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[U] Commonwealth v. Lubawski

Superior Court of Pennsylvania

March 13, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
WALTER DARRELL LUBAWSKI, SR., Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order entered on June 18, 2013 in the Court of Common Pleas of Allegheny County, Criminal Division, No. CP-02-CR-0000231-2012

BEFORE: BOWES, ALLEN and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

Walter Darrell Lubawski, Sr. ("Lubawski") appeals, pro se, from the dismissal of his Petition filed pursuant to the Post Conviction Relief Act ("PCRA").[1] We reverse and remand.

On August 13, 2012, pursuant to a negotiated agreement, Lubawski pled guilty to one count each of theft by unlawful taking, receiving stolen property, and criminal conspiracy.[2] Lubawski was sentenced to an aggregate term of two to four years in prison, followed by six years of probation, and ordered to pay restitution.

On December 11, 2012, Lubawski filed, pro se, his first PCRA Petition. On January 2, 2013, the PCRA court appointed counsel, John Ciroli, Esquire ("Attorney Ciroli"), for Lubawski. On May 9, 2013, Attorney Ciroli wrote Lubawski a letter indicating that he would be filing a "no-merit" letter and a petition to withdraw. On May 14, 2013, Attorney Ciroli filed a no-merit letter and a Petition to Withdraw pursuant to Turner/Finley.[3] Later that day, the PCRA court entered an Order granting Attorney Ciroli's Petition to Withdraw and issued a Notice of Intent to Dismiss Lubawski's PCRA Petition ("Notice of Intent to Dismiss").

On May 21, 2013, [4] Lubawski filed a response to the PCRA court's Notice of Intent to Dismiss, indicating that he did not receive a copy of the Turner/Finley no-merit letter or the Petition to Withdraw. On May 24, 2013, the PCRA court issued an Order granting Lubawski an additional thirty days (until June 24, 2013) to respond to the Notice of Intent to Dismiss. In that same Order, the PCRA court directed the Office of the Public Defender to serve Lubawski with a copy of the Turner/Finley no-merit letter, and to inform the court after complying with this directive. There is no evidence of record indicating compliance with this directive by the Office of the Public Defender.

On May 29, 2013, Lubawski filed a Motion for Extension of Time to respond to the Notice of Intent to Dismiss, indicating that he was being moved from SCI Greensburg to another prison, and that the law library at SCI Greensburg was closed in anticipation of the facility's closure.[5]

On June 10, 2013, Lubawski filed another response to the Notice of Intent to Dismiss, indicating, once again, that he had not received the Turner/Finley no-merit letter, and that Attorney Ciroli's May 9, 2013 letter did not suffice as a Turner/Finley no-merit letter. On June 18, 2013, the PCRA court denied Lubawski's PCRA Petition. Lubawski filed a timely Notice of Appeal.

On appeal, Lubawski contends that he never received Attorney Ciroli's Turner/Finley no-merit letter, and the PCRA court erred by refusing to permit him to respond to issues raised in the Turner/Finley no-merit letter. Brief for Appellant at 9.

When examining a post-conviction court's grant or denial of relief, we are limited to determining whether that court's findings are supported by the record and whether the court's order is free of legal error. Commonwealth v. Stark, 658 A.2d 816, 818 (Pa. Super. 1995).

Counsel may withdraw at any stage of collateral proceedings if, in the exercise of his or her professional judgment, counsel determines that the issues raised in those proceedings are without merit, and if the court concurs with counsel's assessment. Commonwealth v. Bishop, 645 A.2d 274, 275 (Pa. Super. 1994). However, before PCRA counsel may withdraw, he must provide the PCRA petitioner with a copy of the petition to withdraw that includes a copy of both the no-merit letter and a statement advising the petitioner that, in the event the PCRA court grants the petition to withdraw, the petitioner has the right to proceed pro se, or with the assistance of privately retained counsel. Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011). Further, the PCRA court may not enter an Order dismissing a PCRA petition until at least twenty days after the petitioner has been served with a copy of the Pa.R.Crim.P. 907 notice of intent to dismiss by the PCRA court or a Turner/Finley no-merit letter. Commonwealth v. Hopfer, 965 A.2d 270, 275 (Pa. Super. 2009). The PCRA court may not grant counsel's request to withdraw from representation or dismiss the PCRA petition sooner than twenty days before the petitioner receives counsel's official request for withdrawal. Id. at 271.

Here, the PCRA court granted Attorney Ciroli's Petition to Withdraw on the same day that it was filed, thereby depriving Lubawski of any opportunity to respond to the Petition. Further, there is no indication in the record that Lubawski ever received a copy of either the Petition to Withdraw or the Turner/Finley no-merit letter. Although the PCRA court directed the Office of the Public Defender to serve Lubawski with a copy of the Turner/Finley no-merit letter, and inform the PCRA court that it had done so, there is no indication in the record that the Office of the Public Defender effectuated such service. Moreover, the PCRA court did not direct the Office of the Public Defender to serve Lubawski with a copy of the Petition to Withdraw, and there is no indication in the record that any such service was made upon Lubawski.

Thus, we conclude that the PCRA court erred by entering its May 14, 2013 Order granting Attorney Ciroli's Petition to Withdraw and also by entering its June 18, 2013 Order dismissing Lubawski's PCRA Petition. Further, the PCRA court failed to ensure that Lubawski had been served with a copy of the Petition to Withdraw at least twenty days prior to the entry of these Orders, in violation of our ruling in Hopfer.[6] See Hopfer, 965 A.2d at 275.

Accordingly, we reverse the PCRA court's May 14, 2013 Order granting Attorney Ciroli's Petition to Withdraw and its June 18, 2013 Order dismissing Lubawski's PCRA Petition. We remand with the instruction that Attorney Ciroli provide service on Lubawski of the Turner/Finley no-merit letter and the Petition to Withdraw. Following confirmation by the PCRA court of such service upon Lubawski, the PCRA court may then provide notice to Lubawski of its intent to grant the Petition to Withdraw and dismiss the PCRA Petition or conduct an evidentiary hearing on any claims raised by Lubawski.

Orders reversed.

Case remanded with instructions.

Jurisdiction relinquished.

Judgment Entered.


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