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

v.

TEONIA TERRI KIMBRO

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

PENNSYLVANIA

No. 295 WDA 2019 Appeal from the PCRA Order Entered January 25, 2019 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP

- 25

- CR

- 0002723

- 2015

BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J. * MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 03, 2020 Teonia Terri Kimbro appeals from the order dismissing her petition filed under the Post Conviction Relief Act (“PCRA”) , 42 P a.C.S.A. § § 9541

- 9546 , as meritless . Kimbro’s counsel has filed a Turner/Finle y 1 brief and a petition to withdraw as counsel

. We conclude that counsel incorrectly concluded that Kimbro filed an untimely PCRA petition and that he did not properly inform Kimbro of her rights following the filing of a petition to withdraw and Turner/Fi

nley brief

. Further, because counsel on appeal incorrectly concluded Kimbro’s PCRA petition w as untimely, we conclude Kimbro was effectively deprived of counsel, and remand for the appointment of new appellate counsel

.

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

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

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In January 2017, Kimbro pled guilty to third

- degree murder and burglary. 18 Pa.C.S.A. §§ 2502(c), 3502(a)(1). The trial court imposed a negotiated sentence of 30 to 60 years’ imprisonment. On September 21 , 2017, this Court affirmed. Kimbro did not file a p etition for allowance of appeal with the Supreme Court of Pennsylvania. On May 9, 2018, Kimbro filed a pro se PCRA petition, alleging trial counsel was ineffective for failing to file a post

- sentence motion to modify her sentence and for failing to act o n her pro se motion . The PCRA court appointed William J. Hathaway, Esquire, as counsel. Counsel f iled a Turner/Finley no merit letter and a petition to withdraw as counsel, claiming Kimbro’s petition was untimely and, even if not untimely, there were no me ritorious claims . The PCRA court issued notice of its intent to dismiss the petition without a hearing and, on January 25, 2019 , it dismissed the petition, finding Kimbro failed to raise any meritorious issues

. 2 The court did not rule on counsel’s petition to withdraw. Kimbro filed a timely notice of appeal. As mentioned above, counsel filed a Turner/Finley brief and petition to withdraw as counsel

. When pr esented with a brief pursuant to Turner/Finley , we first determine whether the brief meets the proced ural requirements of Turner/Finley

. See Commonwealth v. Wrecks , 931 A.2d 717, 721 (Pa.Super. 2007). A Turner/Finley brief must: (1) detail t he nature and extent of counsel’ s review of the case; (2) list each issue the petitioner wishes

_________________ __________ ______ ____ _______ 2 Kimbro submitted pro se filings, including a motion to appoint replacement counsel

.J

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to have re viewed; and (3) explain counsel’ s reasoning for concluding tha t the petitioner’ s issues are meritless . Commonwealth v. Pitts , 981 A.2d 875, 876 n.1 ( Pa. 2009). Counsel must also send a copy of the brief to the petitioner, along with a copy of the petition to withd raw, and inform the petitioner of the right to proceed pro se or to retain new counsel. Wrecks , 931 A.2d at 721. If the brief meets these requirements, we then conduct an indep endent review of the petitioner’ s issues. Commonwealth v. Muzzy , 141 A.3d 509, 5 11 (Pa.Super. 2016). Counsel has failed to comply with Turner/Finley . In his one and one

half page brief, counsel summarily concludes the PCRA petition was untimely and no PCRA time

- bar exception applies. 3 He states that Kimbro “failed to recognize or add ress the patent untimeliness of the filing of the instan t PCRA petition in that she did not cite or invoke any statutory exception,” and that counsel “failed to discern the legal basis to invoke any statutory exception on behalf of [Kimbro].” Turner/Finley Br. at 1. Counsel states that he reviewed the petition, case record, applicable statute, and case law , but p rovides no details regarding the facts or procedural history of the case , or the case law, that led him to conclude that Kimbro filed an untimely P CRA petition. Counsel further states that the PCRA court agreed with his conclusion that the PCRA petition was not timely. This is not accurate. The PCRA court dismissed the

_________________ __________ ______ ____ _______ 3 His Turner/Finley letter filed before the PCRA court concluded that, even if timely, the petition raised no meritorious issues. His appellate Turner/Finley brief contai ns no such alternate conclusion.J

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petition because it failed to state any meritorious claims. It did not dismiss the petition as untimely. The lack of detail , inaccurate recitation of the record, and summary conclusion are not acceptable in any Turner/ Finley brief. We find them even more troubling in this case because we conclude that Kimbro’s petition is a timely PCRA petition. A PCRA petition is timely where the petitioner filed it “within one year of the date the judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment is final “at the conclusion of direct review, including discretionary review in the Sup reme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). Here, Kimbro ’s judgment did not become final until October 21, 2017, thirty days after we affirmed the j udgment of sentence. She filed her petition in May 2018, well within one year of when her judgment became final. In addition to inaccurately concluding that the PCRA petition w as untimely, counsel also failed to establish he served a copy of the Turner/Fi

nley brief on Kimbro and failed to properly inform her of her rights following the filing of a Turner/Finley brief and petition to withdraw. I n the brief , counsel claims he “served a copy of this Finley brief and application to withdraw as counsel contempo raneous to the instant filing with the Court upon [Kimbro] with a statement advising [Kimbro] that, in the event that the Court grants the application of counsel to withdraw, she has the right to proceed pro

se or with the assistance of privately retained counsel.” Turner/Finley Br. at 2. There are two problems with this statement. First, counsel did not attachJ

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the alleged letter to the petition to withdraw and therefore this C ourt cannot determine whether he did, in fact, send it. Second, he states that he informed Kimbro she could proceed pro se or with privately

- retained counsel if this C ourt granted his application to withdraw. This is not an accurate statement of Kimbro’s rights. Rather, once counsel filed an application to withdraw and Turner/Finley br ief, Kimbro had a right to proceed immediately either pro

se or with privately

- retained counsel. She did not have to wait for this Court to act on the application

. Muzzy , 141 A.3d at 512 (“i f counsel files a petition to withdraw as appellate counsel in this Court, the letter to the client, inter alia , shall inform the PCRA petitioner that upon the filing of counsel’ s petition to withdraw, the petitioner

- appellant has the immediate right to pr oceed in the appeal pro se or thro ugh privately

- retained counsel” (emphasis omitted) ). We conclude that counsel failed to comply with the dictates of Turner/Fin l e y . Further, because counsel’s petition to withdraw on appeal was based solely on his mistaken conclusion that the PCRA petition was untimely, we conclude that Kimbro was effectively deprived of her right to counsel on appeal, and remand for the appointment of new counsel. See Commonwealth v. Karanicolas , 836 A.2d 940, 947

- 48 (Pa.Super. 2003). The PCRA court shall appoint new counsel within 30 days of the date of this memorandum. New counsel shall file an advocate’s brief, or a Turner/Finley brief and petition to withdraw , within 60 days of appointment by the PCRA
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Case remanded , with instruct ions

. Petition to withdraw denied. Jurisdiction r etained

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/3/2020