petition to
withdraw and a no-merit letter compliant with Turner/Finley.3 The
Commonwealth will then have 30 days to file a responsive brief.
So ordered.
_______________________
(Footnote Continued)
it is not so anemic as to be deemed wholly frivolous.” Wrecks, 931 A.2d at
722.
3
See Commonwealth v. Brown, 836 A.2d 997, 999 n. 2 (Pa. Super.
2003) (quoting Commonwealth v. Quail, 729 A.2d 571, 573 (Pa. Super.
1999) (outlining options to ensure first-time PCRA petitioner is afforded
representation through the entire appellate process)).
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