Com. v. O'Neal, T.

J-S43018-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS C. O’NEAL
Appellant No. 2509 EDA 2014
Appeal from the PCRA Order August 4, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002789-1994
BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.
MEMORANDUM BY PANELLA, J. FILED AUGUST 18, 2015
Appellant, Thomas C. O’Neal, appeals from the order dismissing his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”) as untimely.
In addition, O’Neal’s court-appointed counsel, Henry DiBenedetto Forrest,
Esquire, has filed an application to withdraw his appearance pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). After careful
review, we grant Attorney Forrest’s application to withdraw and affirm the
order dismissing O’Neal’s petition as untimely.
After pleading guilty to a charge of murder in the first degree, O’Neal
was sentenced to life in prison on July 19, 1995. O’Neal was 17 years old at
the time of the offense. Over the next 15 years, O’Neal filed several
unsuccessful PCRA petitions. This appeal concerns O’Neal’s fourth and fifth
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PCRA petitions, filed on August 21, 2012, and April 29, 2013,1 alleging that
he is entitled to relief pursuant to Miller v. Alabama, 132 S. Ct. 2455
(2012).
We begin by addressing Attorney Forrest’s petition to withdraw. Our
Supreme Court has summarized the procedure for withdrawal of court-
appointed counsel in collateral attacks on criminal convictions as follows.
Independent review of the record by competent counsel is
required before withdrawal is permitted. Such independent
review requires proof of:
1) A “no-merit” letter by PCRA counsel detailing the nature and
extent of his [or her] review;
2) A “no-merit” letter by PCRA counsel listing each issue the
petitioner wished to have reviewed;
3) The PCRA counsel’s “explanation”, in the “no-merit” letter, of
why the petitioner’s issues were meritless;
4) The PCRA court conducting its own independent review of the
record; and
5) The PCRA court agreeing with counsel that the petition was
meritless.
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1
O’Neal’s fifth petition was filed pro se while the PCRA court was considering
his fourth petition, but was subsequently amended by prior counsel to
merely provide a more detailed argument under Miller. It appears that the
PCRA court treated the amended fifth petition as an amendment to the
fourth petition. As the Commonwealth has not objected, and given our
resolution of the only issue raised in the fourth and amended fifth petitions,
we need not address the propriety of this procedure. (In actuality, the pro se
filing is nothing more than an unauthorized supplemental petition. See
Commonwealth v. Reid, 99 A.3d 427, 437 (Pa. 2014).)
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Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009) (citations
omitted). Additionally, this Court has added a requirement
that PCRA counsel who seeks to withdraw must
contemporaneously serve a copy on the petitioner of counsel’s
application to withdraw as counsel, and must supply to the
petitioner both a copy of the “no-merit” letter and a statement
advising the petitioner that, in the event that the court grants
the application of counsel to withdraw, he or she has the right to
proceed pro se or with the assistance of privately retained
counsel.
Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011)
(emphasis omitted; citation omitted). Counsel in this case has complied
with the mandates of Turner and Finley, as summarized in Pitts, as well as
complying with the mandate of Widgins. Thus, we must determine whether
we agree with counsel’s assessment of O’Neal’s claim.
Our Supreme Court has held that the right announced in Miller does
not apply retroactively. See Commonwealth v. Cunningham, 81 A.3d 1,
10 (Pa. 2013). We further note that this Court has held that a petitioner
cannot rely on Miller or 42 Pa.C.S.A. § 9545(b)(1)(iii) to establish
jurisdiction over an untimely PCRA petition. See Commonwealth v.
Seskey, 86 A.3d 237, 243 (Pa. Super. 2014). Thus, we concur with
counsel’s assessment that O’Neal’s sole issue on appeal is without merit.
Attorney Forrest has therefore established grounds for withdrawal.
Our independent review of the record does not reveal any other
meritorious issues. As we conclude that O’Neal’s issue on appeal does not
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have any merit, we grant permission to withdraw and affirm the order of the
PCRA court.
Order affirmed. Permission to withdraw as counsel granted.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2015
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