Com. v. Ransome, I.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ISAIAH RANSOME, : No. 3292 EDA 2017
:
Appellant :
Appeal from the PCRA Order, September 6, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0005859-2007
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 20, 2018
Isaiah Ransome appeals from the September 6, 2017 order entered by
the Court of Common Pleas of Philadelphia County denying his petition for
relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. After careful review, we remand with instructions.
The PCRA court provided the following synopsis of the procedural
history of this case:
On February 7, 2007, police arrested and charged
[a]ppellant [] with numerous offenses stemming
from a shooting and robbery. On December 14,
2012, a jury convicted [a]ppellant of second-degree
murder and related offenses. On June 21, 2013, the
Honorable Benjamin Lerner sentenced [a]ppellant to
life imprisonment without the possibility of parole.
. . . On December 18, 2014, the Superior Court
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affirmed the judgment of sentence.[1] On June 29,
2015, the [Pennsylvania] Supreme Court denied
[a]ppellant’s Petition for Allowance of Appeal.[2]
On March 22, 2016, [a]ppellant filed [a] PCRA
petition. On April 28, 2016, [a]ppellant filed []
another PCRA petition. After appointment of counsel
[David Rudenstein, Esq.], on June 5, 2017, counsel
filed a Finley[3] letter [and petition to withdraw].
On June 6, 2017, [the PCRA court] submitted an
intent to dismiss notice under [Pa.R.Crim.P.] 907.
On September 6, 2017, [the PCRA court] formally
dismissed [a]ppellant’s PCRA petition for lack of
merit. On September 26, 2017, [a]ppellant filed a
timely notice of appeal. On October 6, 2017, [the
PCRA court] ordered [a]ppellant pursuant to
Pa.R.A.P. 1925(b) to file with the [c]ourt a Concise
Statement of Matters Complained of on Appeal. On
November 9, 2017, [a]ppellant filed a Statement of
Errors Complained of on Appeal.
PCRA court opinion, 1/16/18 at 1-2. The PCRA court filed an opinion
pursuant to Pa.R.A.P. 1925(a) on January 16, 2018. On January 22, 2018,
the PCRA court granted Attorney Rudenstein’s petition to withdraw.
Appellant raises the following issues for our review:
I. Whether the PCRA Court erred by failing to
provide [a]ppellant additional time to respond
to PCRA Counsel’s Finley letter and 907 Notice
prior to the dismissal the PCRA in violation of
the Due Process Clause?
1 Commonwealth v. Ransome, 116 A.3d 693 (Pa.Super. 2014)
(unpublished memorandum).
2 Commonwealth v. Ransome, 117 A.3d 1281 (Pa. 2015).
3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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II. Whether PCRA Counsel rendered ineffective
assistance of counsel?
Appellant’s brief at iii.
When reviewing a denial of relief pursuant to the PCRA, our standard
of review is as follows:
whether the record supports the PCRA court’s
determination and whether the PCRA court’s decision
is free of legal error. Commonwealth v. Phillips,
31 A.3d 317, 319 (Pa.Super. 2011) (citing
Commonwealth v. Berry, 877 A.2d 479, 482
(Pa.Super. 2005)). The PCRA court’s findings will
not be disturbed unless there is no support for the
findings in the certified record. Id. (citing
Commonwealth v. Carr, 768 A.2d 1164, 1166
(Pa.Super. 2001)).
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014).
As part of his first issue raised on appeal, appellant contends that he
never received a copy of Attorney Rudenstein’s Turner/Finley no-merit
letter. (Appellant’s brief at 3.) Indeed, the certificate of service attached to
Attorney Rudenstein’s no-merit letter and petition to withdraw indicates that
Attorney Rudenstein only served the Commonwealth. In its Rule 1925
opinion, the PCRA court notes that after receiving a letter from appellant in
which appellant indicated that he did not receive a Turner/Finley no-merit
letter, the PCRA court continued its dismissal of appellant’s appeal until
July 17, 2017. (PCRA court opinion, 1/16/18 at 5.) The PCRA court further
notes that on July 17, 2017, it required Attorney Rudenstein to re-send his
Turner/Finley no-merit letter to appellant, and that on September 4, 2017,
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Attorney Rudenstein informed the PCRA court that “he sent a Finley letter
back in July and just to be sure, he ‘recently sent another copy’ to
[a]ppellant.” (Id.)
An attorney seeking to withdraw after filing a Turner/Finley no-merit
letter is required to provide the PCRA petitioner with a copy of the no-merit
letter, a copy of the attorney’s petition to withdraw, and a statement
advising the petitioner of his rights and options following the filing of the
no-merit letter. Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super.
2007), citing Commonwealth v. Friend, 896 A.2d 607, 615 (Pa.Super.
2006). “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.” Wrecks, 931
A.2d at 721, citing Commonwealth v. Mosteller, 633 A.2d 615, 617
(Pa.Super. 1993). After denying counsel’s petition to withdraw, the court
must then “take appropriate steps, such as directing counsel to file a proper
Turner/Finley request or an advocate’s brief.” Wrecks, 931 A.2d at 721,
citing Commonwealth v. Karanicolas, 836 A.2d 940, 948 (Pa.Super.
2003).
Here, there is no evidence of record that Attorney Rudenstein sent
appellant a copy of his Turner/Finley no-merit letter and his petition to
withdraw. We agree with the Commonwealth that this case should be
remanded so that the PCRA court may determine if appellant received a
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copy of Attorney Rudenstein’s Turner/Finley no-merit letter and petition to
withdraw. (See Commonwealth’s brief at 7-8.) The PCRA court shall make
a determination of record within 60 days of the filing of this memorandum.
Should the PCRA court determine that appellant did not receive a copy of the
no-merit letter and petition to withdraw, appellant shall have 30 days from
receipt of the petition to file a pro se brief or a brief by newly retained
private counsel if he chooses to do so. The Commonwealth shall then have
30 days to file a responsive brief. See Commonwealth v. Muzzy, 141
A.3d 509, 512 (Pa.Super. 2016).
Case remanded with instructions. Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/18
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