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

v.

RASHAUN D. GARNER

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1056 MDA 2016 Appeal from the PCRA Order May 20, 2016 In the Court of Common Pleas of Susquehanna County Criminal Division at No(s): CP

- 58

- CR

- 0000418

- 2006

BEFORE: OTT, J., STABILE, J., and PLATT, J. * MEMORANDUM BY OTT, J.: FILED DECEMBER 19, 2017 Rashaun D. Garner appeals from the order entered May 20, 2016, in the Susquehanna County Court of Common Pleas denying his petition for collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 1 Garner seeks relief from th e judgment of sentence of 20 to 40 years’ imprisonment , imposed on June 25, 2008, following his negotiated guilty plea to the crime of third degree murder. 2 Concomitant with this appeal, counsel has filed a petition to withdraw and an Anders 3 brief. On a ppeal, Garner asserts a layered

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541

- 9546.

2 See 18 Pa.C.S. §§ 2501(a) and 2502(c).

3 Anders v. California , 386 U.S. 738 (1967). As will be discussed infra , counsel should have filed a “no merit” letter pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ), rather than an Anders brief.J

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ineffectiveness claim based upon trial counsel’s failure to file a post

- sentence motion to withdraw his guilty plea, and a challenge to the trial court’s jurisdiction. For the reasons below, we vacate the order denying PCRA relief, deny counsel’s petition to withdraw , and remand for the filing of an amended PCRA petition

. The facts and tortured procedural history underlying this appeal are well known to the parties and we need not reiterate them in detail herein. To

summar ize, Garner was a juvenile on November 24, 2006, when he shot and killed Stephen Smith, Jr. He was charged, as an adult, with homicide, aggravated assault (two counts), and terroristic threats (six counts). His pretrial motion to decertify the case to ju venile court was denied, and he subsequently entered a negotiated guilty plea to one count of third degree murder. As noted above, he was sentenced on June 25, 2008, in accordance with the plea agreement, to a term of 20 to 40 years’ imprisonment. See Co mmonwealth v. Garner , 87 A.3d 889 (Pa. Super. 2013) (unpublished memorandum at 2

- 3). Garner did not file a direct appeal, but rather filed a timely PCRA petition in June of 2009. The PCRA court denied the petition, and Garner filed an appeal to this Cour t, in which appointed counsel petitioned to withdraw. After we initially remanded for a procedural issue, this Court rejected Garner’s claim that his guilty plea was entered unknowingly and involuntarily. See id. (unpublished memorandum at 6

- 9). However , our independent review of the record reveal ed a potentially meritorious issue, namely, that trial counsel wasJ

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ineffective for failing to file a direct appeal when Garner requested that counsel do so. Consequently, this Court denied PCRA counsel’s petition to withdraw and remanded for the fili ng of a counseled, amended petition. See id. (unpublished memorandum at 9

- 10). After remand, the trial court reinstated Garner’s direct appeal rights.
On direct appeal to this Court, appellate cou nsel once again petitioned to withdraw and filed an Anders brief addressing one issue: “Did the lower court err by accepting the guilty plea entered by appellant as voluntarily and knowingly given?” Commonwealth v. Garner , 116 A.3d 679 (Pa. Super. 2014) (unpublished memorandum at 4) (citation omitted). Upon review, a panel of this Court found Garner’s claim waived because he did not challenge the voluntariness of his guilty plea in the trial court by either objecting at the colloquy or filing a post

- sent ence motion to withdraw his plea. See id. (unpublished memorandum at 5). F urthermore, the panel mentioned Garner did not aver that he asked counsel to file a post

- sentence motion, and noted that he could challenge counsel’s ineffectiveness in a PCRA proc eeding

. See id. Accordingly, the panel affirmed the judgment of sentence, and permitted counsel to withdraw. On December 10, 2015, Garner filed the instant PCRA petition , pro se , and raised the following two claims: (1) trial counsel was ineffective f or failing to file “a requested post

- sentence motion to withdraw his plea of guilty where
meritorious bases existed to do so,” and (2) initial PCRA counsel was ineffective for failing to advance this claim. See Petition for Post

- ConvictionJ

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Collateral Reli ef, 12/10/2015, at ¶¶ 22

- 23. On February 19, 2016, the PCRA court issued notice of its intent to dismiss the petition without first conducting an evidentiary hearing pursuant to Pa.R.Crim.P. 907. The court subsequently dismissed the petition by order ent ered April 25, 2016. Although Garner had requested the appointment of counsel in his pro se petition, 4 counsel was not appointed before the court dismissed the petition. This appeal followed. 5
A fter filing his notice of appeal, Garner filed several additional pro se motions in the trial court , including : (1) a motion to dismiss coun sel, although no attorney was attached; (2) a motion to proceed pro se ; and (3) a motion for reconsideration of the order denying relief. The PCRA court did not address any of these motions before the appeal was transferred to this Court. Thereafter, on October 11, 2016 , this Court entered a per curia m order,

_________________ __________ ______ ____ _______ 4 See Petition for Post

- Conviction Collateral Relief, 12/10/2015, at ¶¶ 29

- 30.

5 Although the order denying PCRA relief was entered on May 20, 2016, it was not docketed until May 23, 2016. See Docket, 5/23/2016. Therefore, Garner had until June 22, 2016, to file a timely appeal. However, Garner’s notice of appeal was not docketed u ntil June 23, 2016 , seemingly one day late

. Nevetheless, because Garner was incarcerated at the time he filed his pro se notice of appeal, he may avail himself of the “prisoner mailbox rule ’” which provides that a pro se prisoner’s document is deemed f iled on the date he delivers it to prison authorities for mailing, so long as he supplies sufficient proof o f the date of mailing. See Commonwealth v. Jones , 700 A.2d 423 (Pa. 1997); Commonwealth v. Perez , 799 A.2d 848 (Pa. Super. 2002)

. Here, Garner dat ed the certificate of service , corresponding to the notice of appeal , June 10, 2016, which was within the requisite 30

- day period. Accordingly, we conclude Garner provided sufficient proof that the notice of appeal was timely filed.J

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directing the PCRA court to conduct a Grazier 6 hearing, and determine whether Garner’s purported waiver of couns el was knowing and voluntary.
See Order, 10/11/2016. The PCRA court complied with our directive, and, following a Grazier hearing, appointed present counsel to represent Garner. As noted supra , counsel has filed a petition to withdraw and Anders brief.
Prior to addressing the merits of this appeal, we must first consider whether counsel has fulfilled the procedural requirements for withdrawal. “Where counsel seeks to withdraw on appeal from the denial of PCRA relief, a
Turner / Finley ‘n o - merit letter’ is the appropriate filing.” Commonwealth v. Reed , 107 A.3d 137, 139 n.5 (Pa. Super. 2014). Pursuant to
Turner / Finley and their progeny: Counsel petitioning to withdraw from PCRA representation must ... review the case zealously. Turner / Fin ley counsel must then submit a “no

- merit” letter to the trial 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 petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw. Counsel must also send to the petitioner: (1) a copy of the “no merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel. * * * [W]here counsel submits a petition and no

- merit letter that ... satisfy the technical demands of Turner / Finley , the court

— trial court or this Court

— must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief.

_________________ __________ ______ ____ _______ 6 Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1988).J

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Commonwealth v. Doty , 48 A.3d 451, 454 (Pa. Super. 2012) (citation omitted). Here, counsel has complied with the procedural aspect s of
Turner / Finley . Although s he improperly filed an Anders brief, as opposed to a “no merit” letter, this Court may accept such a filing “‘[b]ecause an Anders brief provides greater protection to a defendant.’” 7 Reed , supra , 107 A.3d at 139 n.5 (quotati on omitted). Furthermore, counsel provided
Garner with a copy of the brief and the petition to withdraw, and Garner was advised of his right to proceed pro se or with private counsel. 8 See Motion to Withdraw, 8/18/2015, Exhibit A. Garner has not respond ed to counsel’s petition. Therefore, we proceed to a consideration of whether the PCRA court erred in dismissing the petition. See Doty , supra . However, our initial review of the record reveals a procedural error, which, once again, compels us to remand this case for further proceedings.

_________________ __________ ______ ____ _______ 7 Nevertheless, the Anders brief filed by counsel reads more like a “no merit” letter. See Anders Brief at 20

- 30

.
8 We note counsel’s initial filing did not include a copy of the letter she sent to Garner. Th e refore, by order dated May 4, 2017, we directed counsel to notify G arner of his rights and forward a copy of her notification to this Court. See Order, 5/4/2017. Although counsel complied, upon review, this Court found counsel’s letter to Garner did not properly i nform him of his right to procee d pro se or with retained counsel. Accordingly , on May 17, 2017, this Court entered an order permitting Garner to file a response to counsel’s petition, either pro se or through privately retained counsel, within 30 days. Garner did not respond.J

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Specifically, Garner was denied the assistance of counsel in presenting his first PCRA petition. It is axiomatic that a n indigent PCRA petitioner has a rule

- based right “to representation by counsel for a first petition filed under the PCRA.” Commonwealth v. Quail , 729 A.2d 571, 573 (Pa. Super. 1999) . Indeed, Pennsylvania Rule of Criminal Procedure 904 provides , in pertinent part: [W]h en an unrepresented defendant satisfies the judge that the defendant is unable to aff ord or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant’ s first petition for post

- conviction collateral relief. Pa. R. Crim. P. 904 (C). Here, Garner asserted his indigency in his pro se PCRA petition , and specifically requested counsel. 9 See Petition for Post

- Conviction Collateral Relief, 12/10/2015, at ¶¶ 29

- 30. Nevertheless, the PCRA court did not address Garner’s request for counsel, but rather, dismissed the petition without conducting an evident iary hearing. 10 It was not until after Garner filed a notice of appeal, and the PCRA court, upon directive from this Court,

_________________ __________ ______ ____ _______ 9 It merits mention Garner was granted in forma pauperis status and appointed counsel during his prior PCRA proceeding and nunc pro tunc direct appeal.

10 Although this petition was technically Garner’s second request for post

co nviction relief, his first petition resulted in the reinstatement of his direct appeal rights. “When a petitioner is granted a direct appeal nunc pro tunc in his first PCRA petition, a subsequent PCRA petition is considered a first PCRA petition for time liness purposes.” Commonwealth v. Karanicolas , 836 A.2d 940, 944 ( Pa. Super. 2003) . Accordingly, pursuant to Rule 904, Garner was entitled to the appointment of counsel prior to the court’s dismissal of this petition.J

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conducted a Grazier hearing, that present counsel was appointed. At that time, however, the PCRA court no longer had jurisdiction t o consider an amended petition since the appeal was pending in this Court

. 11 See Pa.R.A.P. 1701(a). Accordingly, because Garner was not afforded his rule

- based right to counsel to assist him in litigating his first PCRA petition, we are compelled to vacate the order denying PCRA relief, deny counsel’s petition to withdraw, and remand for further proceedings, including the filing of a counseled , amended PCRA petition. Order vacated, and case remanded for further proceedi ngs. Petition to withdraw denied. Jurisdiction relinquished.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/19/2017

_________________ __________ ______ ____ _______ 11 We note, too, that the order of this Court , remanding the case for a Grazier hearing, did not relinquish jurisdiction, but rather, only stayed the briefing schedule. The Court directed, “Upon entry of the trial court’s determination [concerning Garner’s request to proceed pro se ] , the Prothonotary shall establish a briefing schedule.” Order, 10/13/2016.