J-S55019-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TEONIA TERRI KIMBRO 

Appellant

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 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 Pa.C.S.A. §§ 9541-9546, as 

meritless. Kimbro’s counsel has filed a Turner/Finley

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/Finley brief. Further, because counsel on appeal incorrectly 

concluded Kimbro’s PCRA petition was untimely, we conclude Kimbro was 

effectively deprived of counsel, and remand for the appointment of new 

appellate counsel.

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* 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).
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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 petition 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 on her pro se motion. The PCRA court appointed 

William J. Hathaway, Esquire, as counsel. Counsel filed a Turner/Finley nomerit letter and a petition to withdraw as counsel, claiming Kimbro’s petition 

was untimely and, even if not untimely, there were no meritorious 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 presented with a brief pursuant to Turner/Finley, we first 

determine whether the brief meets the procedural requirements of 

Turner/Finley. See Commonwealth v. Wrecks, 931 A.2d 717, 721 

(Pa.Super. 2007). A Turner/Finley brief must: (1) detail the nature and 

extent of counsel’s review of the case; (2) list each issue the petitioner wishes 

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2 Kimbro submitted pro se filings, including a motion to appoint replacement 

counsel. 
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to have reviewed; and (3) explain counsel’s reasoning for concluding that 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 withdraw, 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 

independent review of the petitioner’s issues. Commonwealth v. Muzzy, 

141 A.3d 509, 511 (Pa.Super. 2016).

Counsel has failed to comply with Turner/Finley. In his one and onehalf 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 address the patent untimeliness of the filing of the instant 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 provides 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 PCRA 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 

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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 contains no such alternate conclusion. 
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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 Supreme 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 judgment 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 was 

untimely, counsel also failed to establish he served a copy of the

Turner/Finley brief on Kimbro and failed to properly inform her of her rights 

following the filing of a Turner/Finley brief and petition to withdraw. In the 

brief, counsel claims he “served a copy of this Finley brief and application to 

withdraw as counsel contemporaneous 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 attach 
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the alleged letter to the petition to withdraw and therefore this Court 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 

Court 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 brief, 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 (“if 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 proceed in 

the appeal pro se or through privately-retained counsel” (emphasis omitted)).

We conclude that counsel failed to comply with the dictates of 

Turner/Finley. 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 

court.
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Case remanded, with instructions. Petition to withdraw denied. 

Jurisdiction retained. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/3/2020