Com. v. Faison, N.

J-S42015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NAFIS ANTUAN FAISON,
Appellant No. 292 MDA 2017
Appeal from the PCRA Order January 25, 2017
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000147-2014
BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED JULY 13, 2017
Appellant, Nafis Antuan Faison, appeals pro se from the order entered
on January 25, 2017, dismissing his first petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We vacate and
remand.
On February 23, 2015, a jury found Appellant guilty of eight counts of
possession of a controlled substance with the intent to deliver, four counts of
simple possession, and four counts of criminal use of a communication
facility.1 On April 22, 2015, the trial court sentenced Appellant to serve an
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1
35 P.S. §§ 780-113(a)(30) and (16) and 18 Pa.C.S.A. § 7512(a),
respectively.
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aggregate term of 28 months to eight years in prison.2 We affirmed
Appellant’s judgment of sentence on May 9, 2016 and Appellant did not file a
petition for allowance of appeal with the Pennsylvania Supreme Court.
Commonwealth v. Faison, 151 A.3d 1140 (Pa. Super. 2016) (unpublished
memorandum) at 1-10.
On September 8, 2016, Appellant filed a timely, pro se PCRA petition.
The PCRA court then entered an order granting Appellant the right to
proceed in forma pauperis and appointing Gerald Lynch, Esquire (hereinafter
“Attorney Lynch”) as Appellant’s counsel during the PCRA proceedings.
Appellant’s Pro Se PCRA Petition, 9/8/16, at 1-9; PCRA Court Order,
9/15/16, at 1.
On December 20, 2016, Attorney Lynch filed a filed a no-merit letter
and a request to withdraw as counsel, pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc). However, and unrelated to Attorney
Lynch’s no-merit letter and request to withdraw, on December 30, 2016, the
PCRA court entered an order that: authorized the withdrawal of Attorney
Lynch and appointed Ryan Gardner, Esquire (hereinafter “Attorney
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2
As this Court explained, “[b]y amended [sentencing] order dated June 25,
2015, the [sentencing] court stated that the underlying sentence would
remain the same, but [that the sentencing court] was correcting a
miscalculation in the computation of the RRRI eligibility.” Commonwealth
v. Faison, 151 A.3d 1140 (Pa. Super. 2016) (unpublished memorandum) at
2-3.
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Gardner”) to represent Appellant. PCRA Court Order, 12/30/16, at 1. As
the PCRA court specified in its order, the change in counsel was done
because Attorney Lynch was “no longer handling conflict cases” and, as
such, Attorney Gardner was “reassigned as conflict counsel to represent
[Appellant].” Id.
Notwithstanding the change in counsel, on December 30, 2016, the
PCRA court acted upon prior counsel’s Turner/Finley letter and entered an
order notifying Appellant that it intended to dismiss Appellant’s PCRA
petition in 20 days, without holding a hearing. PCRA Court Order, 12/30/16,
at 1; see also Pa.R.Crim.P. 907(1). Then, on January 25, 2017 – with
Attorney Gardner not having filed anything in the matter – the PCRA court
entered an order that: 1) dismissed Appellant’s PCRA petition and 2)
granted the “motion to withdraw as counsel filed by [Attorney] Lynch.”
PCRA Court Order, 1/25/17, at 1. At this time, however, Attorney Lynch
was not Appellant’s counsel; rather, Attorney Gardner was Appellant’s
counsel of record.
Appellant filed a timely, pro se notice of appeal on February 16, 2017
and Appellant later filed a pro se brief to this Court, notwithstanding the fact
that Attorney Gardner was never granted leave to withdraw as Appellant’s
counsel. We now vacate and remand for further proceedings.
“[I]t is undisputed that first time PCRA petitioners have a rule-based
right to counsel.” Commonwealth v. Figueroa, 29 A.3d 1177, 1180 n.6
(Pa. Super. 2011). This right to counsel “exists throughout the
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post-conviction proceedings, including any appeal from [the] disposition of
the petition for post-conviction relief.” Commonwealth v. Quail, 729 A.2d
571, 573 (Pa. Super. 1999) (internal citations and quotations omitted); see
also Pa.R.Crim.P. 904(C). Moreover, as our Supreme Court has explained,
“[t]he denial of PCRA relief cannot stand unless the petitioner was afforded
the assistance of counsel.” Commonwealth v. Albrecht, 720 A.2d 693,
699 (Pa. 1998). Thus, we have held that “where an indigent, first-time
PCRA petitioner was denied his right to counsel – or failed to properly waive
that right – this Court is required to raise this error sua sponte and remand
for the PCRA court to correct that mistake.” Commonwealth v. Stossel,
17 A.3d 1286, 1290 (Pa. Super. 2011).
In this case, the PCRA considered a Turner/Finley “no-merit” letter
filed by Attorney Lynch after Attorney Lynch obtained leave to withdraw and
after the PCRA court appointed Attorney Gardner to be Appellant’s attorney.
This constitutes clear error, as the Turner/Finley procedures have no
meaning or purpose outside of a pending petition to withdraw as counsel.
Here, when the PCRA court considered Attorney Lynch’s Turner/Finley “no
merit” letter, there was no longer a pending petition to withdraw before the
PCRA court. As this Court has explained:
Counsel petitioning to withdraw from PCRA representation
must proceed . . . under [Turner/Finley. Under]
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
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case, listing the issues which the petitioner wants to have
reviewed, explaining why and how those issues lack merit,
and requesting permission to withdraw.
...
[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. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (internal
citations omitted).
Further, we have held that “the Turner/Finley ‘no-merit letter’ is []
intended to serve the same basic purpose as the [Anders v. California,
386 U.S. 738 (1967)] brief . . . i.e. to document the nature and extent of
counsel’s review of the record and to assist the court in determining whether
the issues sought to be raised are truly” of no merit. Commonwealth v.
Harris, 553 A.2d 428, 434 n.5 (Pa. Super. 1989).
At the time the PCRA court considered Attorney Lynch’s
Turner/Finley “no merit” letter, issued Appellant the Rule 907(1) notice,
dismissed Appellant’s PCRA petition, and “granted” Attorney Lynch’s petition
to withdraw as counsel, Attorney Lynch was no longer Appellant’s counsel.
Instead, Attorney Gardner was Appellant’s counsel – and, Attorney Gardner
never filed a petition to withdraw as counsel or submitted anything that
would have “detail[ed] the nature and extent” of his review of the case,
including any opinion or explanation as to the potential merits of any
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potential claim that Appellant sought to raise. Indeed, during the entirety of
Attorney Gardner’s representation of Appellant, Attorney Gardner never filed
a Turner/Finley “no merit” letter accompanied by a petition to withdraw, an
amended PCRA petition on Appellant’s behalf, or a response to the
“no-merit” letter filed by Attorney Lynch. See Commonwealth v. Powell,
787 A.2d 1017, 1019 (Pa. Super. 2001) (“When appointed, counsel's duty is
to either (1) amend the petitioner's pro se petition and present the
petitioner's claims in acceptable legal terms, or (2) certify that the claims
lack merit by complying with the mandates of Finley. If appointed counsel
fails to take either of these steps, our courts have not hesitated to find that
the petition was effectively uncounseled.”) (internal citations, quotations,
and footnote omitted).
We conclude that Attorney Gardner remains attached as counsel in this
matter and that the PCRA court effectively denied Appellant his rule-based
right to counsel. We therefore vacate the order dismissing Appellant’s PCRA
petition and remand this case to the PCRA court.3 On remand, Attorney
Gardner shall conduct a diligent review of the record and either (1) present
Appellant’s claims in acceptable legal terms (by way of an amended PCRA
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3
We express no opinion as to the merits of any substantive claim raised in
Appellant’s petition or in any forthcoming response to the “no-merit” letter
filed by Attorney Lynch. In addition, our ruling is without prejudice to the
submission, by Attorney Gardner, of his own Turner/Finley letter in the
event he determines, after a thorough review of the case, that there are no
meritorious claims that can be raised on behalf of Appellant.
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petition or a response to the “no-merit” letter filed by Attorney Lynch) or (2)
certify that Appellant’s claims lack merit by complying with the mandates of
Turner/Finley.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2017
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