J-A18044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

DONNELL CORTHROY GREENE, :

:

Appellant : No. 2055 MDA 2014

Appeal from the PCRA Order entered on November 8, 2014

in the Court of Common Pleas of Lebanon County,

Criminal Division, No(s): CP-38-CR-0000977-2011;

CP-38-CR-0000980-2011

BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JULY 29, 2015

Donnell Corthroy Greene (“Greene”), pro se, appeals from the Order 

denying his Petition for Relief filed pursuant to the Post Conviction Relief Act 

(“PCRA”).1 We reverse and remand for further proceedings.

In its Opinion, the PCRA court summarized the history giving rise to 

the instant appeal as follows:

On June 11, 2011, officers stopped Greene for speeding. 

Detecting marijuana, the officers requested Greene to step out 

of the vehicle. He complied, but when the officer walked back to 

his car, Greene re-entered his vehicle and fled at high speed. 

Losing control, [Greene’s vehicle] entered the opposing lane of 

traffic and struck a pickup truck. Though he tried to flee on foot, 

Greene was apprehended. A subsequent search of his vehicle 

yielded over 53 grams of heroin and 344.4 grams of cocaine.

On or about August 9, 2011, Greene was charged with 

Possession with Intent to Deliver (1) heroin and (2) cocaine[,] 

 

1 42 Pa.C.S.A. §§ 9541-9546.
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and with Possession of (3) cocaine and (4) heroin. He was also 

charged with (1) Aggravated Assault by Vehicle while Driving 

Under the Influence, (2) Fleeing and Eluding, (3) Reckless 

Endangerment, (4) Resisting Arrest, (5) causing an Accident 

Damaging Property, and (6) Driving Under the Influence of a 

Controlled Substance. These two cases were consolidated, and 

Greene pled guilty to all ten counts. Via his written and verbal 

guilty pleas, Greene acknowledged that he understood his plea 

agreement and requested that [the trial court] accept and apply 

it. Finding that the plea was knowing and voluntary, [the trial 

court] accepted it and[, on November 9, 2011,] sentenced him 

to an aggregate of five and one-half to 14 years in a State 

Correctional Facility. 

On June 17, 2014, Greene filed a boilerplate Petition for 

Habeas Corpus Relief based upon Alleyne v. United States, 

133 S. Ct. 2151 (2013). His Petition was obviously prepared by 

someone else for an unrelated case. Greene filled in his name in 

various blanks without providing case-specific arguments. Since 

the Petition was difficult to understand, [the PCRA court] 

appointed Erin Zimmerer, Esq. [“Attorney Zimmerer”], to 

represent Greene and directed counsel to file an Amended 

[PCRA] Petition. [Attorney] Zimmerer explained to Greene that 

his [P]etition was meritless and not timely. According to 

Attorney Zimmerer’s Motion [to Withdraw Greene’s PCRA 

Petition,] ... Greene stated that he understood this and 

understood that counsel would be withdrawing his Petition.

However, Greene, acting pro se, [filed a Motion to] 

reinstate[] his Petition on October 6th, claiming that he 

understood only that [Attorney] Zimmerer was withdrawing from 

representation, but not that she would be withdrawing his 

[P]etition. Even if the [PCRA] does not apply, Greene argue[d], 

he should be afforded relief “under habeas corpus an[d] 

practices contrary to Federal law[, which] are not encumbered 

by time limits or procedural defaults....” ...

On October 7th, [the PCRA court] entered an Order denying 

Greene’s Motion to Reinstate, again noting that his Petition was 

both untimely and without merit. On October 29, [2014,] 

Greene[, pro se,] filed a Motion to Correct and/or Modify Illegal 

Sentence ....
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PCRA Court Opinion, 1/5/15, at 3-5. The PCRA court denied Greene’s Motion 

on November 4, 2014. Thereafter, Greene filed the instant appeal, followed 

by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of Errors 

Complained of on Appeal.

Greene now presents the following issues for our review:

A. Whether the sentence in this case is illegal and violates the 

Sixth Amendment to the United States Constitution because 

the sentencing [j]udge relied upon conduct not found by a 

[j]ury or admitted in a plea[?]

B. Whether the Petition in this case was timely filed pursuant to 

42 Pa.C.S.A. § 9545(b)(1)(i) and (ii)?

C. Whether under Teague v. Lane, 489 U.S. 288 (1989) and its 

progeny[,] the United States Supreme Court’s decision in 

Alleyne v. United States, 133 U.S. 2151 (2013) should be 

applied retroactively?

D. Whether the [a]pplication of the [m]andatory provision in 

sentencing, now determined to be unconstitutional, vitiates 

timeliness and due diligence as bars to the relief sought?

E. Whether having declared the mandatory provision relied upon 

herein illegal, allowing [Greene] to continue to suffer that 

sentence[,] constitutes cruel and unusual punishment in 

violation of the Eight Amendment to the United States 

Constitution?

Brief for Appellant at 3. Before addressing Greene’s claims, we first must 

address the procedural posture of the instant appeal. 

As noted above, Greene filed his first PCRA Petition pro se. The PCRA 

court properly appointed counsel, as this was Greene’s first PCRA Petition. 

See Pa.R.Crim.P. 904(A) (providing that where an unrepresented defendant 

satisfies the court he is indigent, the judge shall appoint counsel to 
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represent the defendant on a first petition for PCRA relief); Commonwealth 

v. Padden, 783 A.2d 299, 308 (Pa. Super. 2001) (stating that a first-time 

pro se petitioner under the PCRA is entitled to the benefit of the assistance 

of counsel to help identify and properly present potentially meritorious issues 

for the trial court’s consideration). Upon review, Attorney Zimmerer 

concluded that Greene’s PCRA Petition lacked merit. Motion to Withdraw 

PCRA Petition, 8/4/14, at ¶ 4. Rather than petitioning to withdraw from 

representation, in accordance with Commonwealth v. Turner, 518 Pa. 

491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 

(Pa. Super. 1988) (en banc), counsel filed a Petition to Withdraw Greene’s 

PCRA Petition, which the PCRA court granted. 

As this Court has long held, “a criminal defendant has a right to 

representation of counsel for purposes of litigating a first PCRA petition 

through the entire appellate process.” Commonwealth v. Robinson, 970 

A.2d 455, 457 (Pa. Super. 2009) (en banc) (emphasis added). “When, in 

the exercise of [her] professional judgment, counsel determines that the 

issues raised under the [PCRA] are meritless, and when the [PCRA] court 

concurs, counsel will be permitted to withdraw and the petitioner may 

proceed pro se, or by privately retained counsel, or not at all.” Turner, 544 

A.2d at 928-29.2 However, when requesting leave to withdraw, PCRA 

counsel must first file a document pursuant to the requirements of Turner

 

2

 Turner addressed the procedure for withdrawing as counsel under the 

Post Conviction Hearing Act, the precursor to the PCRA.
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and Finley. Commonwealth v. Hayes, 596 A.2d 195, 196 n.4 (Pa. Super. 

1991) (en banc).3

Although Attorney Zimmerer believed that Greene’s pro se PCRA 

Petition lacked merit, she failed to comply with the dictates of Turner and 

Finley for withdrawing from representation. The PCRA court granted 

counsel’s Petition, rather than directing counsel to comply with Turner, 

Finley, and their progeny, thereby precluding Greene from “litigating” his 

first PCRA Petition. Since that time, Greene has Petitioned for the 

reinstatement of his pro se PCRA Petition, and filed a Motion to Correct 

and/or Modify Illegal Sentence, both of which were denied without the 

appointment of counsel.4 

Under these circumstances, Greene’s Motion to Correct and/or Modify 

Illegal Sentence should have been considered a Petition for PCRA relief. See 

42 Pa.C.S.A. § 9542 (stating that the PCRA shall be sole means of obtaining 

collateral relief and encompasses all other common law and statutory 

remedies for the same purpose). Even though this Petition is facially 

 

3 This Turner/Finley filing consists of either a brief or a “no-merit” letter 

which describes in detail the nature and extent of the independent review 

undertaken by counsel, lists each issue raised under the PCRA, and explains 

why the claims are without merit. Id. The “Turner/Finley” brief may be 

filed with either the PCRA court or with the appellate court. Id. The 

petitioner is then free to proceed pro se, by privately retained counsel, or 

not at all. Commonwealth v. Dukeman, 605 A.2d at 419 (citing Turner, 

supra). Accord Hayes, 596 A.2d at 196 n.4.

4 We additionally note that the PCRA court did not provide notice of its 

intention to dismiss the Petition without a hearing, as required by 

Pa.R.Crim.P. 907.
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untimely, the record reflects that Greene has not yet “litigated” a first 

petition for PCRA relief. Accordingly, he is entitled to representation.

We therefore reverse the Order of the PCRA court, and remand for the 

appointment of counsel and further proceedings as necessary.

Order reversed. Case remanded for further proceedings consistent 

with this Memorandum. Superior Court jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/29/2015