Opinion
No. 217 EDA 2021
04-06-2022
COMMONWEALTH of Pennsylvania v. James WILLIAMS, Appellant
MEMORANDUM BY COLINS, J.:
James Williams (Appellant) appeals from the order of the Court of Common Pleas of Philadelphia County that dismissed his timely-filed first petition under the Post Conviction Relief Act (PCRA). Upon review, we discern multiple errors that compel us to remand for further collateral review proceedings.
42 Pa.C.S. §§ 9541 -9546.
Because our disposition here involves only procedural defects in the dismissal of Appellant's post-conviction petition, a full recitation of the facts and procedural history for the matter is unnecessary. We glean the following relevant facts from the certified record. After a trial on February 24-25, 2016, a jury found Appellant guilty of carrying firearms without a license, carrying firearms on public streets or public property in Philadelphia, and resisting arrest. The court subsequently found Appellant guilty of a severed charge of possession of a firearm by a prohibited person. On April 29, 2016, the court sentenced Appellant to an aggregate term of 7½ to 24 years of incarceration. After the filing of an untimely post-sentence motion and a timely appeal, this Court affirmed the judgments of sentence, and our Supreme Court denied allocatur . Commonwealth v. Williams , 192 A.3d 275 (Pa. Super. 2018) (table), allocatur denied , 199 A.3d 339 (Pa. 2018) (table).
18 Pa.C.S. §§ 6106(a)(1), 6108, and 5104, respectively. The jury also acquitted Appellant of disarming a law enforcement officer under 18 Pa.C.S. § 5104.1(a)(1).
The parties have not ensured the presence of the trial notes of testimony in the certified record for this appeal. The transcripts of testimony that were electronically filed on February 9, 2021, only include the notes of testimony for a suppression hearing held on July 10, 2015, and a sentencing hearing held on April 29, 2016.
The aggregate term included consecutive prison terms of 4 to 10 years for possession of firearm by a prohibited person, 2 to 7 years for carrying a firearm without a license, 1 to 5 years for carrying firearms on public streets or public property in Philadelphia, and 6 to 24 months for resisting arrest.
On December 3, 2019, Appellant filed a pro se PCRA petition raising five claims of ineffective assistance of counsel. Pro Se PCRA Petition, 12/3/19, at 7(A)-(B). The PCRA court appointed counsel. Defendant thereafter filed a counseled amended PCRA petition, alleging that trial counsel had failed to properly communicate a pre-trial plea offer and failed to argue for lower concurrent prison terms at sentencing. Amended PCRA Petition, 1/24/20, at ¶¶ 3, 6. The Commonwealth filed an answer. As for the plea-communication claim, the Commonwealth argued that Appellant failed to explain the claim or proffer evidence in support of it. Motion to Dismiss, 7/1/20, at 6-8. Notably, the Commonwealth asserted that it did not object to the PCRA court granting Appellant leave of court to amend his petition to "cure the[ ] deficiencies" with that claim. Id. at 8.
On August 19, 2020, Appellant filed a pro se motion requesting the appointment of new counsel. Therein, he alleged that his appointed counsel had not contacted him or answered his correspondence, would only adopt one of his pro se claims, and did not have his "best interests at heart." Pro Se Motion for New Attorney, 8/19/20, at ¶¶ 1-2, 4. Despite these allegations alluding to counsel abandonment, the certified record and the lower court's docket do not reveal any ruling on the motion.
On September 22, 2020, the PCRA court issued notice of its intent to dismiss Appellant's petition pursuant to Pa.R.Crim.P. 907. Appellant did not file a response. The court subsequently dismissed the petition. The court's dismissal order was included on the lower court's docket as filed on November 16, 2020, however, a filing stamp on the order and the order's certificate of service were dated November 19, 2020. Appellant filed a pro se notice of appeal that was docketed on December 17, 2020.
The certificate of service for the dismissal notice, unlike the certificate of service for the court's Rule 907 notice, included an additional reference for the court's mailing of its order to Appellant, in addition to his appointed counsel.
After Appellant failed to file a docketing statement pursuant to Pa.R.A.P. 3517, this Court remanded for a determination as to whether appointed counsel had abandoned Appellant. The PCRA court then appointed present counsel and, without issuing an order for a statement of issues presented pursuant to Pa.R.A.P. 1925(b), filed an opinion.
This Court issued a rule to show cause directing Appellant to show why the appeal should not be quashed as untimely. Appellant filed a response to the rule to show cause, in which he asserted that the trial court's docket erroneously reflected that the dismissal order was filed on November 16, 2020, where the file stamp on the order was dated November 19, 2020, and thus his notice of appeal was timely filed. Response to Rule to Show Cause, 7/1/21, ¶¶ 6-8, 11. On July 8, 2021, this Court discharged the rule to show cause and referred this issue to the merits panel for consideration.
Appellant presents the following issues for our review:
[I.] Did the PCRA Court err and/or abuse its discretion when it denied appellant/defendant's timely first petition under the PCRA without affording him the opportunity to respond to a Rule 907 Notice and/or develop his allegations regarding ineffective assistance of PCRA counsel?
[II.] Did the PCRA Court err and/or abuse its discretion when it denied appellant/defendant's petition under the PCRA seeking relief based upon a claim that trial counsel was ineffective for failing to adequately advise defendant with respect to a negotiated guilty plea offer?
Appellant's Brief at 4 (suggested answers omitted).
When reviewing the denial of a PCRA petition, "[o]ur standard of review ... is limited to examining whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Whitehawk , 146 A.3d 266, 269 (Pa. Super. 2016).
Before we may consider any issues raised by Appellant, we must determine whether we have jurisdiction due to the filing of a timely notice of appeal. The PCRA court order dismissing Appellant's PCRA petition was signed on November 16, 2020, and Appellant purports to appeal from the order entered on that date. See Appellant's Notice of Appeal, 12/17/20; PCRA Ct. Order, 11/19/20. We agree with Appellant, however, that the PCRA court's order contains a file stamp indicating that the order was filed on November 19, 2020, and the certificate of service for that order was dated November 19, 2020. PCRA Ct. Order, 11/19/20. In the absence of any explanation for the different docketing and file stamp dates, we will treat the PCRA court's order as entered on the day that it was file stamped by the court's clerk and served on the parties. Thus, we have amended the caption to this memorandum accordingly, and accept the notice of appeal as timely filed within thirty days of the service of the PCRA court's dismissal order. See Commonwealth v. Gaines , 127 A.3d 15, 18 (Pa. Super. 2015) (en banc ) (where a PCRA court's order was docketed on July 15, 2013, but was not mailed to Gaines until July 17, 2013, the appeal period did not begin until the mail service date), citing Pa.R.A.P. 108(a)(1) ("Except as otherwise prescribed in this rule, any period of time under these rules involving the date of entry of an order by a court ... the day of entry shall be the day the clerk of court ... mails or delivers copies of the order to the parties ..."); see also Commonwealth v. Little , 246 A.3d 312, 322 n.11 (Pa. Super. 2021) (where the PCRA order on review was dated "July 19, 2018" and docketed on July 19, 2019, but the order had a date stamp of August 23, 2019, Little's notice of appeal was considered timely filed on September 15, 2019 "since nothing in the record explained the discrepancy" with the dates concerning the order).
There was no reference to the service of the dismissal order or the clerk's receipt of the order on the lower court's docket. We remind the PCRA court of its obligation under Pa.R.Crim.P. 114(C)(2) to include in the docket entries for its orders "the date of receipt in the clerk's office of the order;" "the date appearing on the order;" and "the date of service of the order." The court's failure to include that information in the docket entry for its dismissal order could have provided a basis for quashal in the event that Appellant had not timely filed a notice of appeal. See Commonwealth v. Carter , 122 A.3d 388, 391 (Pa. Super. 2015) (treating Carter's appeal as timely, despite the fact that a court clerk failed to include a date of service on the docket for an order denying Carter's post-sentence motion, as was required to begin the appeal period, where Carter filed his appeal less than 30 days after the docketing of the order).
In his first issue presented, Appellant asserts that the PCRA court erred by not complying with Pa.R.Crim.P. 907 when it issued notice of its intent to dismiss his post-conviction petition without a hearing. He alleges that the record fails to show that the court timely served him with a copy of its Rule 907 dismissal notice. Appellant's Brief at 42. As a result, he alleges that the court deprived him of "the opportunity to respond to [the court's] Rule 907 Notice and/or develop his allegations regarding ineffective assistance of PCRA counsel." Id. at 29. In support of his claim, he points to the fact that the court's certificate of service for its Rule 907 notice only addressed the court's service of the notice on PCRA counsel and the Commonwealth, and that there was no pro se response filed. Id. at 42.
Within his claim, Appellant also addresses the fact that the PCRA court never "took action with respect to [his] motion seeking new counsel" during collateral review. Appellant's Brief at 43. Appellant reiterates the points made in his former motion for a new attorney and raises additional points about the supposed deficient performance of his PCRA counsel by noting that counsel never appeared to serve him with a copy of the amended PCRA petition, never included a verification from him with the amended petition, and failed to inform him which claims were included in the amended petition. Id. at 41-43.
In response, the Commonwealth does not oppose relief. Significantly, it concedes that, "[b]ased on a review of the record, it appears that PCRA counsel may have abandoned [Appellant] during the PCRA proceedings." Appellee's Brief at 10. It recommends this Court to remand for a determination on prior counsel's alleged abandonment of Appellant during collateral review and to allow Appellant to file a supplemental PCRA petition in the event of a finding of abandonment. Id. at 10. The Commonwealth agrees with Appellant's allegations concerning the lack of service for the court's Rule 907 notice. It agrees that Appellant was not listed as a recipient of the notice on the certificate of service for the notice and additionally points to the fact that the court otherwise listed Appellant as a recipient in the certificate of service for its dismissal order. Id. at 15. Moreover, the Commonwealth directs this Court to the fact that Appellant appended to his pro se notice appeal correspondence from appointed counsel, dated December 2, 2020 (more than two weeks after the dismissal of Appellant's PCRA petition), providing Appellant with an enclosed copy of the PCRA court's Rule 907 dismissal notice and noting, "It should have been previously sent to you by the court." Id. ; Correspondence from Appointed Counsel to Appellant, 12/2/20, Attached to Notice of Appeal, 12/17/20.
We note from the outset that the parties have properly characterized the certified record. The record does not support that the PCRA court ever served its Rule 907 dismissal notice on Appellant. The PCRA court alleges in its opinion that "[t]he dismissal occurred more than twenty days after Petitioner was served with notice of the forthcoming dismissal of his PCRA petition." PCRA Court's Opinion, 5/25/21, at 6 n.1. If that were the case, however, the PCRA court would have included a reference to Appellant in the certificate of service for its Rule 907 notice as it did when it included a reference to him in the certificate of service for its dismissal order. The Court also notes that in one of the docket entries for the dismissal order the PCRA court reported, "Court to send 907 notice." Docket Entry No. 155, 11/16/20.
The record also does not support that the PCRA court ever responded to Appellant's pro se motion for new counsel in which he raised issues of ineffective assistance from PCRA counsel and alluded to abandonment by counsel.
Here, we discern multiple grounds for relief. First, the court's failure to serve Appellant with a copy of the Rule 907 dismissal notice compels further proceedings below. The notice requirements of Rule 907 are mandatory:
If the judge is satisfied from [his or her] review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state the reasons for the dismissal.
Pa.R.Crim.P. 907(1) (emphasis added); see also Commonwealth v. Vo , 235 A.3d 365, 372-373 (Pa. Super. 2020) (defendant who did not receive notice of the PCRA court's intent to dismiss his PCRA petition was entitled to a remand; appreciating that the pre-dismissal notice is to allow a PCRA petitioner to seek leave to amend his petition, correct any material defects, or raise objections to his PCRA counsel's effectiveness). The lower court's non-compliance with Rule 907 requires vacatur of its dismissal order. Vo, supra , at 372. By not serving Appellant with a copy with the Rule 907 notice, the PCRA court deprived Appellant of the opportunity to file a response about his PCRA counsel's representation, correct any of his existing claims, or seek leave of court to file an amended PCRA petition.
Second, the PCRA court erred by not responding to Appellant's pro se motion seeking new counsel. Despite our general prohibition against hybrid representation, this Court has recognized an exception to that ban where a defendant is effectively abandoned by his counsel and the trial court fails to appoint new counsel in a timely manner. See Commonwealth v. Leatherbury , 116 A.3d 73, 79 (Pa. Super. 2015) (Leatherbury's pro se post-sentence motion did not offend considerations of hybrid representation, and thus was not a legal nullity, where Leatherbury had effectively been abandoned by counsel and the trial court had failed to timely appoint new counsel). This exception has been codified in our own internal operating procedures. See 210 Pa. Code § 65.24 (recognizing as among the exceptions to the general ban on hybrid representation motions "by the pro se for appointment of new counsel, for reasons such as abandonment by counsel").
When Appellant filed his motion seeking new counsel in which he informed the PCRA court that his appointed attorney had refused his communications and was not acting in his "best interests," Motion for New Attorney, 8/19/20, ¶¶ 1, 4, the court should have held the hearing on the motion and issued a ruling on it. The certified record fails to show that any action was taken with respect to the motion. This was reversible error. See Commonwealth v. Betts , 240 A.3d 616, 621 (Pa. Super. 2020) ("where an indigent, first-time PCRA petitioner was denied his right to counsel—or failed to properly waive that right—this Court is required to raise this error sua sponte and remand for the PCRA court to correct that mistake.") (citation omitted); see, e.g. , Commonwealth v. Kennedy , 2021 WL 4279775, *3-4 (Pa. Super, filed Sep. 21, 2021) (memorandum opinion) (remanding for the appointment of substitute PCRA counsel to prosecute abeyant claims of PCRA counsel ineffective assistance that Kennedy raised in a timely response to a Rule 907 notice but which the PCRA court never considered).
See Pa.R.A.P. 126(b) (explaining that we may rely on unpublished memorandum from this Court filed after May 1, 2019, for persuasive value).
Moreover, we note that the parties filed their briefs for this appeal prior to our Supreme Court's decision in Commonwealth v. Bradley , 261 A.3d 381 (Pa. 2021). The Bradley Court held "that a PCRA petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se , raise claims of PCRA counsel's ineffectiveness at the first opportunity to do so, even if on appeal." Id. at 401 (footnote omitted). Even assuming arguendo that Appellant had not previously perceived any ineffectiveness on the part of his PCRA counsel – he did and his motion for new counsel raising those claims was ignored – Bradley would still mandate this Court to remand for consideration of his undeveloped PCRA counsel ineffectiveness claims had he raised them for the first time in this appeal, following the appointment of his present counsel during the pendency of this appeal. See Commonwealth v. Washington , 2022 WL 703686, *3 (Pa. Super., filed Mar. 9, 2022) (unpublished memorandum) (remanding for lower court consideration of undeveloped PCRA counsel ineffectiveness claims raised for the first time on appeal); cf. Commonwealth v. Crumbley , ––– A.3d ––––, 2022 WL 221556, *7 (Pa. Super., Jan. 26, 2022) (this Court addressed, based on Bradley , developed claims of PCRA counsel ineffective assistance, where Crumbley raised them on appeal at the first practical opportunity for doing so).
At the time of the dismissal of Appellant's post-conviction petition, a counseled defendant's failure to raise claims of PCRA counsel ineffective assistance in a timely response to the PCRA court's Rule 907 notice would have resulted in waiver based on caselaw developing from two footnotes in Commonwealth v. Pitts , 981 A.2d 875, 879-880 nn. 3-4 (Pa. 2009), that were rejected as "pure dicta" by the Bradley opinion. Bradley , 261 A.3d at 397, 400-401.
Under these circumstances, we conclude the record before us is insufficient to allow for substantive review of Appellant's ineffectiveness claims. Because a finding of counsel abandonment at the PCRA level would have provided Appellant with the opportunity to develop his prior ineffectiveness claims or present new claims with the assistance of his newly-appointed present counsel, the most prudent course of action is to vacate the order denying PCRA relief and remand this case to the PCRA court for a determination on whether prior PCRA counsel had abandoned defendant during collateral review. See Commonwealth v. Koehler , 229 A.3d 915, 937 (Pa. 2020) (explaining appellate review requires "development of a record as warranted and, where a hearing is appropriate, an assessment of the facts by the trial court hearing the evidence"). Upon a finding of prior counsel abandonment on remand, present counsel should be permitted leave to file an amended petition on Appellant's behalf, wherein he can fully develop the remaining claim on appeal or additional issues for review. Thereafter, the court must decide whether to conduct an evidentiary hearing on the claims.
The appointment of present counsel resulted from a finding that prior counsel had abandoned Appellant while on appeal by failing to file a required docketing statement but that finding is distinct from a finding that the same attorney had abandoned Appellant during PCRA review.
Order vacated; case remanded with instructions. Jurisdiction is relinquished.