J-S58024- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. THOMAS EUGENE SKARIOT, Appellant No. 235 WDA 2014

Appeal from the PCRA Order Entered January 6 , 2014 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP

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- CR -0000584-2011
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J. * MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 23, 2014 Appellant, Thomas Eugene Skariot, appeals pro se from the trial court’s January 6, 2014 order denying his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9 541-9546. After careful review, we are compelled to vacate that order and remand for the appointment of new counsel. According to the PCRA court’s Pa.R.A.P. 1925(a) opinion , Appellant entered a negotiated guilty plea on February 2, 201 2, to the charge of aggravated assault. The court summarized the facts unde rlying Appellant’s offense as follows:
The Affidavit of Probable Cause avers that an office r of the Pennsylvania State Police was dispatched to a residence l ocated

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* Retired Senior Judge assigned to the Superior Court.J-S58024- 14

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in East Bethlehem Township for a report of a burglary and aggravated assault on January 13, 2011. He questione d the victim, Kenneth James Axton, while he was being treate d for injuries. Axton informed the officer that he was sleep ing on a couch when he awoke to [] Appellant[’s] striking him w ith a wooden baseball bat. Axton knew [] Appellant, and h ad received a cell phone call from Appellant earlier that day. D uring the call, [] Appellant stated that he intended to come to Axton ’s res idence and “[k]ill him.” During the ensuing altercation , Axton grabbed a knife and defended himself. Axton believ ed that he had stabbed [] Appellant. During the fight, Appella nt obtained the knife from the victim, and Appellant used it to cu t the hands of Axton. The arresting officer observed multiple lace rations and contusions to Axton’s head and face. PCRA Court Opinion (PCO), 4/4/14, at 1-2 (citations t o the record omitted). On the same day Appellant pled guilty to aggravated assault, he was
sentenc ed to the negotiated term of three to six years’ incar ceration. The Commonwealth also waived any objection to Appellant’ s being eligible for the Recidivism Risk Reduction Incentive (RRRI) program. Appellant did not file post-sentence motions or a direct appeal. However, on October 5, 2012, Appellant filed a pro se PCRA petition presenting twenty claims, most of which involved allega tions of ineffective assistance of trial counsel. Counsel was appointed, but rather than file an amended PCRA petition, c ounsel filed a petition to withdraw and a “no

- merit” letter pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1998), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988). On October 22, 2013, the court granted counsel’s petition t o withdraw and filed a Pa.R.Crim.P. 907 notice of its intent to dismiss Appe llant’s PCRA petition. Appellant filed a timely pro se response on November 1, 2013, averring thatJ-S58024- 14

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his PCRA counsel was ineffective for filing an inadequat e Turner/Finley no merit letter. On January 6, 2014, the PCRA court issued an order dism issing Appellant’s petition. Appellant filed a notice of ap peal on February 7, 2014, which the PCRA court properly deemed as timely, consider ing “the delay that can occur when inmates mail documents from State Correctional Facilities....” PCO at 2 n.3 (citing Commonwealth v. Cooper , 710 A.2d 76, 78 (Pa. Super. 1997) (holding that “prisoner mailbox rule” app lies “to all appeals filed by prisoners proceeding pro se ” and mandates that “a notice is deemed filed as of the date it is deposited in the prison mail system”) (citation omitted)). While the PCRA court did not order Appel lant to file a Pa.R.A.P. 1925(b) statement, it filed a Rule 1925(a) opinion on April 4, 2014. On appeal, Appellant raises the following four questi ons for our review: 1.) Was trial counsel ineffective, and [did he] demons trate an abandonment of Appellant by failing to raise a prima facie case, acquire discovery, and by forcing a plea of guilty, and [was] PCRA counsel ineffective for failing to fully review t he case and [Appellant’s] PCRA petition, and render a proper concl usion based on facts? 2.) Was the plea of guilty coerced by counsel to cover up the abandonment of Appellant? 3.) Is Appellant factually innocent of the charge of a ggravated assault? 4.) Was the trial court biased, and [did it] commit misc onduct when a pre-formed judgement [ sic ] about the case was commented upon by the trial judge?J-S58024- 14

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Appellant’s Brief at 3. 1 Initially, we note that “[t]his Court’s standard of rev iew from the grant or denial of post-conviction relief is limited to exami ning whether the lower court’s determination is supported by the evidence of re cord and whether it is free of legal error.” Co mmonwealth v. Morales , 701 A.2d 516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia , 661 A.2d 352, 356 n.4 (Pa. 1995)). In Appellant’s first issue, he alleges that both his tri al counsel and his PCRA attorney rendered ineffective representation. [A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his convicti on or sentence resulted from the “[i]neffective assistance of coun sel which, in the circumstances of the particular case, so undermined the tru th -determining process that no reliable adjudication of guilt or innocence could have taken pla ce.” Generally, counsel’s performance is presumed to be constitutionally adequate, and counsel will only be de emed ineffective upon a sufficient showing by the petition er. To obtain relief, a petitioner must demonstrate that counsel’s pe rformance was deficient and that the deficiency prejudiced the pet itioner. A petitioner establishes prejudice when he demonstrates “th at there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding woul d have been different.” ... [A] properly pled claim of ineffect iveness posits that: (1) the underlying legal issue has arguabl e merit; (2) counsel’s actions lacked an objective reasona ble basis; and (3) actual prejudice befell the petitioner from counse l’s act or omission.

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1 We note that the Commonwealth has not filed a brie f in this case.J-S58024- 14

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Commonwealth v. Johnson , 966 A.2d 523, 532-33 (Pa. 2009) (citations omitted).
W e will first address Appellant’s claims regarding PCRA co unsel’s representation, “as Appellant is entitled to competent and diligent representation by counsel in his first PCRA petition.” Commonwealth v. Perry , 959 A.2d 932, 936 (Pa. Super. 2008) (citations omit ted). Appellant contends that his PCRA attorney filed an “incomplete” an d “deficient” Turner/Finley no - merit letter because counsel “failed to review all [of t he] issues raised in [] Appellant[’]s PCRA” petition. Appe llant’s Brief at 11 -12. Appellant also avers that counsel failed to conduct a “tho rough investigation” of the reco rd in this case, which violated her “ethical obligation[ ]” to “zealously defend” him. 2 Id.
In Turner , our Supreme Court “set forth the appropriate procedu res for the withdrawal of court-appointed counsel in collat eral attacks on criminal convictions[.] ” Turner , 544 A.2d at 927. The traditional

____________________________________________ 2 Appellant presented these assertions of PCRA counsel’s ineffectiveness in his timely- filed response to the PCRA court’s Rule 907 notice of i ts intent to dismiss. Thus, his claims are preserved for our review. See Commonwealth v. Pitts , 981 A.2d 875, 879 (Pa. 2009) (indicating that a petitioner waives a claim of PCRA counsel’s ineffectivene ss by failing to assert the issue in response to the court’s Rule 907 noti ce or counsel’s petition to withdraw); Commonwealth v. Henkel , 90 A.3d 16, 20 (Pa. Super. 2014) (concluding that under Pennsylvania Supre me Court precedent, “claims of PCRA counsel’s ineffectiveness may not be raised for the first time on appeal”).J-S58024- 14

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requirements for proper withdrawal of PCRA counsel, or iginally set forth in Finley , were updated by this Court in Commonwealth v. Friend , 896 A.2d 607 (Pa. Super. 2006), abrogated by Commonwealth v. Pitts , 981 A.2d 875 (Pa. 2009), which provides: (1) As part of an application to withdraw as counsel, PC RA counsel must attach to the application a “no

- merit” letter[;] 2) PCRA counsel must, in the “no

- merit” letter, list each claim the petitioner wishes to have reviewed, and detail t he nature and extent of counsel's review of the merits of each of those claims[;] 3) PCRA counsel must set forth in the “no

- merit” letter an explanation of why the petitioner's issues are meritless[ ;] 4) PCRA counsel must contemporaneously forward to the petitioner a copy of the application to withdraw, wh ich must include (i) a copy of both the “no

- merit” letter, and (ii) a statement advising the PCRA petitioner that, in the e vent the trial court grants the application of counsel to withdr aw, the petitioner has the right to proceed pro se, or with th e assistance of privately retained counsel; 5) the court must conduct its own independent review of the record in the light of the PCRA petition and the issu es set forth therein, as well as of the contents of the petition of PCRA counsel to withdraw; and 6) the court must agree with counsel that the petition is meritless. Friend , 896 A.2d at 615 (footnote omitted). “Once counsel fo r the petitioner determines that the issues raised under the PC[R]A are ‘meritless,’ and the PC[R]A court concurs, counsel will be permitted t o withdraw and the petitioner may proceed on his own or with the aid of private counsel toJ-S58024- 14

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pursue a review of the ruling entered, if he/she so wi shes.” Finley , 550 A.2d at 215. Here, it is apparent from our review of the record t hat in PCRA counsel’s Turner/Finley letter, she failed to address all of the issues raised by Appellant in his pro se PCRA petition. In that petition, Appellant raised seventeen claims of trial counsel’s ineffectiveness; an assertion that his constitutional rights were violated during the investi gation in this case; an allegation that the Commonwealth withheld exculpato ry evidence in violation of Brady v. Maryland , 373 U.S. 83 (1963); and a claim that the trial jud ge made improper remarks indicating a bias against Appell ant. In counsel’s Turner/Finley no -merit letter, she did not set forth any of these specif ic claims, instead simply indicating that Appellant “check[e d] the boxes [on his PCRA petition] that he is eligible for relief due to a violation of the Constitution or laws, ineffective assistance of counsel, a plea of guilty unlawfully induced, and the unavailability at the ti me of trial of exculpatory evidence.” No Merit Letter, 10/22/13, at 2 (unnumbered pages). Counsel then stated: To establish that a guilty plea was unlawfully induced as the result of ineffective assistance of counsel, the defen dant must prove that counsel’s ineffectiveness caused him to ente r the guilty plea. The transcripts of the [p]lea and sen tencing proceedings held on February 7, 2012[,] show the presid ing Judge formally asked [Appellant] on the record if he had a chance to review matters with his attorney and if [Appe llant] was satisfied with his attorney’s exp lanation of his rights

– to which [Appellant] replied in the affirmative. The [ g]uilty [p]lea is signed by [Appellant] and he states that he “hereby e nters myJ-S58024- 14

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plea of guilty on the charge of Aggravated Assault (F2 ) and represents that I do this knowingly, voluntarily and intelligently.” His attorney was present at all times. Id. (citations omitted). Counsel closed her no-merit letter by noting that she “reviewed the Clerk of Courts file and the plea an d sentencing transcripts” and saw “no issues which wo uld, or even might, entitle [Appellant] to [PCRA] relief upon any other grounds. ” Id. Even if counsel’s generalized discussion of Appellant’s sev enteen individual trial counsel ineffectiveness claims were suffi cient, she omitted
any discussion of his other three issues. Thus, we agree with Appellant that PCRA counsel’s no -merit letter was inadequate in this regard and, as suc h, counsel should not have been permitted to withdraw. See Friend , 896 A.2d at 615; Commonwealth v. Wrecks , 931 A.2d 717, 721 (Pa. Super. 2007) (“If counsel fails to satisfy the foregoing technical prer equisites of Turner/Finley , the court will not reach the merits of the underlyin g claims but, rather, will merely deny counsel’s request to with draw.”) (citation omitted). Moreover, we conclude that PCRA counsel’s discussion in her no -merit letter was insufficient to demonstrate that Appellant’ s issues are clearly meritless. Namely, in Appellant’s pro se petition, he averred that his trial counsel coerced him into entering a guilty plea in the moments before trial was set to begin, without providing Appellant “adequat e time to fully consider the consequences of pleading [guilty]....” Pro Se PCRA Petition, 10/5/12, at 10 (page unnumbered). Appellant also ass erted that heJ-S58024- 14

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repeatedly told his trial counsel that he was innocent, yet counsel ineffectively convinced him that if he did not plead g uilty, “he would be convicted based on his past criminal history....” Id. In essence, Appellant argued that his guilty plea was involuntary, unknowin g, and/or unintelligent because it was premised on his trial counsel’s coercion and i ncompetent legal advice. Initially, we note that it is impossible on this record to verify - or dispel

- Appellant’s claims regarding counsel’s advice to him prior to his pleading guilty. Furthermore, in concluding that this claim is meritless, both PCRA counsel and the court erroneously relied on Appellant’s statements during the guilty plea colloquy. See PCO at 4-5. That colloquy amounted to the following: The Court: Have you had a chance to review matters wit h [your trial counsel]? [Appellant]: Yes. The Court: Are you satisfied with his explanation of those rights? [Appellant]: Yes. N.T. Guilty Plea, 2/7/12, at 2. The court then discus sed the terms of App ellant’s negotiated sentence, after which it stated: The Court: [Appellant], you’re prepared to enter a plea of guilty to the agg [ sic ] assault? [Appellant]: Yes, sir. The Court: So ordered. Court will make a recommenda tion of RRRI, which means if you com plete the program, you’ll be able to be released 9 months early. Any questions, [Appella nt]?J-S58024- 14

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[Appellant]: No. Id. at 3. Notably, at no point during this proceeding was Appel lant asked if he understood (1) the nature of the charge to which he wa s pleading guilty; (2) the factual basis underlying that charge; (3) that he h as the right to proceed to a jury trial; (4) that he is presumed innocent unt il found guilty; (5) the permissible range of sentences and/or fines for the offen ses charged; or (6) that the judge was not bound by the terms of any plea agreement tendered unless the judge accepted such agreement. See Cmnt. to Pa.R.Crim.P. 590 (indicating the minimum information the judge should elicit from a defendant pleading guilty). Based on the scant colloqu y conducted in this case, we cannot agree with PCRA counsel and the court th at the colloquy alone proved that Appellant’s plea was valid, and tha t he was not coerced into pleading guilty by his trial counsel. 3

____________________________________________ 3 PCRA counsel and the court also noted Appellant’s complet ion of a written plea colloquy. That “colloquy” is a single page document, which states at the top “PLEA OF GUILTY,” followed by, “I, the above n amed Defendant, hereby enter my plea of guilty on the charge of Aggr avated Assault (F2).” Written Guilty Plea, 3/12/13. The document then cont ains a printed line stating, “And I represent that I do this knowingly, vo luntarily and intelligently.” Id. Appellant dated and signed this form, as did his counsel

. Clearly, the written plea colloquy does not verify th at Appellant understood any of the six factors set forth above. Thus, we do not agree with PCRA counsel or the court that it confirms the validity of A ppellant’s plea.J-S58024- 14

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For these reasons, we are constrained to c onclude that PCRA counsel’s Turner/Finley no -merit letter was inadequate, and the PCRA court erre d by granting counsel’s petition to withdraw. Therefore, w e vacate the court’s order denying Appellant’s petition, and remand for t he appointment of new PCRA counsel. Additionally, while we do not opine on whether Appellant will be able to prove he is entitled to post-conviction rel ief based on the trial counsel ineffectiveness claim discussed herein, that issue at least possesses arguable merit warranting an evidentiary hearing. Order vacated. Case remanded for further proceedings. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/23/2014