Com. v. McQueen, G. ( 2022 )

J-S14030-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY MCQUEEN :
:
Appellant : No. 1462 WDA 2021
Appeal from the PCRA Order Entered November 2, 2020
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0000758-2018
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED: OCTOBER 12, 2022
Gregory McQueen (Appellant) appeals nunc pro tunc from the order
entered in the Blair County Court of Common Pleas dismissing his first Post
Conviction Relief Act1 (PCRA) petition.2 Appellant seeks relief from the
judgment of sentence of 5 to 20 years’ incarceration, imposed on April 12,
2019, after his negotiated guilty plea to aggravated assault, persons not to
possess firearms, and possession with intent to deliver a controlled substance
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
2On November 19, 2021, counsel for Appellant timely filed the instant notice
of appeal, which stated it was taken from an order entered on “October 30,
2021.” Appellant’s Notice of Appeal, 11/19/21. A review of the trial court
docket shows no order entered on that date. The PCRA court instead denied
and dismissed Appellant’s first PCRA petition on November 2, 2020.
J-S14030-22
(PWID).3 Counsel for Appellant, Paul Puskar, Esquire (PCRA Counsel), has
filed a petition to withdraw from representation and a brief pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We deny the petition
and direct PCRA Counsel to file an amended application to withdraw that meets
the requirements of Turner/Finley.
On April 12, 2019, Appellant, represented by Anthony Kattouf, Esquire
(Plea Counsel), pleaded guilty to one count each of aggravated assault,
persons not to possess firearms, and PWID. On that same day, Appellant was
sentenced to an aggregate term of 5 to 20 years’ incarceration. At the time
he committed the above crimes, Appellant was on parole and the
Commonwealth stated that it did not “have any input with the State Board of
Probation and Parole” regarding any parole sanction and that it believed “it
would be mandated” that any parole violation sanction and his guilty plea
sentence would run consecutively. N.T. Guilty Plea, 4/12/19, at 11. Appellant
stated he understood that the parole violation may run consecutively to his
sentence. Id.Appellant did not file post-sentence motions or a direct appeal. Instead,
on April 29, 2020, he filed a timely pro se PCRA petition, challenging the
validity of his plea and alleging Plea Counsel’s ineffectiveness for telling him
his guilty plea sentence and parole violation sanction would run concurrently.
____________________________________________
3 18 Pa.C.S. §§ 2702(a)(1), 6105(a)(1); 35 P.S. § 780-113(a)(30).
-2-
J-S14030-22
Appellant’s Motion for Post-Conviction Collateral Relief, 4/29/20, at 2, 4. On
May 11, 2020,4 the PCRA court appointed PCRA Counsel to represent Appellant
for PCRA proceedings. Counsel did not file an amended PCRA petition.
The PCRA court held a hearing on October 27, 2020, where Appellant
acknowledged the Commonwealth stated at the plea hearing that his parole
“hit” and guilty plea sentence may run consecutive. N.T. PCRA H’rg,
10/27/20, at 2-3. However, Appellant’s claim concerned “what [plea] counsel
told him at that time.” Id. at 3. Appellant stated the following at the hearing:
[O]n the day of my sentencing, [Plea Counsel] said they would
not be able to run my sentence concurrent with my parole hit
because he didn’t know what my hit was going to be, and after I
got my hit when I got out of here as of May, they gave me a two-
year hit, which he said that would be run concurrent with my
sentence[.]
Id. at 3-4. Plea Counsel testified he did not make any promises to Appellant
about his parole sanction and guilty plea sentence running concurrently and it
was Appellant’s choice to accept the plea agreement. Id. at 10-11.
On November 2, 2020, the PCRA court issued an order and
accompanying opinion denying and dismissing Appellant’s petition. Four
months later, on March 11, 2021, Appellant filed a pro se “Notice of Appeal
Nunc Pro Tunc.” On March 15th, the PCRA court scheduled a hearing, but
before that hearing could occur, this Court issued a per curiam rule to show
____________________________________________
4The PCRA court’s November 2, 2020, opinion states it appointed Attorney
Puskar on this date, but the docket does not reflect any order doing so. See
PCRA Ct. Op., 11/2/20, at 2.
-3-
J-S14030-22
cause why his appeal should not be quashed as untimely, to which neither
Appellant nor PCRA Counsel responded. The appeal was then quashed as
untimely. See Commonwealth v. McQueen, 383 WDA 2021 (Order,
7/27/21).
On November 5, 2021, Appellant filed a second pro se PCRA petition
raising PCRA Counsel’s ineffectiveness for failing to file a proper appeal, and
requesting his rights be reinstated. The PCRA court held the previously
scheduled hearing that same day. On November 10th, the court reinstated
nunc pro tunc Appellant’s right to file an appeal from the November 2, 2020,
denial and dismissal of his first PCRA petition. PCRA Counsel filed a timely
notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal, stating there were no “non-frivolous” issues
to be raised on appeal.5 Appellant’s Statement of Matters Complained of on
Appeal, 12/7/21.
On January 28, 2022, PCRA Counsel filed, with this Court, a “Brief in
Support of Application to Withdraw as Counsel,” where he raises the following:
Whether Counsel should be permitted to withdraw, as a review of
the record shows that there are no non-frivolous issues upon
which an appeal could be based.
PCRA Counsel’s Brief in Support of Application to Withdraw as Counsel at 5.
____________________________________________
5 Attorney Puskar continued to represent Appellant despite the prior
allegations of ineffective assistance.
-4-
J-S14030-22
However, PCRA Counsel did not file a contemporaneous application to
withdraw. This Court, on February 4, 2022, directed him to file an application,
with a copy of a notification of rights letter he sent to Appellant. This Court’s
order twice advised PCRA Counsel to furnish a copy of the application to
withdraw and supporting brief to Appellant. Order, 2/4/22. Counsel filed the
application on February 14th, which stated he did “not believe there [were]
any non-frivolous issues to be raised on appeal.” PCRA Counsel’s Application
to Withdraw as Counsel, 2/14/22.
First, we note that an application to withdraw as counsel on a direct
appeal must include a brief compliant with Anders v. California, 386 U.S.
738 (1967), and allege the appeal would be “wholly frivolous.”
Commonwealth v. Wrecks, 931 A.2d 717, 720 (Pa. Super. 2007). In
contrast,
counsel petitioning to withdraw from PCRA representation must
proceed not under Anders but under . . . Turner . . . and . . .
Finley[.] Similar to the Anders situation, Turner/Finley counsel
must review the case zealously. See Commonwealth v.
Mosteller, . . . 633 A.2d 615, 617 (Pa. Super. 1993).
Turner/Finley 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 the petitioner wants to have reviewed, explaining
why and how those issues lack merit, and requesting permission
to withdraw. Commonwealth v. Karanicolas, . . . 836 A.2d
940, 947 (Pa. Super. 2003).
Id. at 721. Further, “Anders counsel must not argue against the client’s
interests while Turner/Finley counsel must do so, articulating why the client’s
claims have no merit.” Wrecks, 931 A.2d at 722.
-5-
J-S14030-22
Here, PCRA Counsel has consistently concluded Appellant raised no non-
frivolous issues, but the proper standard under Turner/Finley is whether
Appellant has raised claims that lack merit. See Wrecks, 931 A.2d at 721.
Nevertheless, this mischaracterization is not a fatal flaw to PCRA Counsel’s
petition, where Anders affords higher protections than Turner/Finley and as
such, an appeal deemed to be wholly frivolous would also be deemed to lack
merit, a lesser standard. See id. However, we conclude PCRA Counsel’s
petition does not meet the requirements of Turner/Finley on other grounds.
When filing a Turner/Finley Brief,
[c]ounsel 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.
Wrecks, 931 A.2d at 721 (emphases added & citation omitted).
In his application to withdraw, PCRA Counsel attached a copy of a letter
that he sent to Appellant. PCRA Counsel’s Application to Withdraw as Counsel,
2/14/22, Exhibit A. PCRA Counsel’s letter stated he was enclosing a copy of
the notice of appeal, the Rule 1925(b) statement, and the trial court’s order
and opinion, and informed Appellant of his right to retain new counsel or
proceed pro se. However, the correspondence does not indicate that a copy
was sent to Appellant, as required by Turner/Finley. Therefore, PCRA
Counsel did not comply with Wrecks. See Wrecks, 931 A.2d at 721.
Counsel’s letter also stated the following:
-6-
J-S14030-22
During our video conference on November 5, 2021, the only issue
you raised with me was the original issue you raised in your PCRA
Petition. I explained to you that the [trial court] had ruled against
you on that issue. I further explained to you that, on appeal, you
had to show that the [trial court] made a mistake on the law or
had made a decision on facts which were not in the record.
Because it was my opinion that he did not do either of those
things, there was no non-frivolous issue to be raised on appeal.
That opinion is based on a review of the record.
PCRA Counsel’s Application to Withdraw as Counsel, 2/14/22, Exhibit A 6
PCRA Counsel’s letter to Appellant does not adequately explain the
claims he reviewed and deems to be frivolous. Instead, it identifies the claim
only as “the original issue,” without further explanation. See PCRA Counsel’s
Application to Withdraw as Counsel, Exhibit A. Accordingly, we cannot
determine that PCRA Counsel complied with the requirements of
Turner/Finley. See Wrecks, 931 A.2d at 721. Thus, we direct PCRA
Counsel to submit an amended application complying with the requirements
of Turner/Finley, and to send Appellant a copy of the brief and amended
application within 30 days of this memorandum’s filing. Appellant shall then
have 30 days to file a brief, if he wishes, in support of his claims.
PCRA Counsel’s petition to withdraw denied. PCRA Counsel directed to
file, within 30 days, an amended Turner/Finley petition. Appellant shall have
____________________________________________
6We note that PCRA Counsel’s brief is an almost exact copy of the trial court’s
opinion. See Trial Ct. Op., 12/17/21, Exhibit A, at 1-10 (adopting its prior
October 27, 2020, opinion in disposing of Appellant’s current claim on appeal);
compare PCRA Counsel’s Brief in Support of Application to Withdraw as
Counsel, at 5-12.
-7-
J-S14030-22
30 days from that date to file a response if he so chooses. Panel Jurisdiction
retained.
-8-