Com. v. Barrett, O.

• Court: Superior Court of Pennsylvania
• Decided: September 29, 2022
• Docket: 2010 EDA 2021
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. J-S31042-22

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(unpublished memorandum).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

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).

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.

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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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