PCRA counsel cannot litigate a pro se petition: counsel must either file an amended petition or a Turner/Finley motion

Commonwealth v. Lamont Cherry, 2017 PA Super 28 (2/6/2017)

After his murder conviction was affirmed, Mr. Cherry filed a PCRA petition alleging sundry infractions by prior counsel. New counsel was appointed, who neither filed a counseled, amended petition nor a Turner/Finley (see Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)) petition to withdraw.  A hearing was scheduled and, with the Defendant’s assent secured by a colloquy during which Mr, Cherry uttered but 6 words, the matter was submitted on the pleadings. Mr. Cherry’s petition was then dismissed. He appealed, and new counsel was appointed to represent him, who filed a Turner/Finley petition. Private counsel then entered her appearance on the Defendant’s behalf, raising, inter alia, his right to a remand because prior counsel had not done their jobs. The Superior Court vacated the judgment and remanded for new PCRA proceedings.

The Court stated, “When appointed, counsel’s duty is to either (1) amend the petitioner’s pro se Petition and present the petitioner’s claims in acceptable legal terms, or (2) certify that the claims lack merit by complying with the mandates of Turner/Finley. ‘If appointed counsel fails to take either of these steps, our courts have not hesitated to find that the petition was effectively uncounseled.’” (Citations omitted.) This is as clear a statement the Superior Court has made regarding the obligations of PCRA counsel.

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