Commonwealth v. Muzzy

J-S17028-16
2016 PA Super 77COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL SCOTT MUZZY,
Appellant No. 1215 WDA 2015
Appeal from the PCRA Order July 21, 2015
In the Court of Common Pleas of Warren County
Criminal Division at No(s): CP-62-CR-0000043-2013
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
OPINION BY SHOGAN, J.: FILED MARCH 31, 2016
Appellant, Daniel Scott Muzzy, appeals from the order denying his first
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. In addition, counsel has filed a petition seeking
to withdraw. As we find that counsel has not fully and accurately complied
with the requirements of Turner/Finley,1 we deny appellate counsel’s
request to withdraw at this time.
Appellant was charged with rape of a child, statutory sexual assault,
involuntary deviate sexual intercourse with a child (“IDSI”), aggravated
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*
Former Justice specially assigned to the Superior Court.
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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indecent assault, indecent assault, and corruption of a minor by information
filed February 13, 2013. The affidavit of probable cause, filed by Warren
County Police Officer Jeffrey P. Osborne, indicates that the nine-year-old
female victim’s father contacted police on December 3, 2012, and reported
that his daughter revealed that Appellant had sexually assaulted her. The
affidavit states that Appellant
had gone into her room[2] on 4–5 occasions during the late night
hours. [Appellant] during the last time he came into her room
had pulled her panties and pajamas down, taking them both
down by pulling one of the legs of her pajamas off. [Appellant]
was licking and kissing her “down there” and that [Appellant]
had hurt her vaginal area buy [sic] penetrating her when he was
down there.
Affidavit of Probable Cause, 1/31/13, at 1.
On April 12, 2013, Appellant pled guilty pursuant to a negotiated plea
to IDSI at count three “with the Commonwealth agreeing not to seek the
mandatory minimum sentence of ten years; and further, that the
Commonwealth will stand mute at the time of sentencing.” N.T. (Guilty
Plea), 4/12/13, at 3. In addition, the Commonwealth sought nolle prosequi,
which the trial court entered, of all remaining charges. The Sexual
Offenders Assessment Board (“SOAB”) determined on July 30, 2013, that
Appellant met the criteria to be designated a Sexually Violent Predator
(“SVP”). Following an SVP hearing, the trial court designated Appellant an
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2
The record does not reveal Appellant’s relationship to the victim’s family.
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SVP on October 8, 2013. Also on that date, the trial court sentenced
Appellant to a term of incarceration of ten to twenty years for IDSI, to run
consecutively to the unrelated sentence Appellant was currently serving at
that time. On October 17, 2013, Appellant filed a motion to reconsider his
sentence, which the trial court denied on November 19, 2013. Appellant did
not file an appeal.
On November 12, 2014, Appellant filed a timely pro se PCRA petition.
The PCRA court appointed counsel, who filed an amended petition on April
29, 2015. The PCRA court conducted an evidentiary hearing on July 16,
2015, and thereafter denied Appellant’s PCRA petition on July 21, 2015.
Appellant filed a timely notice of appeal. Both Appellant and the PCRA court
complied with Pa.R.A.P. 1925.
As noted, Appellant’s counsel filed an application to withdraw as
counsel and thereafter filed a document purporting to be a Turner/Finley
“no merit letter.”3 Prior to addressing the merits of the appeal, we must
review counsel’s compliance with the procedural requirements for
withdrawing as counsel. Commonwealth v. Daniels, 947 A.2d 795, 798
(Pa. Super. 2008). We have explained:
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3
While the Turner/Finley filing is more akin to a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), because an Anders brief provides
greater protection to a defendant, we may accept it in lieu of a
Turner/Finley “no-merit” letter. Commonwealth v. Reed, 107 A.3d 137,
139 n.5 (Pa. Super. 2014). Based upon our disposition in this case, we
admonish counsel to utilize the proper procedural construct in the future.
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Counsel petitioning to withdraw from PCRA representation must
proceed . . . under [Commonwealth v.] Turner, [544 A.2d 927(1988)], and [Commonwealth v.] Finley, [550 A.2d 213(1988)] and . . . 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.
* * *
Where 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) (internal
citations omitted) (quoting Commonwealth v. Wrecks, 931 A.2d 717, 721
(Pa. Super. 2007)).
Here, counsel described the extent of her review, evaluated the issues,
and concluded that the appeal is frivolous. In addition, counsel has included
a copy of a letter sent to Appellant, a copy of her petition to withdraw, and a
copy of the “no-merit” Turner/Finley brief. However, counsel’s letter to
Appellant contains an inartfully worded proviso concerning his rights in lieu
of representation, which has resulted in the provision of inaccurate
information to Appellant.
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Appellate counsel’s letter to Appellant states, “Should the Superior
Court of Pennsylvania grant my request to withdraw as counsel, you
have the right to proceed with your appeal with other new counsel
or pro se (which means on your own without counsel).” Application to
Withdraw as Counsel, 11/23/15, Exhibit A (emphasis in original). This
statement improperly conveys to Appellant the conclusion that he cannot
proceed pro se or by privately retained counsel unless, and until, this Court
rules on counsel’s withdrawal request. That is incorrect.
Daniels clarified that
PCRA counsel must contemporaneously forward to the petitioner
a copy of the application to withdraw, which must include (i) a
copy of both the “no-merit” letter, and (ii) a statement advising
the PCRA petitioner that, in the event the trial court grants the
application of counsel to withdraw, the petitioner has the right to
proceed pro se, or with the assistance of privately retained
counsel.
Daniels, 947 A.2d at 798 (emphasis added) (quoting Commonwealth v.
Friend, 896 A.2d 607 (Pa. Super. 2006) (abrogated in part by
Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009)).4
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4
Friend imposed counsel’s additional notice requirements to his client
similar to the procedure required to withdraw on direct appeal. While former
Chief Justice Castille noted in Pitts that this Court is not authorized to craft
procedural rules, the Pitts Court did not overturn that aspect of Friend.
Pitts, 981 A.2d at 881 (Castile, C.J., concurring). This Court thereafter
clarified that Friend’s additional procedural notice requirements remained
applicable during collateral review. Commonwealth v. Widgins, 29 A.3d
816 (Pa. Super. 2011); see also Commonwealth v. Freeland, 106 A.3d
768, 774–775 (Pa. Super. 2014) (procedural requirements of Friend remain
(Footnote Continued Next Page)
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In the case sub judice, counsel utilized language that is peculiar to the
procedure at the common pleas court level when counsel seeks to withdraw,
without adjusting it to the posture of the case at the appellate level. By
advising Appellant that he may proceed either pro se or with private counsel
only if, and after, we grant counsel’s petition to withdraw, Appellant will lose
the very right that counsel is obligated to inform her client that he retains.
Thus, we clarify, 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, inter alia, 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. This is not a new requirement; it is simply clarification of
long-standing procedure.
Counsel’s letter to Appellant renders her attempt to withdraw as
counsel defective under relevant case law prescribing the proper procedure
for withdrawal in a collateral appeal. As a result of counsel’s misstatement,
we conclude that the petition to withdraw is deficient, and we deny it at this
time.
_______________________
(Footnote Continued)
applicable during collateral review); Commonwealth v. Rykard, 55 A.3d
1177 (Pa. Super. 2012) (same).
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Counsel is hereby instructed either to file an advocate’s brief or to
refile her “no-merit” letter under Turner/Finley. If she chooses the latter,
her letter to Appellant shall provide, inter alia, accurate notice of Appellant’s
immediate right to proceed pro se or with private counsel. Counsel’s
advocate brief or revised petition to withdraw shall be filed within thirty days
of the date of this decision. If counsel files a revised petition to withdraw
and Turner/Finley brief, Appellant shall have thirty days from receipt of the
revised petition to file a pro se brief or a brief by newly retained private
counsel, if he so chooses. The Commonwealth will then have thirty days to
file a responsive brief.
Petition to withdraw as counsel denied. Panel Jurisdiction retained.
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