Com. v. Marquez, E.

J-S84023-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWIN MARQUEZ :
:
Appellant : No. 790 EDA 2018
Appeal from the PCRA Order February 6, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-CR-0904661-2005
BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OTT, J.: FILED APRIL 29, 2019
Edwin Marquez, appeals, pro se, from the Order of February 6, 2018,
that denied his first petition brought under the Post Conviction Relief Act
(PCRA).1 On appeal, Marquez claims he received ineffective assistance of trial
and appellate counsel. For the reasons discussed below, we do not reach the
merits of Marquez’s arguments. Instead, we vacate the denial of PCRA relief
and remand for the appointment of new counsel.
In late 2006, a jury found Appellant guilty of murder in the third degree
and conspiracy. On January 18, 2007, the trial court sentenced Marquez to
17½ to 35 years’ imprisonment. On August 31, 2009, an en banc panel of
this Court affirmed the judgment of sentence. Commonwealth v. Marquez,
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
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980 A.2d 145 (Pa. Super. 2009) (en banc). The Pennsylvania Supreme Court
denied leave to appeal on December 29, 2009. Commonwealth v. Marquez,
987 A.2d 160 (Pa. 2009).
On August 17, 2011, Marquez, acting pro se, filed the instant PCRA
petition. In the petition, Marquez acknowledged that it was untimely but
quoted from a letter from appellate counsel in which counsel acknowledged
that he had neglected to inform Marquez of the Pennsylvania Supreme Court’s
denial of his petition for leave to appeal. Petition for Post Conviction Collateral
Relief, 8/17/2011, at 3-5. On March 14, 2012, the PCRA court having taken
no action on his petition, Marquez filed a pro se memorandum of law. On May
20, 2014, Marquez moved for appointment of counsel. Although not
specifically noted on the docket, it appears that the court appointed David S.
Rudenstein, Esq., soon thereafter.
On July 8, 2015, the PCRA court docketed a pro se PCRA petition at this
case number, filed by Marquez’s co-defendant and brother, Carlos Jimenez.2
On October 23, 2017, counsel filed a motion to withdraw and a Turner/Finley
letter. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Our
review of counsel’s filing demonstrates that, although the court appointed
counsel to represent Marquez, the petition counsel reviewed and discussed in
____________________________________________
2Jiminez also filed his pro se PCRA petition at the correct case number, CP-
51-CR-0904662-2005. That petition was dismissed and no appeal was filed.
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his Turner/Finley letter, was not Marquez’s, but the petition filed by his
brother, Jimenez, which raised a completely different issue, that he was not
exposed to the death penalty. Turner/Finley Letter, 10/23/2017, at 1-7.
On January 2, 2018, the PCRA court issued notice of its intent to dismiss
Marquez’s petition pursuant to Pennsylvania Rule of Criminal Procedure
907(1) because of counsel’s filing of the Turner/Finley letter. Notice
Pursuant to Pennsylvania Rule of Criminal Procedure 907, 1/02/2018, at 1.
Marquez did not file a response. On February 6, 2018, the court dismissed
the PCRA petition and granted counsel’s petition to withdraw. The instant
appeal followed. The PCRA court did not order Marquez to file a concise
statement of errors complained of on appeal. On March 28, 2018, the PCRA
court issued an opinion. In its opinion, the court found that Marquez timely
filed his PCRA petition and it analyzed the issues Marquez raised in the PCRA
petition on the merits. Opinion, 3/28/2018, at 2-14.
Our standard of review for an order denying PCRA relief is well settled:
This Court’s standard of review regarding a PCRA court’s order is
whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. Great deference is
granted to the findings of the PCRA court, and these findings will
not be disturbed unless they have no support in the certified
record. Moreover, a PCRA court may decline to hold a hearing on
the petition if the PCRA court determines that a petitioner’s claim
is patently frivolous and is without a trace of support in either the
record or from other evidence.
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations
and quotation marks omitted).
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Prior to any discussion of the merits of this appeal, we must first
ascertain the propriety of the PCRA court’s granting of counsel’s motion to
withdraw. Pursuant to Turner/Finley and their progeny:
Counsel petitioning to withdraw from PCRA representation 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 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.
* * *
[W]here counsel submits a petition and no-merit letter that . . .
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.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation
omitted).
Unfortunately, counsel reviewed the incorrect petition and he premised
his Turner/Finley letter on his analysis of Jimenez’s petition, presumably
because Jimenez’s caption contained the same docket number as Marquez’s
case. The PCRA court then compounded the error by issuing a Rule 907 notice
and ultimately granting counsel’s petition to withdraw when, it is clear upon
our review, he did not comply with the dictates of Turner/Finley as to
Marquez’s petition. The Rules of Criminal Procedure expressly mandate that
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a defendant shall be entitled to legal counsel when filing a first time PCRA
petition. It is the province of appointed counsel to evaluate and develop a
defendant’s claims. See Commonwealth v. Williams, 782 A.2d 517, 525
(Pa. 2001). While the PCRA court did undertake a thorough analysis of both
the timeliness of the PCRA petition and the merits of the issues raised in
Marquez’s pro se petition, it should not have permitted counsel to withdraw
when counsel so patently failed to evaluate and develop Marquez’s claims.
Thus, we are constrained to vacate the denial of Marquez’s PCRA petition
and remand the matter back to the PCRA court, so that Marquez may have an
analysis undertaken of the issues he wishes to raise in his PCRA petition. Upon
remand, we direct the PCRA court to appoint new counsel, who may file either
an amended PCRA petition or a new Turner/Finley letter. Given the length
of time that Marquez’s petition has languished in the courts, we hope that the
PCRA court will do so as expeditiously as possible.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/19
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