Com. v. Jiles, S. ( 2017 )

J-S07014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
STEPHEN EUGENE JILES
Appellant No. 1063 MDA 2016
Appeal from the PCRA Order December 10, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s):
CP-67-CR-0002718-2009
CP-67-CR-0002719-2009
CP-67-CR-0002745-2010
CP-67-CR-0003039-2009
BEFORE: BOWES, LAZARUS, AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED MARCH 07, 2017
Stephen Eugene Jiles appeals from the order denying his PCRA
petition. For the following reasons, we remand the case with instructions to
counsel.
This Court previously set forth the relevant factual and procedural
history:
Following his convictions for numerous counts of robbery
and other related offenses at the above docket numbers,
Appellant was sentenced to an aggregate term of nine to twenty-
one years’ imprisonment. In a consolidated appeal, this Court
affirmed Appellant’s judgment of sentence on April 4, 2012.
Commonwealth v. Jiles, 48 A.3d 469 (Pa.Super. 2012)
(unpublished memorandum).
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On January 4, 2013, Appellant pro se timely filed a petition
pursuant to the [PCRA], raising, inter alia, a claim that counsel
was ineffective for failing to file a petition for allowance of appeal
to the Supreme Court of Pennsylvania from this Court’s
affirmance of his judgment of sentence. The PCRA court
appointed John Hamme, Esquire, as counsel. On April 24, 2013,
following a hearing, the PCRA court granted Appellant’s petition
with respect to that claim and reinstated Appellant’s right to file
a petition for allowance of appeal nunc pro tunc. The PCRA court
denied the petition in all other respects.
On May 16, 2013, Appellant filed a counseled notice of
appeal to this Court from the PCRA court’s April 24, 2013 order.
On May 23, 2013, Appellant filed a counseled petition for
allowance of appeal to our Supreme Court, which was denied on
October 2, 2013. Commonwealth v. Jiles, 76 A.3d 539 (Pa.
2013). On March 5, 2014, Appellant pro se filed another PCRA
petition. Appellant also requested the appointment of counsel.
On April 15, 2014, this Court affirmed the PCRA court’s April 24,
2013 order. Commonwealth v. Jiles, 102 A.3d 533 (Pa.Super.
2014). On May 1, 2014, the PCRA court appointed William Graff,
Esquire, to represent Appellant for purposes of his March 5, 2014
PCRA petition.
On June 26, 2014, the PCRA court held a hearing on
Appellant’s petition. At the hearing, Attorney Graff presented
two issues to the PCRA court, but rather than advocate for his
client, Attorney Graff essentially informed the PCRA court that
the issues did not warrant relief. Following the hearing, the
PCRA court dismissed Appellant’s PCRA petition.
Notwithstanding the procedural irregularities already
outlined above, at this point, the procedural posture of this case
begins to fall into complete disarray. A review of the record
clearly reveals that Appellant sought to appeal the dismissal of
his March 5, 2014 petition, but the clerk of courts and the PCRA
court failed to handle appropriately his pro se filings evidencing
that fact, and his appointed counsel failed to act altogether. As
a result, Appellant was denied his right to appeal the PCRA
court’s June 26, 2014 order dismissing his petition.
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Appellant then filed his “Motion to Re-Instate Appeal Rights
or, in the Alternative, to Have Docketed Notice of Appeal
Processed by the Clerk of Courts” on August 20, 2014. On
August 28, 2014, the PCRA court denied Appellant’s motion.
Commonwealth v. Jiles, 131 A.3d 94 (Pa.Super. 2015) (unpublished
memorandum) at 1-2.
In the following appeal, Appellant argued that the PCRA court erred in
failing to re-instate his appellate rights since appointed counsel failed to take
the appropriate steps to do so, and Appellant had evinced a clear intent to
appeal the PCRA court’s decision. In addition, Appellant raised the same
four issues he presented in his March 5, 2014 PCRA petition. We found that
Attorney Graff’s numerous errors effectively denied Appellant his right to
representation by counsel. Thus, we remanded for the appointment of new
counsel, and the filing of an amended PCRA petition or Turner/Finley1 no-
merit letter. As such, we did not reach the merits of the four issues
Appellant raised from his PCRA petition.
On remand, the PCRA court appointed George Margetas, Esquire, to
represent Appellant during his PCRA proceedings. Attorney Margetas did not
file an amended PCRA petition. The PCRA court held a hearing on December
10, 2015, wherein counsel argued the issues raised in Appellant’s pro se
PCRA petition. The PCRA court denied relief, and Appellant indicated, on the
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Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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record, that he wanted appellate review. Attorney Margetas did not file a
notice of appeal, nor did he seek to withdraw as counsel. Subsequently,
Appellant again petitioned the court for reinstatement of his appellate rights.
The PCRA court appointed Heather Reiner, Esquire, and, after a hearing on
May 31, 2016, the court re-instated Appellant’s appeal rights.
Appellant filed the present timely, counseled notice of appeal and
complied with the court’s order to file a Rule 1925(b) statement of errors
complained of on appeal. On November 14, 2016, counsel filed with this
Court a Turner/Finley letter and an application to withdraw as counsel.
Thereafter, Appellant filed an application for relief requesting that the Court
permit him to file an amended Rule 1925(b) statement in order to include
the four issues he raised in his March 5, 2014 PCRA petition. We denied this
relief, but permitted Appellant an extension of time to file a response to
counsel’s no-merit letter. Appellant did so, contending that appellate
counsel had filed a Rule 1925(b) statement without his input, and that
statement failed to include the issues for which he seeks redress on appeal.
The court authored its Rule 1925(a) opinion, and this matter is now ready
for our review.
PCRA counsel’s Turner/Finley brief directs this Court’s attention to a
single issue of possible merit: “The PCRA court committed an error of law
when it denied relief pursuant to the [PCRA] on the basis that [Appellant’s]
trial counsel was ineffective for failing to fully advise [Appellant] regarding
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his plea offer and the potential sentence he faced by rejecting that offer.”
Turner/Finley brief at 6.
As a preliminary matter, we must address whether counsel has met
the requirements of Turner/Finley. 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. Counsel must then file a “no-merit” letter detailing
the nature and extent of her review and list each issue the petitioner wishes
to have examined, explaining why those issues are meritless.
Commonwealth v. Freeland, 106 A.3d 768, 774 (Pa.Super. 2014).
Counsel is required to contemporaneously serve upon his client her no-merit
letter and application to withdraw along with a statement that, if the court
granted counsel’s withdrawal, the client may proceed pro se or with a
privately retained attorney. Id. at 774. This Court must then conduct its
own independent evaluation of the record and agree with counsel that the
petition is meritless. Id.
We note that, if counsel does not satisfy the technical prerequisites of
Turner/Finley, we will not reach the merits of the underlying claim.
Commonwealth v. Wrecks, 931 A.3d 717, 721 (Pa.Super. 2007).
Instead, we will deny counsel’s request to withdraw and direct the PCRA
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court to take appropriate steps, such as directing counsel to file a proper
Turner/Finley request or file an advocate’s brief. Id.Here, we find counsel has not complied with the requirements of
Turner/Finley. Counsel detailed her review of the record and concluded
that Appellant’s claims are meritless. She notified Appellant, and provided
him with a copy of her no-merit letter, informing him of his right to proceed
pro se or to retain private counsel. However, counsel’s brief does not
present each issue Appellant wishes to have examined on appeal, and
concomitantly, does not explain why those issues lack merit.
Counsel filed a Rule 1925(b) statement raising the issue set forth
above. In his response to counsel’s no-merit letter, Appellant avers that
counsel did not communicate with him prior to the filing of that statement.
Had she done so, Appellant contends, he would have directed her to address
the following four issues:
Whether trial counsel, Kevin Hoffman, rendered ineffective
assistance by failing to move for dismissal of case No. CP-67-CR-
000745-2010 based on a denial of due process and prosecutorial
misconduct?
Whether trial counsel, Kevin Hoffman, was ineffective for offering
erroneous advice with regard to accepting or rejecting a plea
offered by the Commonwealth that was significantly less onerous
than the prison time imposed following trial?
Whether [A]ppellant was subjected to structural error when a
[J]udge who decided pre-trial motions was involved in an
intimate relationship with the assistant district attorney, who
prepared and submitted said motions, resulting in a denial of
due process?
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Whether trial and direct appeal counsel, Kevin Hoffman, was
ineffective for failing to file an application for relief in appellate
court when he discovered that [the pre-trial motions Judge] was
intimately involved with the assistant district attorney who
prepared and submitted several pre-trial motions decided by
[that Judge]?
Appellant’s Response to No-Merit Letter, 1/10/17, at unnumbered 1-2.
Indeed, Appellant has made it abundantly clear that he desires this Court to
address these claims. He has included these same four issues, verbatim, in
each filing he has presented to this Court. Moreover, Appellant’s pro se
March 5, 2014 PCRA petition raised these claims, and Attorney Margetas
argued them before the PCRA court on December 12, 2015. Upon the PCRA
court’s denial of relief premised upon those allegations, Appellant stated, on
the record, that he wished to appeal the PCRA court’s decision. N.T. PCRA
Hearing, 12/10/15, at 52.
We recognize that counsel did not raise these issues in Appellant’s
Rule 1925(b) statement, and hence, they would not otherwise be preserved.
Nevertheless, the record reveals counsel had ample notice as to which issues
that Appellant wished to raise on appeal, and we can discern no rationale for
her failure to do so in her Turner/Finley brief. Since counsel has failed to
satisfy the technical prerequisites of Turner/Finley, we deny counsel’s
request to withdraw and remand this matter for counsel to file a proper
Turner/Finley brief, or in the alternative, to file an advocate’s brief, taking
the necessary steps to ensure Appellant’s issues are presented on appeal.
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Record remanded. Counsel shall comply with the mandates of this
decision within sixty days of remand of the record. Jurisdiction retained.
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