Com. v. Barrett, O.

J-S31042-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ORVILLE BARRETT :
:
Appellant : No. 2010 EDA 2021
Appeal from the PCRA Order Entered October 6, 2021
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0002443-2016
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 29, 2022
Appellant Orville Barrett appeals from the order of the Court of Common
Pleas of Lehigh County denying his first petition pursuant to the Post-
Conviction Relief Act (PCRA).1 Counsel has filed a petition to withdraw his
representation after he was appointed for this collateral appeal. As Appellant
was never afforded the assistance of counsel in the preparation of his first
PCRA petition, we vacate the PCRA court’s order, deny counsel’s petition to
withdraw, and remand for further proceedings.
On July 20, 2017, after a bench trial, Appellant was convicted of third-
degree murder. On August 24, 2017, the trial court sentenced Appellant to
twenty to forty years’ imprisonment. Appellant did not file a direct appeal.
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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On February 6, 2018, Appellant filed a pro se PCRA petition. After the
PCRA court appointed counsel, the PCRA court reinstated Appellant’s right to
file a direct appeal nunc pro tunc without objection from the Commonwealth.
Once Appellant filed his direct appeal nunc pro tunc, this Court affirmed
the judgment of sentence on February 21, 2019. See Commonwealth v.
Barrett, 1515 EDA 2018, 2019 WL 764305 (Pa.Super. Feb. 21, 2019)
(unpublished memorandum). Appellant did not file a petition for allowance of
appeal with the Supreme Court.
On November 1, 2020, Appellant filed the instant PCRA petition, in which
he acknowledged his petition was untimely, but asserted he could meet a
PCRA timeliness exception with the presentation of after-discovered evidence
and his assertion of “actual innocence.” Appellant also made requests for the
appointment of counsel and to proceed in forma pauperis.
On December 14, 2020, the PCRA judge, the Honorable Judge Kelly L.
Banach issued notice of her intent to dismiss the appeal without a hearing
pursuant to Pa.R.Crim.P. 907 as she found Appellant’s petition was untimely
filed. Judge Banach retired at the end of 2020 while Appellant’s petition was
pending. On September 21, 2021, Appellant filed a pro se notice of appeal.
The case was transferred to the Honorable James T. Anthony, who dismissed
Appellant’s petition on October 6, 2021.2
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2 Appellant prematurely filed his notice of appeal after the Rule 907 notice was
issued as the PCRA court had not yet filed a final, appealable order dismissing
(Footnote Continued Next Page)
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On December 10, 2021, this Court issued a per curiam order directing
the PCRA court to determine Appellant’s eligibility for court-appointed counsel.
Order, 12/10/21, at 1 (citing Pa.R.Crim.P. 904(C)). In an order entered
February 7, 2021, the trial court appointed Robert E. Sletvold, Esq. to
represent Appellant on collateral appeal. Attorney Sletvold subsequently filed
a petition to withdraw along with an accompanying brief pursuant to Anders
v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
We initially note that counsel mistakenly believed that he was required
to file an Anders brief in seeking to withdraw on collateral appeal, as the
appropriate filing to withdraw from PCRA representation is a Turner/Finley
“no-merit” letter. See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d
927 (1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en
banc). See also Commonwealth v. Karanicolas, 836 A.2d 940, 947
(Pa.Super. 2003) (clarifying that procedure set forth in Anders is not the
appropriate vehicle for withdrawing from PCRA representation).
Nevertheless, since an Anders brief provides a defendant greater
protection, we may accept an Anders brief in lieu of a Turner/Finley letter.
Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa.Super. 2011).
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the petition. However, we may construe the appeal as timely filed since the
PCRA court order entered an order denying the petition. See Pa.R.A.P. 905(5)
(“A notice of appeal filed after the announcement of a determination but
before the entry of an appealable order shall be treated as filed after such
entry on the day thereof”); Commonwealth v. Swartzfager, 59 A.3d 616,
618 n.3 (Pa.Super. 2012) (declining to quash premature notice of appeal filed
after entry of Rule 907 notice but before final order dismissing PCRA petition).
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Counsel seeking to withdraw on collateral appeal must follow the
procedure outlined in Turner/Finley. Relevantly:
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. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007) (citations
omitted).
In the instant case, counsel has satisfied the technical requirements of
Turner/Finley. Specifically, he (1) set forth the issues Appellant wished to
have reviewed; (2) stated that he conducted a thorough review of the record
and applicable law; (3) determined there are no non-frivolous claims Appellant
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can raise; and (4) explained why Appellant’s claims are meritless. Moreover,
counsel has verified that he mailed Appellant a letter informing him of his
intention to seek permission to withdraw from representation, as well as
Appellant’s rights in lieu of representation. As such, we may proceed to an
independent review of the appeal.
Counsel asserts that there is no merit to the instant appeal as
Appellant’s underlying PCRA petition was untimely. We acknowledge that “the
PCRA's timeliness requirements are jurisdictional in nature and must be
strictly construed; courts may not address the merits of the issues raised in a
petition if it is not timely filed.” Commonwealth v. Walters, 135 A.3d 589,
591 (Pa.Super. 2016) (citations omitted).
Generally, a PCRA petition “including a second or subsequent petition,
shall be filed within one year of the date the judgment of sentence becomes
final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final at
the conclusion of direct review or the expiration of the time for seeking the
review. 42 Pa.C.S.A. § 9545(b)(3).
However, Pennsylvania courts may consider an untimely PCRA petition
if the petitioner explicitly pleads and proves one of the three exceptions
enumerated in Section 9545(b)(1), which include: (1) the petitioner's inability
to raise a claim as a result of governmental interference; (2) the discovery of
previously unknown facts or evidence that would have supported a claim; or
(3) a newly-recognized constitutional right that has been held to apply
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retroactively by the Supreme Court of the United States or the Supreme Court
of Pennsylvania. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
In this case, this Court affirmed the judgment of sentence on February
21, 2019. Appellant did not file a petition for allowance of appeal with the
Supreme Court. As such, the judgment of sentence became final on March 25,
2019 after the time period for Appellant to file an appeal to the Supreme Court
of the United States had expired. See Pa.R.A.P. 1113 (providing that a petition
for allowance of appeal must be filed with the Supreme Court within 30 days
of this entry of this Court’s order). Thus, Appellant had to file a PCRA petition
by March 25, 2020. As Appellant did not file this petition until November 1,
2020, the instant petition is facially untimely.
However, while the PCRA court dismissed Appellant’s petition without a
hearing after finding that Appellant failed to meet any of the PCRA timeliness
exceptions, the PCRA court never addressed Appellant’s request for counsel
to assist him in the presentation of his first PCRA petition. See
Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa.Super. 2013) (citing
Commonwealth v. Karanicolas, 836 A.2d 940, 944 (Pa.Super. 2003)
(“when a PCRA petitioner's direct appeal rights are reinstated nunc pro tunc
in his first PCRA petition, a subsequent PCRA petition will be considered a first
PCRA petition for timeliness purposes.”)
Our rules of criminal procedure provide that “when an unrepresented
defendant satisfies the judge that the defendant is unable to afford or
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otherwise procure counsel, the judge shall appoint counsel to represent the
defendant on the defendant's first petition for post-conviction collateral
relief.” Pa.R.Crim.P. 904(B) (emphasis added). The rules of procedure
requiring the appointment of counsel apply to PCRA cases. Pa.R.Crim.P. 900;
Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 699 (1998).
In similar circumstances, our Supreme Court has held that “Rule 904
mandates that an indigent petitioner, whose first PCRA petition appears
untimely, is entitled to the assistance of counsel in order to determine whether
any of the exceptions to the one-year time limitation apply.” Commonwealth
v. Smith, 572 Pa. 572, 584, 818 A.2d 494, 500–501 (2003). The Supreme
Court agreed with this Court's holding in Commonwealth v. Ferguson, 772
A.2d 177, 178 (Pa. Super. 1998), which recognized that the PCRA time bar
“must yield” to a petitioner’s right to counsel for a first PCRA petition pursuant
to Rule 904. Smith, 818 A.2d at 500 (citing Ferguson, 722 A.2d at 178).
The Supreme Court explained that an indigent first-time PCRA petition
may not know of the necessity of demonstrating the existence of an exception
to the time-bar if unrepresented by counsel. Id. at 585, 818 A.2d at 501.
Moreover, the Supreme Court noted that “even if the petitioner was aware of
the need to prove an exception to the time-bar, appointed counsel would be
more able to investigate underlying facts and explore whether such facts are
sufficient to prove that one of the exceptions to the one-year time limitation
applies.” Id.-7-
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As such, in this case, after Appellant’s direct appeal rights were
reinstated nunc pro tunc and this Court affirmed the judgment of sentence,
Appellant’s subsequent PCRA petition should have been characterized as his
first PCRA petition. See Turner, supra.
Thus, it was not sufficient for the PCRA court to appoint counsel to
represent Appellant on appeal after the denial of his petition as Appellant had
never been afforded representation to present his first PCRA petition. As an
indigent petitioner, Appellant was entitled to the appointment of counsel to
represent him in the preparation of the petition and to assess whether any of
the PCRA timeliness exceptions were applicable. See Smith, supra.Accordingly, we vacate the PCRA court’s order denying Appellant’s
petition, deny counsel’s request to withdraw, and remand for counsel to
address the applicability of the Section 9545(b) timeliness exceptions with
Appellant.
Order vacated. Petition to withdraw denied. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2022
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