J

- A18044

- 15

NON
- PRECEDENTIAL DEC ISION
- 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

- ente red 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.J

- A18044

- 15

- 2

-

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 consolid ated, 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 Atto rney 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 6 t h , 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 a n[d] practices contrary to Federal law[, which] are not encumbered by time limits or procedural defaults....” ...

On October 7 th , [the PCRA court] entered an Order denying Greene’s Motion to Reinstate, again noting that his Petition was both untimely and wi thout merit. On October 29, [2014,] Greene[, pro se ,] filed a Motion to Correct and/or Modify Illegal Sentence

....J

- A18044

- 15

- 3

-

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 appea l, 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 Sta tes 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 uncons titutional, 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 i n 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 toJ

- A18044

- 15

- 4

-

represent the def endant 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 prese nt 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

represe ntation, 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 a dded). “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 p rivately retained counsel, or not at all.” Turner , 544

A.2d at 928

- 29. 2 However, w hen 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.J

- A18044

- 15

- 5

-

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 Mo tion 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 relie f. 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 T his 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 “ Tur ner/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 ). Acc ord 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.J

- A18044

- 15

- 6

-

untimely, the record reflects t hat 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 r eversed. Case remanded for further proceedings consistent
with this Memorandum. Superior Court jurisdiction relinquished.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/29/2015