Com. v. Samuels, L. ( 2023 )

J-S31029-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LARRY RAFIQ SAMUELS :
:
Appellant : No. 248 EDA 2023
Appeal from the PCRA Order Entered January 4, 2023
In the Court of Common Pleas of Montgomery County
Criminal Division at No: CP-46-CR-0006041-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LARRY RAFIQ SAMUELS :
:
Appellant : No. 249 EDA 2023
Appeal from the PCRA Order Entered January 4, 2023
In the Court of Common Pleas of Montgomery County
Criminal Division at No: CP-46-CR-0005275-2016
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 11, 2023
Appellant, Larry Rafiq Samuels, appeals from an order dismissing his
first petition for relief under the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546, without a hearing. Both the PCRA court and the
Commonwealth recommend that we vacate the order of dismissal and remand
for the appointment of new counsel because PCRA counsel’s “no merit” letter
does not comply with the requisites of Commonwealth v. Turner, 544 A.2d
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927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988). We agree with this recommendation, and we remand for appointment
of new PCRA counsel and further proceedings.
Following a non-jury trial, Appellant was convicted of numerous counts
of burglary–overnight accommodation (person present) and theft by unlawful
taking or disposition, one count of criminal attempt and multiple counts of
criminal mischief. These convictions arose from Appellant’s commission of a
string of overnight residential burglaries in Montgomery, Bucks, Chester,
Delaware and Philadelphia County. The court sentenced Appellant to an
aggregate term of fifteen to thirty years’ imprisonment. Appellant filed a
timely direct appeal, and on May 7, 2021, this Court affirmed on direct appeal.
On March 31, 2022, Appellant filed a timely pro se PCRA petition. The
court appointed PCRA counsel, who filed a petition to withdraw as counsel
along with a no-merit letter asserting that there was no evidence to warrant
an evidentiary hearing. The letter stated that Appellant’s first claim, an
argument that trial counsel was ineffective for failing to move for
sequestration of police witnesses during suppression hearings, failed because
Appellant could not demonstrate prejudice. The letter continued:
The remaining issues you raise all deal with your trial attorney’s
failure to litigate, argue, investigate, call certain witnesses, or ask
questions of certain witnesses. These various claims also fail
under the same standard for the prejudice prongs. In order to
prove counsel was ineffective you must demonstrate but for
counsel’s actions the outcome of your proceedings would have
been different. In reviewing the transcripts, Mr. McElroy [trial
counsel] questioned the appropriate witnesses, advanced the
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proper legal arguments. Unfortunately, all the germane issues
that Mr. McElroy raised in his pre-trial motions were denied by the
trial court. Nothing Mr. McElroy did or didn’t do, would have
changed that outcome. In addition, the pre-trial rulings were
ultimately appealed to the Superior Court, and the Superior Court
affirmed all of [these] rulings.
No-Merit Letter, 9/13/22, at 4. There was no further analysis of these issues.
On November 22, 2022, the PCRA court issued a notice of intent to
dismiss Appellant’s PCRA petition within twenty days. In the same order, the
court granted counsel’s motion to withdraw as counsel for Appellant.
Appellant filed a response to the notice of intent to dismiss arguing, inter alia,
that the no-merit letter was inadequate due to lack of particularity. On
January 4, 2023, the court entered an order dismissing the petition.
Acting pro se, Appellant filed a timely appeal. Both Appellant and the
PCRA court complied with Pa.R.A.P. 1925. Appellant argued in his Rule 1925
concise statement of matters complained of on appeal that PCRA counsel’s no-
merit letter was inadequate due to lack of particularity. The PCRA court
agreed with this argument and recommended in its Rule 1925 opinion that
this Court vacate the order of dismissal and remand for appointment of new
PCRA counsel.
In this Court, Appellant, who continues to proceed pro se, raises
numerous issues in his brief, including a claim that PCRA counsel was
ineffective for failing to submit a proper no-merit letter. Appellant’s Brief at
66-67. The Commonwealth concedes in its brief that the no-merit letter is
inadequate and agrees with the PCRA court’s recommendation to vacate the
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order of dismissal and remand for further proceedings with an appointment of
new PCRA counsel.
This was Appellant’s first PCRA petition. The Rules of Criminal Procedure
provide that a convicted defendant has the right to assistance of counsel in
his first PCRA petition. Pa.R.Crim.P. 904(c). This Court has instructed:
The indigent petitioner’s right to counsel. must be honored
regardless of the merits of his underlying claims, even where
those claims were previously addressed on direct appeal, so long
as the petition in question is his first.
[Under Turner/Finley, i]f PCRA counsel seeks to withdraw on the
ground that the issues raised by the PCRA petitioner are without
merit, he must satisfy the following requirements: he must file a
sufficient no-merit letter, send the PCRA petitioner copies of the
application to withdraw and no-merit letter, and advise the PCRA
petitioner of his right to proceed pro se or with a privately retained
attorney. The no-merit letter must set forth; 1) the nature and
extent of counsel’s review of the case; 2) each issue that the
petitioner wishes to raise on appeal; and 3) counsel’s explanation
of why each of those issues is meritless. Where PCRA counsel’s
no-merit letter does not discuss all of the issues that the convicted
defendant has raised in a first PCRA petition and explain why they
lack merit, it does not satisfy these mandatory requirements and
dismissal of the PCRA petition without requiring counsel to file an
amended PCRA petition or a further, adequate no-merit letter is a
deprivation of the right to counsel on the PCRA petition.
Commonwealth v. Kelsey, 206 A.3d 1136, 1139 (Pa. Super. 2019)
(citations omitted). Even when the PCRA court’s review goes beyond counsel’s
inadequate no-merit letter (which did not occur in this case), we have held
that the inadequate no-merit constitutes a denial of assistance of counsel that
requires remand for appointment of new PCRA counsel and either (1) the filing
of an amended PCRA petition, or (2) an adequate no-merit letter that
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addresses all issues in the PCRA petition along with a motion to withdraw. Id.
at 1140.
In this case, the PCRA court wrote in its Rule 1925 opinion:
PCRA counsel’s analysis of Appellant’s issues was . . . brief and
[explained] only . . . in a summarily and conclusory fashion that
they lacked merit. PCRA counsel did not address all of the issues
that Appellant set forth in his pro se petition and failed to fully
explain why the ones he did address lacked merit with any
specificity. Therefore, Appellant was effectively deprived of his
right to counsel on his first PCRA petition. This case should be
remanded so that the final order of dismissal can be vacated and
new PCRA counsel can be appointed.
Opinion, 3/20/23, at 3. The Commonwealth agrees with the trial court’s
conclusions. Commonwealth’s Brief at 7.
Based on our review of the record, particularly the no-merit letter, and
the recommendations of the PCRA court and the Commonwealth, we conclude
that the no-merit letter failed to address the issues raised in Appellant’s PCRA
petition with adequate specificity. The passage from the no-merit letter
recited above demonstrates a lack of attention to detail and a lack of
particularized analysis of a multitude of issues. These deficiencies require
vacatur of the PCRA court’s order of dismissal and a remand to the PCRA court
for appointment of new PCRA counsel. On remand, Appellant’s new counsel
shall be permitted to file an amended PCRA petition or, if counsel concludes
in the exercise of his or her professional judgment that the issues raised in
the PCRA proceeding are without merit, counsel may file an adequate no-merit
letter that addresses all of the issues raised in Appellant's PCRA petition and
move to withdraw.
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Order of dismissal vacated. Case remanded with instructions to appoint
new PCRA counsel. Jurisdiction relinquished.
Date: October 11, 2023
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