Com. v. Ginyard, M. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MICHAEL GINYARD, JR. :
:
Appellant : No. 128 WDA 2021
Appeal from the PCRA Order Entered January 12, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at CP-02-CR-0000023-2011
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED: NOVEMBER 19, 2021
Michael Ginyard, Jr. (Appellant) appeals from the order denying his first
petition filed pursuant to the Post Conviction Relief Act (PCRA). See 42
Pa.C.S.A. §§ 9541-9546. Also, Appellant’s counsel has petitioned to withdraw
from representation. We grant counsel’s petition and dismiss the appeal.
On May 25, 2011, the trial court, sitting as factfinder, found Appellant
guilty of possession with intent to deliver a controlled substance (PWID) and
possession of a controlled substance.1 On August 25, 2011, the court
sentenced Appellant to 11½ - 23 months of incarceration, followed by 3 years
of probation. Appellant filed post-sentence motions, which the court denied
on September 22, 2011. Appellant did not file a direct appeal.
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1 35 P.S. §§ 780-113(a)(30), (16).
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On April 9, 2012, Appellant filed a motion for parole, which the trial court
granted. On September 4, 2013, while serving the term of probation in this
case, Appellant was arrested for a new drug crime. A detainer was lodged
against Appellant for the probation violation. On October 15, 2013, Appellant
filed a motion to lift the detainer, which the court denied. On September 11,
2014, the court revoked Appellant’s probation and sentenced him to 3 years
of probation. See Order of Sentence, 9/11/14 (stating sentence would
commence that same day and be concurrent with sentence of probation
imposed as a result of Appellant’s new drug offense). Appellant did not
appeal.
More than five years later, on December 3, 2019, Appellant filed a first
PCRA petition pro se. Appellant raised claims which included ineffectiveness
of counsel and insufficiency of the evidence.2 The PCRA court appointed
counsel, Diana Stavroulakis, Esquire (Attorney Stavroulakis). On March 14,
2020, Attorney Stavroulakis filed a petition to withdraw, along with a “no
merit” letter, pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). Attorney Stavroulakis opined that Appellant’s petition was time-barred
under the PCRA, and in the alternative, Appellant’s claims were wholly
frivolous. See 42 Pa.C.S.A. § 9545(b) (providing all PCRA petitions must be
filed within one year of the judgment of sentence becoming final, unless the
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2 Appellant’s claims pertained to his original sentence entered August 25,
2011.
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petitioner meets one of the enumerated exceptions); Petition to Withdraw and
No Merit Letter, 3/14/20, at ¶ 4 (“Counsel’s review did not reveal any
meritorious issues to raise in an Amended PCRA Petition, even if counsel could
make an argument that this case fell within an exception to the timeliness
requirement.”).
On November 12, 2020, the PCRA court issued notice pursuant to
Pa.R.Crim.P. 907 of its intent to dismiss Appellant’s petition without a hearing.
The court stated in relevant part:
[Appellant’s] judgment of sentence became final thirty days after
his post-sentence motion [was] denied on September 22, 2011.
As such, he had one year from the date his judgment of sentence
became final in which to file a timely PCRA Petition, i.e., October
22, 2012. [Appellant] did not file his PCRA Petition until eight
years later, [on] December 3, 2019, and has failed to properly
allege any exception to the timeliness requirement. See 42
Pa.C.S.A. § 9545(b)(1). For the foregoing reasons, [Appellant’s]
PCRA Petition is time-barred and meritless, the Court lacks
jurisdiction, and he is not entitled to relief.
Notice of Intent to Dismiss, 11/12/20, at 1-2. The PCRA court additionally
granted Attorney Stavroulakis leave to withdraw as counsel.
By order entered January 12, 2021, the PCRA court denied Appellant’s
PCRA petition without a hearing. Ten days later, Appellant timely filed a pro
se notice of appeal.3 The PCRA court subsequently issued a Pa.R.A.P. 1925(a)
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3 Appellant attached to his notice a handwritten document entitled “Appeal
Brief” in which he asserted, in relevant part, that PCRA counsel was
ineffective. See Notice of Appeal & Appeal Brief, 1/22/21.
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opinion relying upon the reasons advanced in the court’s Rule 907 notice of
intent to dismiss.
On February 11, 2021, the PCRA court appointed new counsel, William
Kaczynski, Esquire (Attorney Kaczynski), to represent Appellant in any
appellate proceedings. On August 12, 2021, Attorney Kaczynski filed with this
Court a petition for permission to withdraw as counsel, simultaneously with
an Anders4 brief. Appellant filed a pro se response. In sum, Appellant
asserted: (1) he was innocent of the PWID charge; (2) the PCRA should have
an innocence exception to the 1-year jurisdictional time bar; and (3) the trial
court erred in ignoring Appellant’s waiver of his right to counsel filed at the
preliminary hearing. See generally Response to Anders Brief, 9/7/21.
Before addressing the merits of Appellant’s appeal, we must determine
whether Attorney Kaczynski complied with the requirements of Turner/Finley
in petitioning to withdraw as Appellant’s counsel. We have explained:
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
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4 Anders v. California, 386 U.S. 738 (1967). The procedure set forth in
Anders is not the appropriate vehicle for withdrawing from PCRA
representation. See Commonwealth v. Karanicolas, 836 A.2d 940, 947
(Pa. Super. 2003). Counsel seeking to withdraw on collateral appeal must
follow the procedure outlined in Turner/Finley. However, because an
Anders brief provides greater protection to a defendant, this Court may
accept it in lieu of a Turner/Finley letter. Commonwealth v. Widgins, 29
A.3d 816, 817 n.2 (Pa. Super. 2011); Commonwealth v. Daniels, 947 A.2d
795, 798 (Pa. Super. 2008).
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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) (citations
omitted).
Our review of the record discloses that Attorney Kaczynski has complied
with the above requirements. In the Anders brief, he: (1) set forth the issues
Appellant wished to have reviewed; (2) stated he conducted a thorough review
of the record and applicable law; (3) determined there are no non-frivolous
claims Appellant can raise; and (4) explained why Appellant’s claims are
meritless. See generally Anders Brief. Moreover, Attorney Kaczynski
mailed Appellant a letter, dated August 12, 2021, informing him of his
intention to seek permission to withdraw from representation, as well as
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Appellant’s rights in lieu of representation. See Widgins, 29 A.3d at 818.
Since Attorney Kaczynski has complied with the Turner/Finley requirements,
we may proceed to independently review the record. However, before doing
so, we examine whether Appellant is eligible for collateral relief.
Section 9543 of the PCRA provides that to be eligible for relief, a
petitioner “must plead and prove by a preponderance of the evidence ... [t]hat
the petitioner has been convicted of a crime under the laws of this
Commonwealth and is at the time relief is granted, currently serving a
sentence of imprisonment, probation or parole for the crime[.]” 42
Pa.C.S.A. § 9543(a)(1)(i) (emphasis added); see also Commonwealth v.
Ahlborn, 699 A.2d 718, 720 (Pa. 1997) (“the denial of relief for a petitioner
who has finished serving his sentence is required by the plain language of the
statute.”). A petitioner becomes ineligible for PCRA relief “[a]s soon as his
sentence is completed, ... regardless of whether he was serving his sentence
when he filed the petition.” Commonwealth v. Hart, 911 A.2d 939, 942 (Pa.
Super. 2006).
Here, the record reveals that Appellant has completed his sentence. As
stated above, on September 11, 2014, the trial court revoked Appellant’s
probation and imposed a new sentence of three years of probation, to
commence that day. Appellant’s probationary sentence expired on September
11, 2017. Therefore, Appellant was not eligible for collateral relief when he
filed his PCRA petition in December 2019. See 42 Pa.C.S.A. § 9543(a)(1)(i);
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Commonwealth v. Descardes, 136 A.3d 493, 503 (Pa. 2016) (petitioner’s
“PCRA petition should have been dismissed because, as he was no longer
incarcerated at the time it was filed, he was ineligible for PCRA relief, and,
thus, both the PCRA court and the Superior Court lacked jurisdiction to
entertain the petition.”).
Accordingly, we dismiss Appellant’s appeal.5 Further, Attorney
Kaczynski is entitled to withdraw as Appellant’s counsel for the reasons
discussed above.
Appeal dismissed. Petition for leave to withdraw as counsel granted.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2021
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5 Although Appellant raised claims of PCRA counsel’s ineffectiveness following
the denial of his petition, the PCRA court, and this Court, lack jurisdiction to
address same. See Descardes; Cf. Commonwealth v. Bradley, 2021 WL
4877232, at *15 (Pa. Oct. 20, 2021) (“a PCRA petitioner may, after a PCRA
court denies relief, and after obtaining new counsel or acting pro se, raise
claims of PCRA counsel’s ineffectiveness at the first opportunity to do so, even
if on appeal.” (footnote omitted)).
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