Com. v. Sharp, E.

• Court: Superior Court of Pennsylvania
• Decided: May 30, 2025
• Docket: 132 WDA 2024
• Status: Unpublished

Opinion

J-A05020-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIC GLEN SHARP : : Appellant : No. 132 WDA 2024

Appeal from the PCRA Order Entered December 19, 2023 In the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000503-2021

BEFORE: MURRAY, J., KING, J., and FORD ELLIOTT, P.J.E.*

MEMORANDUM BY KING, J.: FILED: May 30, 2025

Appellant, Eric Glen Sharp, appeals from the order entered in the

Venango County Court of Common Pleas, which denied his timely first petition

filed under the Post Conviction Relief Act (“PCRA”).1 We vacate the order,

deny counsel’s petition to withdraw, and remand for an evidentiary hearing

on the issue of whether Appellant requested that counsel file a direct appeal

from his sentence.

The relevant facts and procedural history of this case are as follows. On

June 7, 2022, Appellant entered a guilty plea to one count of rape at Docket

No. 503-2021. On August 29, 2022, the court sentenced Appellant to 25 to

50 years of incarceration. Appellant did not file a notice of appeal.

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546. J-A05020-25

On December 19, 2022, Appellant timely filed a pro se PCRA petition,

challenging the discretionary aspects and legality of his sentence, as well as

asserting ineffective assistance of counsel due to plea counsel’s alleged failure

to file a requested direct appeal. The court appointed PCRA counsel and on

April 17, 2023, PCRA counsel filed a no-merit letter and motion to withdraw

pursuant to Turner/Finley.2 On September 21, 2023, the court permitted

counsel to withdraw and issued notice pursuant to Pa.R.Crim.P. 907 that it

would dismiss Appellant’s petition without a hearing. On December 18, 2023,

the court formally denied PCRA relief.

On January 9, 2024, Appellant timely filed a pro se notice of appeal

listing Docket No. 503-2021 as well as another Docket No. 597-2021.3 On

March 26, 2024, the PCRA court conducted a Grazier4 hearing at which

Appellant requested counsel. On March 28, 2024, the court appointed current

2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

3 The docket reflects that Appellant’s notice of appeal was not docketed until

January 26, 2024. As Appellant was incarcerated when he submitted this filing, we use the date listed on the certificate of service—January 9, 2024— as the relevant filing date. See Commonwealth v. Crawford, 17 A.3d 1279 (Pa.Super. 2011) (explaining that under “prisoner mailbox rule,” we deem pro se document filed on date it is placed in hands of prison authorities for mailing).

4 Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).

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appellate counsel.5 On April 9, 2024, this Court ordered Appellant to file an

amended notice of appeal, listing only Docket No. 503-2021, within 14 days.

On April 19, 2024, Appellant timely complied, and, that same day, filed a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

On November 6, 2024, counsel filed an “Anders” brief and application

to withdraw in this Court.6 Before counsel can be permitted to withdraw from

representing a petitioner under the PCRA, Pennsylvania law requires counsel

to file a “no-merit” brief or letter. Commonwealth v. Karanicolas, 836 A.2d

940, 946 (Pa.Super. 2003).

5 Generally, once a court permits PCRA counsel to withdraw after filing a “no

merit” letter, an appellant is no longer entitled to the appointment of counsel on appeal. See Commonwealth v. Rykard, 55 A.3d 1177 (Pa.Super. 2012), appeal denied, 619 Pa. 714, 64 A.3d 631 (2013) (explaining that when counsel has been appointed to represent PCRA petitioner and that right has been fully vindicated following grant of counsel’s petition to withdraw under Turner/Finley, court shall not appoint new counsel and appellant must look to his own resources for future proceedings). In its March 28, 2024 order, the PCRA court incorrectly noted that Appellant was entitled to counsel for this appeal. Nevertheless, given that Appellant’s issues on appeal imply allegations of mental illness, appointment of counsel was appropriate. See Commonwealth v. Shaw, 217 A.3d 265, 268 n.3 (Pa.Super. 2019) (noting appointment of appellate counsel was appropriate, even after grant of Turner/Finley application to withdraw, where petitioner alleged mental illness and learning disabilities).

6 See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967). Where PCRA counsel requests to withdraw, the appropriate filing is a “no-merit” letter/brief per Turner/Finley. See Turner, supra. Here, counsel mistakenly designated his no-merit brief as one pursuant to Anders. Nevertheless, we can accept an Anders brief in lieu of a Turner/Finley brief where counsel seeks to withdraw on appeal. See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004), appeal denied, 584 Pa. 691, 882 A.2d 477 (2005).

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[C]ounsel must …. submit a “no-merit” letter to the [PCRA] 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.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel

must also send to the petitioner a copy of the “no-merit” letter or brief and

motion to withdraw and advise petitioner of his right to proceed pro se or with

privately retained counsel. Id. “Substantial compliance with these

requirements will satisfy the criteria.” Karanicolas, supra at 947.

Instantly, appellate counsel filed with this Court a petition to withdraw

and no-merit brief. Counsel’s brief and application to withdraw detail the

nature of his review and explain why Appellant’s claims lack merit. Counsel’s

brief also demonstrates that he examined the certified record and found no

meritorious issues for appeal. Counsel notified Appellant of the request to

withdraw and advised Appellant of his rights. Thus, counsel has substantially

complied with the Turner/Finley requirements. See Wrecks, supra;

Karanicolas, supra. Accordingly, we proceed to an independent evaluation

of the record. See Turner, supra at 494-95, 544 A.2d at 928-29 (stating

appellate court must conduct independent analysis and agree with counsel

that appeal is frivolous).

Counsel raises the following issues on Appellant’s behalf:

Whether the [PCRA] court erred as a matter of law or abused its discretion in denying [Appellant’s] PCRA petition which asserted counsel was ineffective for failing to object to [Appellant’s] sentence which was excessive to other

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defendants facing the same charge.

Whether the [PCRA] court erred as a matter of law or abused its discretion in denying [Appellant’s] PCRA petition which asserted counsel was ineffective for forcing him into a plea when counsel threatened that if [Appellant] did not enter into a plea [Appellant] would get a life sentence.

Whether the [PCRA] court erred as a matter of law or abused its discretion in denying [Appellant’s] PCRA petition which asserted counsel was ineffective for failing to get evidence off of [Appellant’s] cell phone.

Whether the [PCRA] court erred as a matter of law or abused its discretion in denying [Appellant’s] PCRA petition which asserted counsel was ineffective for permitting [Appellant] to enter into a guilty plea when counsel knew that [Appellant] was having a psychotic break.

(No-Merit Brief at 7).7

“Our standard of review of [an] order granting or denying relief under

the PCRA calls upon us to determine whether the determination of the PCRA

court is supported by the evidence of record and is free of legal error.”

Commonwealth v. Parker, 249 A.3d 590, 594 (Pa.Super. 2021) (quoting

Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa.Super. 2013)). “The

PCRA court’s factual findings are binding if the record supports them, and we

review the court’s legal conclusions de novo.” Commonwealth v. Prater,

256 A.3d 1274, 1282 (Pa.Super. 2021), appeal denied, ___ Pa. ___, 268 A.3d

386 (2021). Further, where the PCRA court makes credibility determinations,

we are bound by them if they are supported by the record. Commonwealth

v. Mojica, 242 A.3d 949 (Pa.Super. 2020), appeal denied, 666 Pa. 290, 252

7 Appellant has not filed a responsive brief, either pro se or with new counsel.

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A.3d 595 (2021).

As a preliminary matter, to be eligible for PCRA relief, an appellant must

demonstrate that the claims he raises were not “previously litigated or

waived.” 42 Pa.C.S. § 9543(a)(3). This Court will find a claim previously

litigated or waived if (i) an appellant previously raised the issue on direct

appeal or in a prior PCRA petition; or (ii) if the appellant could have raised it

but failed to do so before trial, at trial, during unitary review, on appeal or in

a prior state postconviction proceeding. 42 Pa.C.S.A. § 9544. Moreover,

claims that have not been previously litigated may be deemed waived for

purposes of appeal if a petitioner does not raise them before the PCRA court.

See Pa.R.A.P. 302(a) (stating: “Issues not raised in the lower court are waived

and cannot be raised for the first time on appeal”). If a petitioner fails to raise

an ineffective assistance of counsel claim before the PCRA court, that claim is

waived and cannot be raised for the first time on appeal to this Court. See

Commonwealth v. Wharton, 571 Pa. 85, 100, 811 A.2d 978, 987 (2002)

(holding appellant waived claim regarding right to counsel where he did not

raise issue before PCRA court but raised it for the first time on appeal).

Instantly, we observe that the issues listed in the statement of questions

presented in counsel’s no-merit brief were not preserved in the PCRA court,

as they were raised for the first time in Appellant’s Rule 1925(b) statement.

Because Appellant failed to raise these claims in the PCRA court, they are

waived on appeal. See Pa.R.A.P. 302(a); Wharton, supra.

Thus, we proceed to an independent review of the record to determine

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if there are any non-frivolous issues that appellate counsel could have raised

on Appellant’s behalf, that were properly preserved in the PCRA court in the

first instance. See Turner, supra. Upon our review, we reiterate that in his

pro se PCRA petition, Appellant alleged, inter alia, ineffective assistance of

plea counsel based on counsel’s failure to file a direct appeal on Appellant’s

behalf. Specifically, Appellant claimed that he asked plea counsel to appeal

at sentencing, and subsequently wrote counsel a letter inquiring if counsel had

filed an appeal on his behalf. (See PCRA Petition, filed 12/19/22, at 4).

The Pennsylvania Supreme Court has held:

[W]here there is an unjustified failure to file a requested direct appeal, the conduct of counsel falls beneath the range of competence demanded of attorneys in criminal cases, denies the accused the assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution, as well as the right to direct appeal under Article V, Section 9, and constitutes prejudice for purposes of Section 9543(a)(2)(ii). Therefore, in such circumstances, and where the remaining requirements of the PCRA are satisfied, the petitioner is not required to establish his innocence or demonstrate the merits of the issue or issues which would have been raised on appeal.

Commonwealth v. Lantzy, 558 Pa. 214, 226-27, 736 A.2d 564, 572 (1999)

(footnote omitted). Nevertheless:

[B]efore a court will find ineffectiveness of trial counsel for failing to file a direct appeal, Appellant must prove that he requested an appeal and that counsel disregarded this request. Mere allegation will not suffice; the burden is on Appellant to plead and prove that his request for an appeal was ignored or rejected by trial counsel.

Commonwealth v. Harmon, 738 A.2d 1023, 1024 (Pa.Super. 1999)

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(internal citations and footnote omitted). Such a claim cannot be proven

without a hearing where the certified record is devoid of any specific reference

to the claim. See Commonwealth v. Rytsar, No. 405 EDA 2019 (Pa.Super.

filed Nov. 27, 2019) (unpublished memorandum) (reversing and remanding

for hearing to determine whether appellant requested counsel to file direct

appeal; explaining that while appellant has pled ineffectiveness based on

counsel’s failure to file requested direct appeal, she cannot prove her claim

without hearing, as certified record is devoid of any specific reference to this

claim). See also Pa.R.A.P. 126(b) (stating we may rely on unpublished

decisions of this Court filed after May 1, 2019 for persuasive value).

Instantly, the PCRA court stated: “PCRA counsel contacted plea counsel,

Chief Public Defender Jeffrey Misko, who maintained he was not asked by

[Appellant] to file an appeal and would have had [Appellant] requested.”

(PCRA Court Opinion, 9/21/23, at 5). Unlike in Rytsar, there were references

to this claim of ineffectiveness in the record. Nevertheless, an examination of

the record reveals only that PCRA counsel stated: “[Plea] Counsel maintained

that he was not told by [Appellant] to file an appeal, stating that if he had

done so, [Plea] Counsel would have filed an appeal.” (See Motion to

Withdraw, 4/17/23, at 6) (unpaginated). Notably, this assertion is not

accompanied by an affidavit from plea counsel or any other documentation.

Thus, we cannot agree that the PCRA court’s credibility determination is

supported by the record. See Mojica, supra.

Further, we observe that the PCRA court stated that because Appellant’s

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underlying legal claims were without merit, plea counsel could not have been

ineffective for failing to file a requested direct appeal in any event. (See PCRA

Court Opinion at 5). However, under Lantzy, where the remaining

requirements of the PCRA are satisfied, “the petitioner is not required to

establish his innocence or demonstrate the merits of the issue or issues which

would have been raised on appeal.” Lantzy, supra at 226-27. Whether or

not the underlying claims had merit is not at issue. See id. Under these

circumstances, we vacate the order denying PCRA relief and remand for a

hearing on the issue of plea counsel’s alleged failure to file a requested direct

appeal. See Rystar, supra. We further deny counsel’s petition to withdraw

at this juncture.

Order vacated. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

DATE: 05/30/2025

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