J-S67010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAVIER RAMOS : : Appellant : No. 470 EDA 2018
Appeal from the PCRA Order January 17, 2018 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0002292-2012, CP-39-CR-0002296-2012
BEFORE: OTT, J., NICHOLS, J., and STRASSBURGER, J.
MEMORANDUM BY OTT, J.: FILED JANUARY 11, 2019
Javier Ramos appeals, pro se, from the order entered January 17, 2018,
in the Lehigh County Court of Common Pleas, dismissing without a hearing his
first petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 Ramos seeks relief from the judgment of sentence of an aggregate
term of 18 to 42 years’ imprisonment imposed on January 31, 2013, following
his jury conviction of burglary, criminal conspiracy,2 and related charges in
the above-captioned consolidated cases. On appeal, Ramos asserts, inter alia,
____________________________________________
Retired Senior Judge assigned to the Superior Court.
1 See 42 Pa.C.S. §§ 9541-9546.
2 See 18 Pa.C.S. §§ 3502 and 903, respectively. J-S67010-18
the ineffectiveness of appointed counsel, who was permitted to withdraw in
the PCRA court after filing a Turner/Finley3 “no merit” letter. Because we
conclude counsel’s “no merit” letter was deficient such that Ramos was denied
the right to effective counsel regarding his first PCRA petition, we vacate the
order denying PCRA relief, and remand this case for the appointment of new
PCRA counsel.
The facts underlying Ramos’ convictions are well known to the parties,
and we need not reiterate them herein. In summary, Ramos and a co-
defendant, David Lafantano, committed a series of burglaries in Lehigh and
Northampton Counties in February and March of 2012. Ramos was originally
charged, at Docket No. 2292-2012, with a March 12, 2012, attempted break-
in at a home in Breiningsville, Pennsylvania. That arrest led to information
regarding other crimes, and Ramos was subsequently charged at Docket No.
2296-2012, with burglaries committed in Bethlehem and Upper Saucon
Township in February of 2012. The cases were consolidated for trial. On
December 12, 2012, a jury found Ramos guilty of four offenses at Docket No.
2292-2012, including attempted burglary,4 and seven offenses at Docket No.
2296-2012, including burglary, receiving stolen property (two counts), and
3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
4 See 18 Pa.C.S. §§ 901/3502(a).
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criminal conspiracy.5 On January 31, 2013, the trial court imposed an
aggregate sentence of 18 to 42 years’ imprisonment. Ramos filed a post-
sentence motion, which the court denied, followed by a timely appeal. On
November 25, 2014, a panel of this Court affirmed the judgment of sentence
on direct appeal, and the Pennsylvania Supreme Court denied his petition for
allowance of appeal. See Commonwealth v. Ramos, 113 A.3d 357 (Pa.
Super. 2014) (unpublished memorandum), appeal denied, 117 A.3d 296 (Pa.
2015).
While his direct appeal was pending, Ramos filed a pro se PCRA petition
in January of 2014, followed by an amended petition in August of 2014. The
trial court entered an order staying the proceedings until the completion of his
direct appeal. In March of 2016, Ramos filed a pro se petition for writ of
mandamus. Thereafter, on April 12, 2016, the trial court entered an order
lifting the stay on Ramos’ PCRA proceedings, and appointing counsel to
represent him. On April 19, 2016, the court appointed new PCRA counsel due
to a conflict with prior counsel, and directed counsel to file either an amended
petition or a Turner/Finley “no merit” letter within 60 days. Nevertheless,
on June 3, 2016, Ramos filed another pro se amended petition. On June 8,
2016, the PCRA court dismissed Ramos’ pro se filing, since he was represented
by counsel, and forwarded a copy to appointed counsel. See Order, 6/8/2016.
5 See 18 Pa.C.S. §§ 3502(a), 3925(a), and 903(a), respectively.
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Subsequently, on June 15, 2016, counsel filed a motion to withdraw and
accompanying Turner/Finley “no merit” letter. Ramos then filed a request
for a Grazier6 colloquy, in which he stated he had received counsel’s motion
to withdraw, and counsel had “informed [him] to proceed pro se on his instant
PCRA Petition.” [Ramos’] Request for Grazier Colloquy, 7/6/2016, at ¶ 3. On
August 2, 2016, the PCRA court conducted a hearing on counsel’s petition to
withdraw and Ramos’ request to proceed pro se. That same day, the court
granted counsel permission to withdraw, and entered an order notifying
Ramos of its intent to dismiss his petition without first conducting an
evidentiary hearing pursuant to Pa.R.Crim.P. 907. After requesting and
receiving the transcripts from his trial, Ramos filed a response to the court’s
Rule 907 notice on January 10, 2018. Subsequently, on January 17, 2018,
the PCRA court entered an order denying Ramos relief. This timely appeal
followed.7, 8 ____________________________________________
6 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
7 On January 30, 2018, the PCRA court directed Ramos to file a concise statement of errors complained of on appeal. When he had not done so by March 8, 2018, the PCRA court filed an opinion, concluding all of Ramos’ issues were waived. See PCRA Court Opinion, 3/8/2018. However, on April 3, 2018, Ramos filed an application in this Court seeking leave to file a concise statement nunc pro tunc, and attached thereto a Rule 1925(b) statement. On April 23, 2018, this Court remanded the record to the PCRA court to prepare a supplemental opinion in response to Ramos’ concise statement. The PCRA court filed a supplemental opinion on May 4, 2018.
8We note Ramos was charged and tried under two docket numbers, and his PCRA petition and notice of appeal therefrom lists both dockets. In June of
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Our review of an order denying PCRA relief is “limited to a determination
of whether the record supports the PCRA court’s factual findings and whether
its legal conclusions are free from error.” Commonwealth v. Williams, 141
A.3d 440, 452 (Pa. 2016).
On appeal, Ramos argues PCRA counsel was ineffective for submitting a
defective “no merit” letter, and the PCRA court abused its discretion when it
permitted appointed counsel to withdraw. See Ramos’ Brief at 23-25, 28-29.
We agree.9
When counsel seeks to withdraw from PCRA representation, pursuant to
Turner/Finley and their progeny, counsel must first conduct an independent
review of the record. Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa.
2009).
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, ____________________________________________
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J-S67010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAVIER RAMOS : : Appellant : No. 470 EDA 2018
Appeal from the PCRA Order January 17, 2018 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0002292-2012, CP-39-CR-0002296-2012
BEFORE: OTT, J., NICHOLS, J., and STRASSBURGER, J.
MEMORANDUM BY OTT, J.: FILED JANUARY 11, 2019
Javier Ramos appeals, pro se, from the order entered January 17, 2018,
in the Lehigh County Court of Common Pleas, dismissing without a hearing his
first petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 Ramos seeks relief from the judgment of sentence of an aggregate
term of 18 to 42 years’ imprisonment imposed on January 31, 2013, following
his jury conviction of burglary, criminal conspiracy,2 and related charges in
the above-captioned consolidated cases. On appeal, Ramos asserts, inter alia,
____________________________________________
Retired Senior Judge assigned to the Superior Court.
1 See 42 Pa.C.S. §§ 9541-9546.
2 See 18 Pa.C.S. §§ 3502 and 903, respectively. J-S67010-18
the ineffectiveness of appointed counsel, who was permitted to withdraw in
the PCRA court after filing a Turner/Finley3 “no merit” letter. Because we
conclude counsel’s “no merit” letter was deficient such that Ramos was denied
the right to effective counsel regarding his first PCRA petition, we vacate the
order denying PCRA relief, and remand this case for the appointment of new
PCRA counsel.
The facts underlying Ramos’ convictions are well known to the parties,
and we need not reiterate them herein. In summary, Ramos and a co-
defendant, David Lafantano, committed a series of burglaries in Lehigh and
Northampton Counties in February and March of 2012. Ramos was originally
charged, at Docket No. 2292-2012, with a March 12, 2012, attempted break-
in at a home in Breiningsville, Pennsylvania. That arrest led to information
regarding other crimes, and Ramos was subsequently charged at Docket No.
2296-2012, with burglaries committed in Bethlehem and Upper Saucon
Township in February of 2012. The cases were consolidated for trial. On
December 12, 2012, a jury found Ramos guilty of four offenses at Docket No.
2292-2012, including attempted burglary,4 and seven offenses at Docket No.
2296-2012, including burglary, receiving stolen property (two counts), and
3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
4 See 18 Pa.C.S. §§ 901/3502(a).
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criminal conspiracy.5 On January 31, 2013, the trial court imposed an
aggregate sentence of 18 to 42 years’ imprisonment. Ramos filed a post-
sentence motion, which the court denied, followed by a timely appeal. On
November 25, 2014, a panel of this Court affirmed the judgment of sentence
on direct appeal, and the Pennsylvania Supreme Court denied his petition for
allowance of appeal. See Commonwealth v. Ramos, 113 A.3d 357 (Pa.
Super. 2014) (unpublished memorandum), appeal denied, 117 A.3d 296 (Pa.
2015).
While his direct appeal was pending, Ramos filed a pro se PCRA petition
in January of 2014, followed by an amended petition in August of 2014. The
trial court entered an order staying the proceedings until the completion of his
direct appeal. In March of 2016, Ramos filed a pro se petition for writ of
mandamus. Thereafter, on April 12, 2016, the trial court entered an order
lifting the stay on Ramos’ PCRA proceedings, and appointing counsel to
represent him. On April 19, 2016, the court appointed new PCRA counsel due
to a conflict with prior counsel, and directed counsel to file either an amended
petition or a Turner/Finley “no merit” letter within 60 days. Nevertheless,
on June 3, 2016, Ramos filed another pro se amended petition. On June 8,
2016, the PCRA court dismissed Ramos’ pro se filing, since he was represented
by counsel, and forwarded a copy to appointed counsel. See Order, 6/8/2016.
5 See 18 Pa.C.S. §§ 3502(a), 3925(a), and 903(a), respectively.
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Subsequently, on June 15, 2016, counsel filed a motion to withdraw and
accompanying Turner/Finley “no merit” letter. Ramos then filed a request
for a Grazier6 colloquy, in which he stated he had received counsel’s motion
to withdraw, and counsel had “informed [him] to proceed pro se on his instant
PCRA Petition.” [Ramos’] Request for Grazier Colloquy, 7/6/2016, at ¶ 3. On
August 2, 2016, the PCRA court conducted a hearing on counsel’s petition to
withdraw and Ramos’ request to proceed pro se. That same day, the court
granted counsel permission to withdraw, and entered an order notifying
Ramos of its intent to dismiss his petition without first conducting an
evidentiary hearing pursuant to Pa.R.Crim.P. 907. After requesting and
receiving the transcripts from his trial, Ramos filed a response to the court’s
Rule 907 notice on January 10, 2018. Subsequently, on January 17, 2018,
the PCRA court entered an order denying Ramos relief. This timely appeal
followed.7, 8 ____________________________________________
6 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
7 On January 30, 2018, the PCRA court directed Ramos to file a concise statement of errors complained of on appeal. When he had not done so by March 8, 2018, the PCRA court filed an opinion, concluding all of Ramos’ issues were waived. See PCRA Court Opinion, 3/8/2018. However, on April 3, 2018, Ramos filed an application in this Court seeking leave to file a concise statement nunc pro tunc, and attached thereto a Rule 1925(b) statement. On April 23, 2018, this Court remanded the record to the PCRA court to prepare a supplemental opinion in response to Ramos’ concise statement. The PCRA court filed a supplemental opinion on May 4, 2018.
8We note Ramos was charged and tried under two docket numbers, and his PCRA petition and notice of appeal therefrom lists both dockets. In June of
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Our review of an order denying PCRA relief is “limited to a determination
of whether the record supports the PCRA court’s factual findings and whether
its legal conclusions are free from error.” Commonwealth v. Williams, 141
A.3d 440, 452 (Pa. 2016).
On appeal, Ramos argues PCRA counsel was ineffective for submitting a
defective “no merit” letter, and the PCRA court abused its discretion when it
permitted appointed counsel to withdraw. See Ramos’ Brief at 23-25, 28-29.
We agree.9
When counsel seeks to withdraw from PCRA representation, pursuant to
Turner/Finley and their progeny, counsel must first conduct an independent
review of the record. Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa.
2009).
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, ____________________________________________
2018, the Pennsylvania Supreme Court in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), held that “when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed. The failure to do so will result in quashal of the appeal.” Id. at 977 (footnote omitted). Nevertheless, the Walker Court specifically announced its decision would be applied prospectively only. See Walker, supra, 185 A.3d at 97. Therefore, because the notice of appeal in the present case was filed before Walker, we need not quash this appeal.
9 Due to our disposition of this issue, we need not address Ramos’ claims that the PCRA court abused its discretion in denying him an evidentiary hearing and directing him to proceed pro se without a proper Grazier colloquy. See Ramos’ Brief at 11-16, 25-28.
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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 Pitts, supra at 876 n. 1.
Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012)
(emphasis supplied), appeal denied, 64 A.3d 631 (Pa. 2013).
Here, Ramos argues PCRA counsel’s “no merit” letter was deficient:10
Appointed [c]ounsel’s defective ‘no-merit’ letter fails to demonstrate a diligent review of the case or communication with the client, it fails to list the issues [Ramos] sought review and the ‘no-merit’ letter fails to explain how and why [Ramos’] issues, when proven accurate, would otherwise not grant PCRA relief.
Ramos’ Brief at 24. Our review of counsel’s three-paragraph “no merit” letter
compels us to agree. Although counsel stated he reviewed all of Ramos’ pro
se petitions, and corresponded with Ramos, he insisted that Ramos’ claims of
trial counsel’s ineffectiveness were only general allegations, lacking “reference
to evidence of record or specific facts demonstrating prejudice[.]” Finley
Letter, 6/15/2016. Counsel further averred, in summary fashion:
In correspondence I requested [Ramos] to supply me with specific facts supporting ineffectiveness claims. He wrote back stating that he wanted me to look into the allegations. I have found no facts to support any PCRA claims after reviewing the Notes of Testimony, [Ramos’] pro se PCRA Petitions, and the Court and Defense files, including the Discovery materials.
Id.
10 We note Ramos properly preserved his challenge to PCRA counsel’s ineffectiveness by raising the claim in his response to the PCRA court’s Rule 907 notice. See Commonwealth. v. Ford, 44 A.3d 1190, 1198 (Pa. Super. 2012), citing Pitts, supra.
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Counsel’s assertion that Ramos’ claims consisted only of general
allegations is belied by our review of Ramos’ most recent petition, filed on
June 3, 2016. In that petition, Ramos alleged, inter alia, the trial court lacked
jurisdiction due to the location of the crimes, and trial counsel was ineffective
for failing to (a) request severance of the charges, (b) seek a change of venue,
(c) call identified witnesses to testify, and (d) engage an expert witness to
scientifically examine wiretap recordings. See Amended Post-Conviction
Collateral Petition, 6/3/2016, at 11, 13, 16, 21. Moreover, in a prior petition,
Ramos asserted the illegality of his sentence pursuant to Alleyne v. United
States, 570 U.S. 99 (2013). Counsel failed to address any of these specific
claims in his “no merit” letter. Therefore, we agree with Ramos that PCRA
counsel’s “no merit” letter failed to satisfy the requirements of Turner/Finley
and their progeny, and, accordingly, are constrained to vacate the order
denying PCRA relief and remand for the appointment of new counsel. 11 We
recognize the PCRA court addressed several of the claims raised in Ramos’
June 3, 2016, amended petition in its May 2, 2018, Opinion. See PCRA Court
Opinion, 5/4/2018, at 7-9. Nevertheless, Ramos is entitled to the “effective
assistance of counsel for his [] first PCRA petition.” Commonwealth v.
Roane, 142 A.3d 79, 100 (Pa. Super. 2016) (citation omitted).
11The Commonwealth stated in its brief it was “not opposed to a remand for the appointment of new counsel[.]” See Commonwealth’s Brief at 15.
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Upon remand, we direct the PCRA court to appoint counsel to Ramos
within 20 days. After the appointment, counsel shall have 60 days to file an
amended PCRA petition, or a petition to withdraw accompanied by a
competent Turner/Finley “no merit” letter.
Order vacated. Case remanded for proceedings consistent with this
Memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/11/19
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