Opinion
No. 617 CAP
01-10-2013
COMMONWEALTH OF PENNSYLVANIA, Appellee v. ISAAC MITCHELL, Appellant
Motion to Remove Counsel
ORDER
PER CURIAM
AND NOW, this 10th day of January, 2013, upon consideration of the Commonwealth's Motion to Remove Federal Counsel and Appellant's Answer thereto, the matter is REMANDED to the PCRA court to determine whether current counsel, the Federal Community Defender Organization ("FCDO") may represent appellant in this state capital PCRA proceeding, or whether other appropriate post-conviction counsel should be appointed. In this regard, the PCRA court must first determine whether the FCDO used any federal grant monies to support its activities in state court in this case. If the FCDO cannot demonstrate that its actions here were all privately financed, and convincingly attest that this will remain the case going forward, it is to be removed. If the PCRA court determines that the actions were privately financed, it should then determine "after a colloquy on the record, that the defendant has engaged counsel who has entered, or will promptly enter, an appearance for the collateral review proceedings." See Pa.R.Crim.P. 904(H)(1)(c). We note that the order of appointment produced by the FCDO, issued by the U.S. District Court for the Eastern District of Pennsylvania at No. 2:11-cv-02063-MAM, and dated April 15, 2011, appointed the FCDO to represent appellant only for purposes of litigating his civil federal habeas corpus action, and the authority of the FCDO to participate in this state capital proceeding is not clear. See 18 U.S.C. § 3599(a)(2) (authorizing appointment of counsel to indigent state defendants actively pursuing federal habeas corpus relief from death sentence).
Madame Justice Todd files a Dissenting Statement joined by Mr. Justice Baer.