J-S46043-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : FRANK CURRAN, : : Appellant : No. 357 MDA 2014
Appeal from the Order entered on February 10, 2014 in the Court of Common Pleas of Lackawanna County, Criminal Division, No(s): CP-35-CR-0001004-2010; CP-35-CR-0001005-2010
BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 11, 2014
Frank Curran ( Curran ) appeals from the Order dismissing his Petition
for relief filed pursuant to the Post Conviction Relief Act ( PCRA ).1 We
reverse and remand for further proceedings.
Curran was arrested and charged with crimes related to his assault of
three minor females, two of whom were fourteen at the time of the assault,
and a third who was between the ages of ten and fifteen when the indecent
contact occurred. Curran entered a guilty plea to one count of aggravated
indecent assault, and a plea of nolo contendere to two counts of attempted
indecent assault. The trial court sentenced Curran to an aggregate prison
term of eight years and nine months to nineteen years. On appeal, this
Court affirmed Curran s judgment of sentence. Commonwealth v. Curran,
1 42 Pa.C.S.A. §§ 9541-9546. J-S46043-14
55 A.3d 127 (Pa. Super. 2012). Curran did not file a petition for allowance
of appeal to the Pennsylvania Supreme Court.
On June 17, 2013, Curran filed the instant Petition for relief under the
PCRA. Counsel was appointed and, on December 6, 2012, Curran s counsel
filed a Petition to Withdraw from representation and a No-Merit Letter,
purportedly in compliance with Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
(en banc). On January 15, 2014, the PCRA court dismissed Curran s PCRA
Petition without an evidentiary hearing. One day later, the PCRA court
entered an Order granting counsel s Petition to Withdraw. On February 14,
2014, Curran, pro se, filed the instant timely appeal. Upon the appointment
of counsel, Curran filed a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of Matters Complained of on Appeal.
Curran presents the following claims for our review:
A. Whether [Curran s] statutory and/or due process rights were violated since no evidentiary hearing was held related to [Curran s] Petition for Post Conviction Relief when [Curran] maintains he did not receive notice of court[-]appointed counsel s [Petition] to Withdraw and no-merit letter prior to dismissal by the PCRA court?
B. Whether the PCRA Court s dismissal of [Curran s] PCRA [Petition] was free from legal error since all issues raised in [Curran s] pro se Petition were not addressed in PCRA counsel s no-merit letter or in the PCRA court s January 14, 2014 Order?
Appellant s Brief at 4.
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Curran first claims that the PCRA court improperly dismissed his PCRA
Petition without a hearing, where he did not receive a copy of counsel s
Petition to Withdraw or No-Merit Letter. Id. at 10. As such, Curran argues,
his counsel failed to meet the procedural requirements for withdrawal from
representation. Id. According to Curran, the PCRA court explained in its
Order dismissing his PCRA Petition that Pa.R.Crim.P. 907 notice was not
necessary since Curran s counsel had filed a No-Merit Letter. Id. at 10-11
n.3. Curran claims that the PCRA court erred in not providing Pa.R.Crim.P.
907 notice because he did not receive a copy of the No-Merit Letter. Id. at
10-11.
An appellate court s standard of review regarding an order denying a
PCRA petition is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Kretchmar, 971 A.2d 1249, 1251 (Pa. Super. 2009). The PCRA court s
findings will not be disturbed unless there is no support for the findings in
the certified record. Commonwealth v. Treadwell, 911 A.2d 987, 989
(Pa. Super. 2006).
In addressing Curran s claim, we are cognizant that the Turner/Finley
decisions provide the manner for post-conviction counsel to withdraw from
representation. Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa.
Super. 2013)
The holdings of those cases mandate an independent review of the record by competent counsel before a PCRA court or
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appellate court can authorize an attorney s withdrawal. The necessary independent review requires counsel to file a no- merit letter detailing the nature and extent of his review and list each issue the petitioner wishes to have examined, explaining why those issues are meritless. The PCRA court, or an appellate court if the no-merit letter is filed before it, see Turner, supra, then must conduct its own independent evaluation of the record and agree with counsel that the petition is without merit. See [Commonwealth v.] Pitts, [981 A.2d 875,] 876 n.1 [(Pa. Super. 2008)].
In Commonwealth v. Friend, 2006 PA Super 70, 896 A.2d 607 (Pa. Super. 2006) abrogated in part by Pitts, supra, this Court imposed additional requirements on counsel that closely track the procedure for withdrawing on direct appeal. Pursuant to Friend, counsel is required to contemporaneously serve upon his client his no-merit letter and application to withdraw along with a statement that if the court granted counsel s withdrawal request, the client may proceed pro se or with a privately retained attorney. Though Chief Justice Castille noted in Pitts that this Court is not authorized to craft procedural rules, the Court did not overturn this aspect of Friend as those prerequisites did not apply to the petitioner in Pitts. See Pitts, supra at 881 (Castille, C.J., concurring).
Id. (footnote omitted).
Here, Curran claims that counsel failed to serve him with a copy of the
No-Merit Letter and Petition to Withdraw. at 10-11. Our
review discloses that counsel sent Curran a letter notifying Curran of
counsel s intention to file Petition to Withdraw and No-Merit Letter. There is
no indication that a copy of the Petition and No-Merit Letter were included
with the letter. Counsel s Petition to Withdraw does not state that counsel
provided Curran with a copy of the Petition and No-Merit letter. See Petition
to Withdraw, 12/6/13. There is no record evidence that counsel complied
with the requirements of Turner/Finley and Friend, as explained in
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Rykard. Accordingly, we conclude that the PCRA court erred in granting
Curran s PCRA counsel leave to withdraw.
The record further confirms that, as asserted in Curran s second claim,
counsel s No-Merit Letter failed to address an issue raised by Curran in his
PCRA Petition. See Appellant s Brief at 13. Turner and Finley require
counsel seeking leave to withdraw to list each of an appellant s claims, and
explain why each of those claims lack merit. Commonwealth v.
Free access — add to your briefcase to read the full text and ask questions with AI
J-S46043-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : FRANK CURRAN, : : Appellant : No. 357 MDA 2014
Appeal from the Order entered on February 10, 2014 in the Court of Common Pleas of Lackawanna County, Criminal Division, No(s): CP-35-CR-0001004-2010; CP-35-CR-0001005-2010
BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 11, 2014
Frank Curran ( Curran ) appeals from the Order dismissing his Petition
for relief filed pursuant to the Post Conviction Relief Act ( PCRA ).1 We
reverse and remand for further proceedings.
Curran was arrested and charged with crimes related to his assault of
three minor females, two of whom were fourteen at the time of the assault,
and a third who was between the ages of ten and fifteen when the indecent
contact occurred. Curran entered a guilty plea to one count of aggravated
indecent assault, and a plea of nolo contendere to two counts of attempted
indecent assault. The trial court sentenced Curran to an aggregate prison
term of eight years and nine months to nineteen years. On appeal, this
Court affirmed Curran s judgment of sentence. Commonwealth v. Curran,
1 42 Pa.C.S.A. §§ 9541-9546. J-S46043-14
55 A.3d 127 (Pa. Super. 2012). Curran did not file a petition for allowance
of appeal to the Pennsylvania Supreme Court.
On June 17, 2013, Curran filed the instant Petition for relief under the
PCRA. Counsel was appointed and, on December 6, 2012, Curran s counsel
filed a Petition to Withdraw from representation and a No-Merit Letter,
purportedly in compliance with Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
(en banc). On January 15, 2014, the PCRA court dismissed Curran s PCRA
Petition without an evidentiary hearing. One day later, the PCRA court
entered an Order granting counsel s Petition to Withdraw. On February 14,
2014, Curran, pro se, filed the instant timely appeal. Upon the appointment
of counsel, Curran filed a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of Matters Complained of on Appeal.
Curran presents the following claims for our review:
A. Whether [Curran s] statutory and/or due process rights were violated since no evidentiary hearing was held related to [Curran s] Petition for Post Conviction Relief when [Curran] maintains he did not receive notice of court[-]appointed counsel s [Petition] to Withdraw and no-merit letter prior to dismissal by the PCRA court?
B. Whether the PCRA Court s dismissal of [Curran s] PCRA [Petition] was free from legal error since all issues raised in [Curran s] pro se Petition were not addressed in PCRA counsel s no-merit letter or in the PCRA court s January 14, 2014 Order?
Appellant s Brief at 4.
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Curran first claims that the PCRA court improperly dismissed his PCRA
Petition without a hearing, where he did not receive a copy of counsel s
Petition to Withdraw or No-Merit Letter. Id. at 10. As such, Curran argues,
his counsel failed to meet the procedural requirements for withdrawal from
representation. Id. According to Curran, the PCRA court explained in its
Order dismissing his PCRA Petition that Pa.R.Crim.P. 907 notice was not
necessary since Curran s counsel had filed a No-Merit Letter. Id. at 10-11
n.3. Curran claims that the PCRA court erred in not providing Pa.R.Crim.P.
907 notice because he did not receive a copy of the No-Merit Letter. Id. at
10-11.
An appellate court s standard of review regarding an order denying a
PCRA petition is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Kretchmar, 971 A.2d 1249, 1251 (Pa. Super. 2009). The PCRA court s
findings will not be disturbed unless there is no support for the findings in
the certified record. Commonwealth v. Treadwell, 911 A.2d 987, 989
(Pa. Super. 2006).
In addressing Curran s claim, we are cognizant that the Turner/Finley
decisions provide the manner for post-conviction counsel to withdraw from
representation. Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa.
Super. 2013)
The holdings of those cases mandate an independent review of the record by competent counsel before a PCRA court or
-3- J-S46043-14
appellate court can authorize an attorney s withdrawal. The necessary independent review requires counsel to file a no- merit letter detailing the nature and extent of his review and list each issue the petitioner wishes to have examined, explaining why those issues are meritless. The PCRA court, or an appellate court if the no-merit letter is filed before it, see Turner, supra, then must conduct its own independent evaluation of the record and agree with counsel that the petition is without merit. See [Commonwealth v.] Pitts, [981 A.2d 875,] 876 n.1 [(Pa. Super. 2008)].
In Commonwealth v. Friend, 2006 PA Super 70, 896 A.2d 607 (Pa. Super. 2006) abrogated in part by Pitts, supra, this Court imposed additional requirements on counsel that closely track the procedure for withdrawing on direct appeal. Pursuant to Friend, counsel is required to contemporaneously serve upon his client his no-merit letter and application to withdraw along with a statement that if the court granted counsel s withdrawal request, the client may proceed pro se or with a privately retained attorney. Though Chief Justice Castille noted in Pitts that this Court is not authorized to craft procedural rules, the Court did not overturn this aspect of Friend as those prerequisites did not apply to the petitioner in Pitts. See Pitts, supra at 881 (Castille, C.J., concurring).
Id. (footnote omitted).
Here, Curran claims that counsel failed to serve him with a copy of the
No-Merit Letter and Petition to Withdraw. at 10-11. Our
review discloses that counsel sent Curran a letter notifying Curran of
counsel s intention to file Petition to Withdraw and No-Merit Letter. There is
no indication that a copy of the Petition and No-Merit Letter were included
with the letter. Counsel s Petition to Withdraw does not state that counsel
provided Curran with a copy of the Petition and No-Merit letter. See Petition
to Withdraw, 12/6/13. There is no record evidence that counsel complied
with the requirements of Turner/Finley and Friend, as explained in
-4- J-S46043-14
Rykard. Accordingly, we conclude that the PCRA court erred in granting
Curran s PCRA counsel leave to withdraw.
The record further confirms that, as asserted in Curran s second claim,
counsel s No-Merit Letter failed to address an issue raised by Curran in his
PCRA Petition. See Appellant s Brief at 13. Turner and Finley require
counsel seeking leave to withdraw to list each of an appellant s claims, and
explain why each of those claims lack merit. Commonwealth v.
Liebensperger, 904 A.2d 40, 45 n.3 (Pa. Super. 2006). Because counsel
failed to comply with this requirement, the PCRA court improperly granted
counsel s Petition to Withdraw on this basis as well.
Finally, as observed by Curran in his appellate brief, the PCRA court
failed to issue Pa.R.Crim.P. 907 notice2 of its intention to dismiss the PCRA
Petition without an evidentiary hearing. Appellant s Brief at 10. According
to Curran, the PCRA court s Order explained that it was not required to
2 Rule 907 provides, in relevant part, that
[i]f the [PCRA] judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice. The judge thereafter shall order the petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue.
Pa.R.Crim.P. 907(a).
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provide notice, as counsel had provided notice to Curran. Id. However, the
PCRA court s Order dismissing the PCRA Petition is not included in the
certified record. Notwithstanding, because we conclude that the PCRA court
improperly granted counsel s Petition to Withdraw, the PCRA court erred in
not providing Pa.R.Crim.P. 907 notice of its intention to dismiss the PCRA
Petition without a hearing.
In summary, the PCRA court erred in granting the Petition to Withdraw
filed by Curran s counsel, and in dismissing Curran s PCRA Petition without
the notice required by Pa.R.Crim.P. 907. We therefore reverse the Order of
the PCRA court and remand for further proceedings. On remand, should
counsel seek to withdraw, counsel is directed to comply
with the requirements of Turner/Finley and Friend, as explained in
Liebensperger. Further, the PCRA court is directed to comply with
Pa.R.Crim.P. 907, should it decide to dismiss Curran s PCRA Petition without
an evidentiary hearing.
Order reversed; case remanded for further proceedings consistent with
this Memorandum; Superior Court jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/11/2014
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