Com. v. Santiago, J. ( 2014 )

J-S59032-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE MANUEL SANTIAGO,
Appellant No. 808 EDA 2014
Appeal from the PCRA Order Entered February 26, 2014
in the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0002649-2011,
CP-15-CR-0002721-2010
BEFORE: SHOGAN, LAZARUS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 07, 2014
Jose Manuel Santiago (Appellant) appeals from the February 26, 2014
order which denied his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We remand with instructions.
The PCRA court summarized the facts of the case as follows.
On March 26, 2012, Appellant pled guilty to three counts
of rape, three counts of involuntary deviate sexual intercourse,
and one count of aggravated indecent assault.[1] At his plea
hearing, Appellant admitted that he engaged in sexual
intercourse and deviate sexual intercourse with his daughter and
with two of his nieces, all of whom were minors at the time of
his crimes. He also admitted to digitally penetrating the genitals
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
In exchange for his guilty pleas to these counts, the Commonwealth
withdrew over 1,600 additional counts against Appellant. N.T., 3/26/2012,
at 12.
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of another daughter, who was also a minor at the time of the
crime. He was sentenced that day to a term of imprisonment of
twelve and one-half to twenty-five years.
On February 21, 2013, Appellant filed a pro se PCRA
petition. [The PCRA court] appointed him PCRA counsel on
February 27, 2013. On April 29, 2014, counsel moved to
withdraw his representation, having found no issue that would
entitle Appellant to post-conviction relief. [The PCRA c]ourt also
conducted an independent review of the file and of the record,
knowingly, voluntarily and intelligently, and that his sentence
was legal. Thus, on June 6, 2013, [the PCRA court] entered an
order giving Appellant the mandatory twenty day notice of [its]
intention to dismiss his PCRA petition without a hearing.
Appellant responded to this notice on June 27, 2013. In
his response he raised a somewhat ambiguous claim that he
requested his trial counsel to file a direct appeal of his sentence.
issue [alone and ordered PCRA counsel to continue to represent
Appellant].
The evidence presented at the hearing revealed that Appellant
never requested his trial counsel to file a direct appeal of his
sentence. For that reason, on February 26, 2014, [the PCRA
PCRA Court Opinion, 4/7/2014, at 1-2 (citations to the record omitted).
Appellant, pro se, filed a notice of appeal on March 6, 2014. On March
18, 2014, the PCRA court entered orders (1) granting PCRA counsel leave to
withdraw, and (2) requiring Appellant to file a concise statement of errors
complained of on appeal. On April 1, 2014, Appellant filed a statement. The
PCRA court filed its opinion on April 7, 2014.
awkward procedure by which they have come before us.
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First, Appellant was represented by counsel at the time he filed the
notice of appeal. Generally, such hybrid representation is not allowed, and
pro se filings by represented parties are considered legal nullities. See,
e.g., Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010) (holding pro se
1925(b) statement filed by an appellant who was represented by counsel on
appeal was a legal nullity). However, our Supreme Court has held that a pro
se notice of appeal from a final judgment filed by a represented appellant is
not automatically void. Commonwealth v. Cooper, 27 A.3d 994, 1007
(Pa. 2011) (holding Superior Court erred in declining to address the merits
of pro se appeal after subsequently-filed counseled appeal was dismissed as
duplicative). Given that Appellant clearly wished to appeal the dismissal of
his petition and that the PCRA court granted counsel leave to withdraw
appeal for want of a valid notice of appeal.
Second pro se brief, which
fails in many respects to comply with the Rules of Appellate Procedure,
because the PCRA court permitted counsel to withdraw his representation
after the notice of appeal was filed. For the following reasons, we hold that
the PCRA court erred in so doing.
[B]efore an attorney can be permitted to withdraw from
representing a petitioner under the PCRA, Pennsylvania law
requires counsel to file and obtain approval of -
letter pursuant to the mandates of [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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Commonwealth v. Willis, 29 A.3d 393, 400 (Pa. Super. 2011) (quoting
Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003))
(emphasis added).
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
-
detailing the nature and extent of his review and list each issue
the petitioner wishes to have examined, explaining why those
own independent evaluation of the record and agree with
counsel that the petition is without merit.
Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012)
(emphasis added).
principles in Commonwealth v. Jackson, 965 A.2d 280 (Pa. Super. 2009),
counsel, who had filed a Turner/Finley letter and corresponding motion,
was permitted to withdraw. This Court affirmed. Jackson filed a second
PCRA petition, which the PCRA court dismissed without a hearing. On appeal
from the dismissal of the second petition, this Court reversed and remanded
for a hearing. Counsel was appointed. Following the hearing, the PCRA
counsel for representation at t
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litigation of the issue. Such litigation necessarily includes the appeals
Id. at 284. Therefore, this court determined that the PCRA court
erred in relieving counsel of his duties prior to the conclusion of the
litigation. Accordingly, we remanded the case for the appointment of
counsel, and allowed the filing nunc pro tunc of a counseled 1925(b)
statement and responsive 1925(a) opinion. Id.
Here, counsel filed a Turner/Finley letter on April 29, 2013. The
pro se response to its notice of intent to
not without merit on its
face, and ordered counsel to continue representing Appellant at the
evidentiary hearing conducted on October 1, 2013, thus, in effect, denying
2014, without counsel having filed a new petition to withdraw or
Turner/Finley letter.
Appellant was entitled to the benefit of counsel throughout the
litigation of the issue on which the PCRA hearing was ordered, including the
appeals process. Jackson, 965 A.2d at 284. Therefore, the PCRA court
erred in sua sponte
conclusion of the hearing, and while this appeal was pending before this
Court.
Accordingly, we remand this case for the appointment of counsel, who
shall file a 1925(b) statement nunc pro tunc. Thereafter, the PCRA court
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shall file either a new 1925(a) opinion or a statement indicating that it relies
upon its prior opinion. Upon the return of the record to this Court, the
prothonotary shall enter a new briefing schedule, in accordance with which
r a petition to
withdraw and Turner/Finley brief addressing the issues Appellant wishes to
raise on appeal.
Case remanded with instructions. Panel jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2014
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