Com. v. Campbell, L. ( 2023 )

J-S14015-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LOUIS RUSHAD CAMPBELL :
:
Appellant : No. 1361 WDA 2022
Appeal from the PCRA Order Entered October 21, 2022
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0000872-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LOUIS RUSHAD CAMPBELL :
:
Appellant : No. 1374 WDA 2022
Appeal from the PCRA Order Entered October 21, 2022
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0000938-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LOUIS RUSHAD CAMPBELL :
:
Appellant : No. 1375 WDA 2022
Appeal from the PCRA Order Entered October 21, 2022
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0000955-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-S14015-23
:
v. :
:
:
LOUIS RUSHAD CAMPBELL :
:
Appellant : No. 1376 WDA 2022
Appeal from the PCRA Order Entered October 11, 2022
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0000939-2017
BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: July 28, 2023
Louis Rushad Campbell appeals from the order entered in the Blair
County Court of Common Pleas on October 22, 2022, dismissing Campbell’s
petitions1 filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.
C.S.A. §§ 9541-9546. Campbell’s counsel has filed a brief in which he
concludes there are no non-frivolous issues to raise on appeal.2 As we find
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Campbell filed separate notices of appeal under the four lower court dockets
involved. We consolidated the appeals sua sponte as they raised identical
challenges to the PCRA court’s order.
2 We note that PCRA counsel has not cited to the proper authorities in his brief
to support his request to withdraw as counsel based on his finding that there
are no non-frivolous issues to raise on appeal. When counsel seeks to
withdraw from representation on collateral appeal, as here, Turner and
Finley apply. See Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa.
Super. 2011) (citing Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)). On
its own, counsel’s mistake is not fatal to his application to withdraw, though,
as we can nevertheless evaluate whether the brief submitted substantially
satisfies Turner/Finley criteria. See id. at 819.
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counsel’s attempt to withdraw is deficient, we instruct counsel to correct those
deficiencies before we may address this appeal on its merits.
On December 17, 2019, Campbell entered an open nolo contendere plea
to all counts of the criminal information at the above dockets. Sentencing was
deferred for preparation of a presentence investigation report. Despite being
represented by counsel, Campbell filed a pro se motion to withdraw his guilty
plea. The trial court dismissed the motion without prejudice to allow Campbell
to file a counseled motion. Counsel subsequently filed a new motion to
withdraw the guilty plea. The trial court denied the motion and sentenced
Campbell to an aggregate term of twelve years and three months to twenty-
four and one-half years’ incarceration.
Campbell subsequently filed pro se PCRA petitions under each separate
docket from December 2020 to January 2021. Counsel was appointed and
filed an amended PCRA petition, followed by a second amended petition. After
two evidentiary hearings, the PCRA court denied the PCRA petition on October
24, 2022. That same day, counsel filed a motion to withdraw as counsel with
the PCRA court. A hearing on the motion was scheduled.
Counsel subsequently filed a notice of appeal on Campbell’s behalf in
order to protect Campbell’s appellate rights. The PCRA court then filed an
order stating it would take no further action on counsel’s motion to withdraw,
along with a pro se motion seeking counsel’s withdrawal, due to the notice of
appeal transferring jurisdiction to this Court. Counsel has since filed a new
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motion to withdraw with this Court, along with a brief stating there are no
non-frivolous issues to raise on appeal.
Before any substantive analysis, we must examine whether PCRA
counsel has met the procedural requirements for withdrawing as counsel.
Counsel petitioning to withdraw from PCRA representation
must proceed … under [Turner], and [Finley] … 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 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. Wreck, 931 A.2d 717, 721 (Pa. Super. 2007) (some
citations omitted)
Here, counsel submitted a brief with this Court which concludes there
are no non-frivolous issues to raise on appeal. This conclusion appears to be
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based solely on the PCRA court’s opinion. See Appellant’s Brief, at 6. Counsel
does not detail the extent of his review, evaluate any issues, nor even mention
any issues.
In addition, while counsel included a copy of a letter sent to Campbell,
there is no indication that a copy of his petition to withdraw and accompanying
brief was ever sent to Campbell. On the contrary, the letter to Campbell
indicated the petition to withdraw will be forthcoming but had not yet been
filed. See Application to Withdraw As Counsel, 1/18/23, Exhibit A.
Further, “in an appeal from the denial of a PCRA petition, if counsel files
a petition to withdraw as appellate counsel in this Court, the letter to the client
[] shall inform the PCRA petitioner that upon the filing of counsel's petition to
withdraw, the petitioner-appellant has the immediate right to proceed in the
appeal pro se or through privately-retained counsel.” Commonwealth v.
Muzzy, 141 A.3d 509, 512 (Pa. Super. 2016). While counsel’s letter to
Campbell informs Campbell of his right to proceed with or without an attorney,
it is not clear that that right may be exercised immediately. See Application
to Withdraw As Counsel, 1/18/23, Exhibit A.
Accordingly, we deny the motion to withdraw currently before us, and
we direct counsel to either file an advocate's brief or a petition to withdraw
that meets the requirements pursuant to Turner/Finley within 15 days. If
counsel elects to file a petition to withdraw, he must also comply with the
notice requirements of Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa.
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Super. 2005), and file proof thereof with this Court. Namely, counsel must
attach to the petition a copy of a letter sent to Campbell, fully advising him of
his immediate right, either pro se or with privately retained counsel, to file a
brief on any additional points he deems worthy of review, and advise Campbell
that he may respond, within 30 days of counsel's letter, to counsel's brief, if
he so chooses. The Commonwealth will then have 30 days to respond to
anything filed by current PCRA counsel or Campbell.
PCRA counsel to file an application to withdraw within fifteen (15) days
of the date this memorandum is filed and provide notice pursuant to
Turner/Finley. Campbell may respond to the application within thirty (30)
days of the date of the letter notifying him of the application to withdraw. In
the alternative, PCRA counsel may file an advocate's brief within fifteen (15)
days of the date of this memorandum. In either event, the Commonwealth
will be permitted to file a response to such filings, by either PCRA counsel or
Campbell, within thirty (30) days of the date they are filed in this Court.
Motion to withdraw denied. Panel jurisdiction retained.
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