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[U] Commonwealth v. Johnson

Superior Court of Pennsylvania

February 18, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
ARMONI MASUD JOHNSON, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order entered on November 6, 2012 in the Court of Common Pleas of Luzerne County, Criminal Division, No. CP-40-CR-0002193-2010

BEFORE: DONOHUE, SHOGAN and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

Armoni Masud Johnson ("Johnson") appeals from the Order denying his "Post-Sentence Motion" to dismiss his charges pursuant to Pennsylvania Rule of Criminal Procedure 600. Additionally, Matthew P. Kelly, Esquire ("Kelly"), Johnson's counsel, has filed a Petition to Withdraw as counsel. We affirm, and grant Kelly's Petition to Withdraw.

On July 26, 2010, Johnson was charged with possession of a controlled substance (heroin). Johnson filed a pre-trial Rule 600 Motion, which the trial court denied. Thereafter, a jury found Johnson guilty of the above-mentioned crime. On January 17, 2012, the trial court sentenced Johnson to a minimum of 50 days and a maximum of 1 year at the Luzerne County Correctional Facility, and immediately paroled him. Johnson subsequently violated the terms of his parole and on June 12, 2012, a Petition to Revoke Parole was filed. At the parole revocation hearing on September 5, 2012, Johnson admitted to the violation. The trial court accepted the recommendation of the probation department that Johnson be remanded to the Luzerne County Correctional Facility to complete his sentence, which expired on December 8, 2012. The trial court also advised Johnson of his right to appeal. Johnson did not file a direct appeal.

Instead, on October 11, 2012, Johnson filed a "Post-Sentence Motion, " claiming that his pre-trial Rule 600 Motion should have been granted. The Motion was denied on November 6, 2012, as being untimely filed. Johnson filed a pro se Notice of Appeal from this denial. Thereafter, Kelly was appointed as Johnson's counsel.

Prior to addressing Kelly's Petition to Withdraw as counsel, we must ascertain whether Johnson's filing was a post-sentence motion or whether it should have been treated as a petition for relief under the Post Conviction Relief Act ("PCRA"). Based upon this determination, we can establish whether counsel's request to withdraw should be evaluated under Anders v. California, 386 U.S. 738, 744 (1967) or Turner/Finley.[1]

Here, Johnson's judgment of sentence became final on October 5, 2012, as he did not file a timely appeal from the revocation of his parole on September 5, 2012. See Pa.R.A.P. 903(a); see also Pa.R.Crim.P. 708(E) (stating that "[a] motion to modify a sentence imposed after a revocation shall be filed within 10 days of the date of imposition. The filing of a motion to modify sentence will not toll the 30-day appeal period."). Thus, Johnson's post-sentence Motion should have been treated as a PCRA Petition. See Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.Super. 2013) (reiterating "that all motions filed after a judgment of sentence is final are to be construed as PCRA petitions."). Accordingly, we must address Kelly's Petition to Withdraw under Turner/Finley.[2]

Pursuant to Turner/Finley, independent review of the record by competent counsel is required before withdrawal on collateral appeal is permitted. Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). In Pitts, our Supreme Court explained that such independent review requires proof of

1)A "no-merit" letter by PCRA counsel detailing the nature and extent of his review;
2)The "no-merit" letter by PCRA counsel listing each issue the petitioner wished to have reviewed;
3)The PCRA counsel's "explanation, " in the "no-merit" letter, of why the petitioner's ...

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