Com. v. Upshur, A.

• Court: Superior Court of Pennsylvania
• Decided: May 10, 2017
• Docket: Com. v. Upshur, A. No. 730 WDA 2016
• Status: Unpublished

Opinion

J-S11017-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

AZSION UPSHUR,

Appellant No. 730 WDA 2016

Appeal from the PCRA Order entered March 31, 2016, in the Court of Common Pleas of Allegheny County, Criminal Division, at No(s): CP-02-CR-0012739-2012.

BEFORE: OLSON and RANSOM, JJ., and STEVENS, P.J.E. *

MEMORANDUM BY RANSOM, J.: FILED MAY 10, 2017

Appellant, Azsion Upshur, appeals pro se from the order entered March

31, 2016, denying his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We reverse and remand with

instructions.

The pertinent facts and procedural history, as gleaned from our review

of the certified record, are as follows. On May 20, 2013, a jury found

Appellant guilty of robbery and criminal conspiracy for his part in an incident

wherein he and two other men robbed a local drug-dealer. A co-defendant

shot the victim, who subsequently died of his injuries. On August 5, 2013,

the trial court sentenced Appellant to an aggregate term of 10 to 20 years of

imprisonment. The trial court denied Appellant’s timely-filed motion for

sentence modification. Appellant timely filed an appeal, and this Court * Former Justice specially assigned to the Superior Court. J-S11017-17

affirmed, finding Appellant’s claims waived. See Commonwealth v.

Upshur, 120 A.3d 376 (Pa. Super. 2015) (unpublished memorandum).

On April 20, 2015, Appellant sent correspondence to the PCRA court,

in which he indicated his desire to seek post-conviction relief, and he filed an

actual PCRA petition on August 14, 2015. In response, the PCRA court

appointed counsel to assist Appellant in either filing a proper PCRA petition

or a “no-merit” letter and petition to withdraw pursuant to Commonwealth

v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988) (en banc). PCRA counsel filed a “no-merit”

letter on October 29, 2015. By order entered November 9, 2015, the PCRA

court directed PCRA counsel to file an amended petition or proper “no-merit”

letter. Thereafter, PCRA counsel filed another “no-merit” letter and petition

to withdraw.

On February 25, 2016, the PCRA court issued Pa.R.Crim.P. 907 notice

of intent to dismiss Appellant’s PCRA petition without a hearing. Appellant

did not file a response. On March 3, 2016, the PCRA granted PCRA counsel’s

motion to withdraw. By order entered March 31, 2016, the PCRA court

dismissed Appellant’s petition. On or about April 27, 2016, Appellant filed a

pro se notice of appeal and requested new counsel. The PCRA court

appointed present counsel, and present counsel filed an amended notice of

appeal. The PCRA court did not require Pa.R.A.P. 1925 compliance.

Appellant raises the following issue:

-2- J-S11017-17

1. Whether the trial court denied Appellant’s Constitutional Right to Counsel by dismissing Appellant’s [PCRA] claims because PCRA counsel provided ineffective assistance by filing a turner/finley [sic] no merit letter when meritorious issues existed?

Appellant’s Brief at 4.

When examining a post-conviction court's grant or denial of relief, we

are limited to determining whether the court's findings were supported by

the record and whether the court's order is otherwise free of legal error.

Commonwealth v. Quaranibal, 763 A.2d 941, 942 (Pa. Super. 2000). We

will not disturb findings that are supported in the record. Id. The PCRA

provides no absolute right to a hearing, and the post-conviction court may

elect to dismiss a petition after thoroughly reviewing the claims presented

and determining that they are utterly without support in the record. Id.

Within his brief, Appellant acknowledges that claims of ineffectiveness

of PCRA counsel cannot be raised for the first time on appeal; rather PCRA

counsel’s alleged ineffectiveness must be raised in response to the PCRA

court’s Pa.R.A.P. 907 notice. See Appellant’s Brief at 15-16 (citing cases

finding waiver). Nevertheless, Appellant contends that he was not given the

opportunity to respond to the PCRA court’s notice of intent to dismiss

because he was transferred to a different correctional institution during the

litigation of his PCRA petition, and, therefore, did not promptly receive his

mail. The Commonwealth concedes that the record establishes Appellant

promptly notified the clerk of courts and the PCRA court that he was

-3- J-S11017-17

transferred from SCI-Pittsburgh to SCI-Smithfield, and that the Rule 907

notice was mailed to Appellant at SCI-Pittsburgh. See Commonwealth’s

Brief at 8-9.

Thus, the Commonwealth agrees with Appellant that he may not have

had the opportunity to raise a challenge to PCRA counsel’s representation in

a timely response to the PCRA court’s Rule 907 notice. The Commonwealth

further states:

Your Honorable Court has found that the notice requirement of Pa.R.Crim.P. 907(1) is mandatory. Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000). Given this principle, and the fact that [Appellant] has been appointed [present] counsel, the Commonwealth suggests that it may be appropriate to remand the matter so that [the PCRA court] may consider the claims [present] counsel has raised, which your Honorable Court may not otherwise review. Pa.R.A.P. 302(a).

Commonwealth’s Brief at 12.

We agree that a remand is appropriate given the circumstances

presented. We therefore reverse the order denying Appellant’s request for

post-conviction relief and remand so that the PCRA court may consider the

claims of ineffectiveness raised by present counsel.

Order reversed. Case remanded for further proceedings consistent

with this memorandum. Jurisdiction relinquished.

-4- J-S11017-17

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/10/2017

-5-