Opinion
239 WDA 2023
02-06-2024
COMMONWEALTH OF PENNSYLVANIA v. THOMAS F. COOK Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered February 2, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003936-2009
BEFORE: DUBOW, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM
MURRAY, J.
Thomas F. Cook (Appellant) appeals, pro se, from the Post Conviction Relief Act (PCRA) court's order dismissing his "Motion for Specific Performance of Plea Agreement." After careful consideration, we vacate and remand for further proceedings.
On August 20, 2009, at CP-02-CR-3936-2009 (No. 3936), Appellant entered a guilty plea to one count of burglary. The trial court subsequently sentenced Appellant to serve 8 to 16 months' incarceration, to be served concurrently with the sentence imposed at No. 3040. Appellant did not file post-sentence motions or a notice of appeal at No. 3040.
18 Pa.C.S.A. § 3502. Appellant simultaneously pled guilty to two counts of burglary at CP-02-CR-3940-2009 (No. 3940). At No. 3940, the trial court sentenced Appellant to 8 to 16 months in prison, followed by one year of probation. Appellant does not challenge the plea agreement or judgment of sentence entered at No. 3940.
In 2011, Appellant entered a guilty plea, in an unrelated case, to burglary, aggravated assault, and kidnapping (the 2011 case). See PCRA Court Opinion, 6/8/23, at 1. In later proceedings, Appellant claimed that the Commonwealth improperly induced this guilty plea by threatening to seek a mandatory sentence based on his prior conviction at No. 3936.
Section 9714 of the Sentencing Code governs sentences for second and subsequent offenses of designated "crimes of violence." 42 Pa.C.S.A. § 9714(a). The version of Section 9714(g) (defining "crime of violence") in effect through September 2011 included "burglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present." 42 Pa.C.S.A. § 9714(g) (emphasis added).
On July 25, 2022, at No. 3936, Appellant filed a pro se "Motion for Specific Performance of Plea Agreement." Appellant averred the
Commonwealth had "violated the terms of the plea agreement ... by disregarding the fact that [Appellant] plead guilty upon agreement to a specific charge, burglary of a home with no person present." Motion for Specific Performance, 7/25/22, ¶ 11 (emphasis added, some capitalization altered). Appellant sought "specific performance" of the plea agreement by obtaining "an official verification by the Commonwealth that it accepted [Appellant's] guilty plea to the charge of burglary of a home with no person present...."
Id., ¶ 12. Importantly, for purposes of the 2011 case, such a clarification would preclude application of a mandatory sentence at No. 3936 based upon his conviction of a prior "crime of violence."
A transcript of the guilty plea proceeding was included in the certified record; however, no written plea colloquy appears of record.
The PCRA court construed Appellant's motion for specific performance as a petition filed pursuant to the PCRA. The PCRA court appointed counsel and granted Appellant leave to file an amended petition within 90 days. PCRA Order, 10/20/22. On December 28, 2022, appointed counsel Suzanne Swan, Esquire (Counsel), filed a motion to withdraw and a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
In her motion, Counsel concluded Appellant is not entitled to relief under contract law principles, "because he did[,] in fact, receive the benefit of his bargain through the specific performance of the terms of the plea agreement." Motion to Withdraw as Counsel, 12/28/22, at ¶ 4. She further opined that Appellant is not entitled to relief under the PCRA, "because he is no longer serving a sentence." Id. at ¶ 5. On January 11, 2023, the PCRA court granted Counsel's motion to withdraw and issued Pa.R.Crim.P. 907 notice of its intention to dismiss Appellant's PCRA petition without a hearing.
The trial court's notice summarily concluded "[t]he claims set forth in the [p]etition are without merit." Notice of Intention to Dismiss, 1/11/23, at 1 (unpaginated).
On February 1, 2023, Appellant simultaneously filed pro se "Objections to Rule 907 Notice" and a "Motion for Leave to Amend PCRA Petition." He asserted Counsel failed to meaningfully consult with him concerning his argument that the PCRA court improperly construed his motion as a PCRA petition. Further, Appellant claimed the factual allegations in the 2011 case alerted him to the breach of the terms of his plea agreement at No. 3936.
Throughout Appellant's brief, his objections, and his initial motion for specific performance, he refers to events that purportedly transpired in an unrelated case. "It is black letter law in this jurisdiction that an appellate court cannot consider anything which is not part of the record in the case. That is because for purposes of appellate review, what is not of record does not exist." Commonwealth v. Johnson, 33 A.3d 122, 126 n.6 (Pa. Super. 2011) (citations omitted). Thus, we cannot consider any argument concerning this unrelated case.
Appellant alleged he received two letters from Counsel. Appellant appended the first letter, dated November 15, 2022, which indicated Counsel's appointment in the matter. Appellant attached a second letter he claims he mailed to PCRA counsel, dated November 19, 2022, wherein he requested that Counsel telephone him to discuss his case. See Objections, 2/1/23, at 2, Exhibit A, Exhibit B. He contends Counsel's second letter was the only other communication he received, and consisted of Counsel's "no merit" letter of December 28, 2022. Id. at 2.
Appellant requested leave to amend his PCRA petition, asserting that he had not intended to file a PCRA petition and would "fully articulate his argument" through subsequent filings. He reiterated he had no opportunity to consult with Counsel and maintained that "the interests of justice require[d] amendment to his PCRA petition." Motion for Leave to Amend PCRA Petition, at 1 (unpaginated).
On February 2, 2023, the PCRA court denied Appellant's request to amend his PCRA petition and formally dismissed the petition. Appellant filed a timely pro se notice of appeal. Both the PCRA court and Appellant have complied with Pa.R.A.P. 1925.
On appeal, Appellant presents the following issues:
1. Did the PCRA Court abuse its discretion/commit an error of law when it DISMISSED Appellant's PCRA Petition without a hearing by plainly stating that Appellant's claims set forth in said Petition were without merit despite Appellant demonstrating in his Objections to Rule 907 Notice that his plea agreement to the factual scenario of "Burglary of a Home with No Person Present" by definition disqualifies such offense for consideration as a "crime of violence" as defined in 42 Pa. C.S. § 9714(g) for purposes of applying the mandatory minimum sentencing provisions of 42 Pa.C.S. § 9714(a)(1) and that clarification of this issue is directly material to Appellant's plea agreement and his ability to seek specific performance of said plea agreement?[] Did the PCRA Court abuse its discretion/commit an error of law when it DISMISSED Appellant's PCRA Petition without first making a determination of what Appellant's plea bargain constituted?
2. Did the PCRA Court abuse its discretion/commit an error of law when it allowed [Counsel] to withdraw as counsel despite Appellant demonstrating in his Objections to Rule 907 Notice that [Counsel] had never communicated with Appellant concerning his PCRA Petition (a simple Motion for Specific Performance of Plea Agreement) before filing [Counsel's] Turner/Finley "No Merit" letter, thus depriving Appellant of effective counsel rising to the level of an "uncounseled petition" due to PCRA Counsel Swan's failure to provide "meaningful representation"?
3. Did the PCRA Court abuse its discretion/commit an error of law when it failed to certify its own independent review of the record before granting [Counsel's] Motion to Withdraw and agreeing with [Counsel's] Turner/Finley "No Merit" letter that Appellant's PCRA Petition was without merit in violation of the standards set forth in Turner/Finley []?[] Did the PCRA Court abuse its discretion/commit an error of law by failing to set forth its reasons for dismissal in its Rule 907 Notice?
4. Did [Counsel] fail to comply with the technical requirements of Turner/Finley when [Counsel] advised Appellant in its "No Merit" letter that Appellant's right to proceed pro se or to retain private counsel took effect only if withdrawal was permitted by the PCRA Court in contradiction to the holdings of Commonwealth v. Bush?[] Did the PCRA Court abuse its discretion/commit an error of law when it allowed [Counsel] to withdraw as counsel despite failing to comply with this requirement of Turner/Finley?
5. Did the PCRA Court abuse its discretion/commit an error of law when it DENIED Appellant's Motion for Leave to Amend PCRA Petition despite Pa. R.Crim.P. 905 stating that "amendment shall be freely allowed to achieve substantial justice"?Appellant's Brief at 2-3 (citations omitted; footnote added; reordered for disposition).
Commonwealth v. Bush, 197 A.3d 285 (Pa. Super. 2018).
Before we address the merits of Appellant's claims, we must determine whether this Court has jurisdiction. At the outset, the PCRA court construed Appellant's motion as a PCRA petition. This Court has held that
[a] petition for collateral relief will generally be considered a PCRA petition if it raises issues cognizable under the PCRA. See Commonwealth v. Peterkin, 554 Pa. 547, 553, 722 A.2d 638, 640 (1998); 42 Pa.C.S.A. § 9542 (stating PCRA shall be sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for same purpose). The plain language of the PCRA mandates that claims which could be brought under the PCRA, must be brought under the PCRA. Commonwealth v. Hall, 565 Pa. 92, 96-97, 771 A.2d 1232, 1235 (2001).Commonwealth v. Kerns, 220 A.3d 607, 611 (Pa. Super. 2019).
Appellant's request for relief implicates specific performance of an alleged term of his plea agreement. See Motion for Specific Performance of Plea Agreement, 7/25/22. Unlike a petition seeking relief cognizable under the PCRA, "a collateral petition to enforce a plea agreement is regularly treated as outside the ambit of the PCRA and under the contractual enforcement theory of specific performance." Kerns, 220 A.3d at 611-12 (emphasis added). Accordingly, Appellant correctly labeled his initial filing, and requested relief that is not jurisdictionally time-barred under the PCRA.
Even if the PCRA were the appropriate vehicle for Appellant's claims, Appellant is 1) time-barred given that his judgment of sentence became final approximately ten years ago; and 2) ineligible for relief given that he is no longer serving a sentence. See 42 Pa.C.S.A. § 9545(b) (providing all PCRA petitions must be filed within one year of the judgment of sentence becoming final, unless the petitioner meets one of the enumerated exceptions); 42 Pa.C.S.A. § 9543(a)(1)(i) (providing that eligibility for relief under the PCRA is dependent on the petitioner currently serving a sentence of imprisonment, probation, or parole for the crime).
Appellant is indigent. Appellant timely alleged Counsel's ineffectiveness in his February 1, 2023, pro se response to the Rule 907 notice. The PCRA court did not address Appellant's allegations in its order denying PCRA relief, and summarily rejected these allegations in its Rule 1925(a) opinion. In view of the PCRA court's failure to address Appellant's allegations of PCRA counsel's ineffectiveness, we determine a remand with instructions for the appointment of substitute counsel is appropriate.
This course of action comports with this Court's recent analogous decision in Commonwealth v. Gillins, 302 A.3d 154 (Pa. Super. 2023). In Gillins, the defendant "was sentenced in federal court to a life sentence on one count of Continuing Criminal Enterprise and to a concurrent sentence of 240 months' incarceration for money laundering." Id. at 157 (footnote omitted). Shortly after sentencing, the defendant entered a negotiated guilty plea to third-degree murder; the trial court ordered its sentence on this charge to run concurrently with his federal sentence. Id. Unbeknownst to the trial court and parties, federal jurisprudence precluded this term of the negotiated plea agreement. Id. In 2012, more than ten years after his state sentence was imposed, the defendant discovered his federal sentence was held in abeyance until completion of his state sentence, thus rendering him ineligible for a presidential commutation of his federal sentence. Id.
The defendant filed his first PCRA petition in 2017, "alleging ineffective assistance of plea counsel, breach of his plea agreement, and an invalid guilty plea." Id. at 158. Appointed PCRA counsel submitted a "no merit" letter and petition to withdraw. Counsel concluded that the defendant's claim was time-barred under the PCRA, and the defendant "had failed to exercise due diligence by waiting 20 years to turn to the court to seek clarification of his sentence." Id. The PCRA court agreed with counsel's timeliness analysis and denied the defendant's petition without a hearing. Id.
Significantly, this Court referred to the appeal's procedural history, wherein a prior panel summarized the defendant's efforts to communicate with his counsel:
Appellant [] alleged that he received a letter from PCRA counsel on January 11, 2019, indicating PCRA counsel's appointment in the matter. Appellant was unable to call PCRA counsel right away to discuss his case because the prison does not immediately process requests to add phone numbers to [a]ppellant's list of approved phone calls. Consequently, [a]ppellant asked a friend to reach out to PCRA counsel and to ask PCRA counsel to set up a phone appointment with [a]ppellant. When PCRA counsel was dismissive of [a]ppellant's friend on the phone, [a]ppellant next asked his brother to contact PCRA counsel. PCRA counsel was also dismissive of [a]ppellant's brother. Appellant emphasized that PCRA counsel never reached out to him to discuss the case, even though in his appointment letter, PCRA counsel had stated that he would contact [a]ppellant once he reviewed [a]ppellant's file. Instead, PCRA counsel simply filed the "no-merit" letter.Commonwealth v. Gillins, 245 A.3d 1100, 1145 EDA 2019 (Pa. Super. filed Dec. 24, 2020) (unpublished memorandum at 3-4). This Court concluded that the PCRA court improperly failed "to confront [a]ppellant's allegations of PCRA counsel's ineffectiveness and the possibility that [a]ppellant's claims fall outside of the PCRA[,]" vacated the PCRA court's order, and remanded the matter for further proceedings. Id. (unpublished memorandum at 11). On remand, the Court directed the PCRA court to
appoint substitute PCRA counsel who must: (1) review [a]ppellant's pro se allegations of PCRA counsel's ineffectiveness; (2) discern whether [a]ppellant's claims fall outside of the PCRA, such that the PCRA's timeliness constraints would not apply; (3) file supplemental briefing limited to these issues within a reasonable time frame; and (4) continue to represent [a]ppellant for the duration of these PCRA proceedings.Id. (unpublished memorandum at 11-12) (footnote omitted). Instantly, as Appellant was unable to develop his claims alleging ineffective assistance of Counsel under circumstances analogous to Gillins, supra, he is entitled to the same treatment.
Accordingly, we vacate the PCRA court's order, remand the case, and direct the PCRA court to appoint new counsel to address Appellant's claims of ineffective assistance of PCRA counsel, including whether Appellant's claim for specific performance fall within the ambit of the PCRA.
Order vacated. Case remanded with instructions. Jurisdiction relinquished.