Opinion
J-S01007-13 No. 199 EDA 2012
01-14-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. FERNANDO NUNEZ, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered on December 2, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0402401-2004
BEFORE: BENDER, J., LAZARUS, J., and COLVILLE, J. MEMORANDUM BY BENDER, J.
Retired Senior Judge assigned to the Superior Court.
Appellant, Fernando Nunez, appeals pro se from the order denying his petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 et seq. Appellant contends the trial court erred by accepting PCRA counsel's no-merit letter and because it never formally granted PCRA counsel leave to withdraw. Appellant also claims he is entitled to a new sentencing hearing pursuant to the United States Supreme Court's ruling in Miller v. Alabama, 132 S.Ct. 2455 (2012). After careful review, we affirm.
A jury convicted Appellant of first degree murder, criminal conspiracy, and possessing an instrument of crime (PIC), for the contract killing of Christopher Jastrzebski on May 13, 2001, when Appellant was 17 years old. Appellant's first trial ended in a mistrial. Appellant represented himself pro se at his retrial with the assistance of stand-by counsel. After the jury returned a guilty verdict, the retrial court sentenced Appellant to life imprisonment for the murder conviction, and concurrent terms of 5 - 10 years' and 2 ½ 5 years' incarceration for criminal conspiracy and PIC. It is unclear whether Appellant filed a direct appeal from his sentence. However, his direct appellate rights were reinstated nunc pro tunc on March 2, 2007.
Appellant's subsequent, nunc pro tunc direct appeal averred, inter alia, that the trial court erred by interviewing a juror outside Appellant's presence. On December 23, 2008, this Court affirmed Appellant's judgment of sentence and, on July 27, 2009, our Supreme Court denied his petition for allowance of appeal. Commonwealth v. Nunez, 965 A.2d 299 (Pa. Super. 2008) (unpublished memorandum), appeal denied, 981 A.2d 218 (Pa. 2009).
Appellant also claimed that the trial court had erred by permitting testimony in violation of Crawford v. Washington, 541 U.S. 36 (2004), and that he had been forced to act pro se at trial due to appointed counsel's inadequate preparation.
Appellant subsequently filed a timely, pro se PCRA petition on February 12, 2010. In that petition, Appellant raised three claims alleging the ineffective assistance of appellate counsel. The PCRA court appointed counsel, Barbara A. McDermott, Esq., who then filed 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), asserting that Appellant's ineffectiveness claims were frivolous. PCRA counsel also filed a motion seeking permission to withdraw. Consequently, on October 21, 2011, the PCRA court issued a notice of intent to dismiss Appellant's petition pursuant to Pa.R.Crim.P. 907, premised upon PCRA counsel's Turner/Finley letter.
Appellant did not file an answer to the Rule 907 notice. However, on November 14, 2011, Appellant filed an untimely "Emergency Motion Requesting Extension of Time to File Objections to Intent to Dismiss or Leave to Amend." The motion was dated November 8, 2011. In that motion, Appellant indicated that his legal papers had been confiscated by prison authorities and that, in any event, he could only access the prison's law library for two hours per day, for no more than three days per week. As such, Appellant contended that he could not file a meaningful response to PCRA counsel's Turner/Finley letter and the PCRA court's Rule 907 notice. Thus, Appellant requested an extension of time of 45 days to file objections to the Rule 907 notice.
If mailed the same day, the prisoner mailbox rule would have rendered the motion timely. However, there is no indication in the record as to the date the motion was postmarked. In any event, Appellant does not claim in this appeal that the PCRA court should have granted the motion and given him additional time to answer the Rule 907 notice.
The record is silent as to whether the PCRA court denied Appellant's emergency motion. The docket indicates that the PCRA court conducted a hearing on November 18, 2011, at which time Appellant's PCRA counsel and an attorney for the Commonwealth were present. The docket notes that the hearing was in consideration of a "Motion for Continuance [-] Defense Request." However, the docket entry does not state whether the motion considered by the court was Appellant's emergency motion. Nevertheless, the docket does not reflect that any other motions had been filed within the relevant time-frame. The transcript of that hearing has not been provided to this Court in the certified record. The docket states that the matter was "continued for review of defendant's objections." Docket Entry of 11/18/11, CP-51-CR-0402401-2004.
On December 2, 2011, the PCRA Court dismissed Appellant's petition. The order read, in pertinent part, as follows:
AND NOW, this 2nd day of December 2011, it is ORDERED and DECREED that following a review of the pleadings, the submissions of counsel, appellant's response to the Notice of Intent to Dismiss, the record and the controlling law, the petitioner's petition for post conviction relief ... is hereby DISMISSED/DENIED.Order, 12/2/11, at CP-51-CR-0402401-2004.
The order does not indicate whether PCRA counsel had been permitted to withdraw. However, the docket entry for the December 2 order states that "[d]efense counsel is permitted to withdraw." Appellant then filed a timely, pro se notice of appeal. The PCRA court did not order Appellant to file a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On March 14, 2012, the court filed its opinion pursuant to Rule 1925(a).
Appellant now presents the following questions for our review:
I. Whether the PCRA court committed an error of law when formally dismissing [Appellant]'s first PCRA petition in absence of conducting its own independent review under Turner?Appellant's pro se brief, at 5.
II. Should this appeal be deemed effectively uncounseled because the PCRA court never entered a formal order granting PCRA counsel's application to withdraw?
III. Does the Cruel and Unusual Punishment Clause of the Eighth Amendment declare[] [Appellant]'s sentence of life imprisonment without the possibility of parole for a juvenile homicide offender illegal in light of Miller v. Alabama?
We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary.Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012) (internal citations omitted, emphasis added) (quoting Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012)).
Appellant's first claim posits that the PCRA court erred by accepting PCRA counsel's Turner/Finley letter. Appellant contends that the PCRA court failed to conduct its own independent review of the record and that the Rule 907 notice was defective for failing to state the reasons for dismissal. Furthermore, he asserts that his claim concerning direct appellate counsel's ineffectiveness was not frivolous, but simply misunderstood and consequently misrepresented by PCRA counsel in the Turner/Finley letter as having been previously litigated. Essentially, Appellant believes that if the PCRA court had conducted an independent review of the record, it would have necessarily determined that his issue had not been previously litigated.
First, we disagree that the PCRA court's Rule 907 notice was defective. Rule 907 provides, in relevant part, the following:
Except as provided in Rule 909 for death penalty cases,Pa.R.Crim.P. 907(1) (emphasis added).
(1) the judge shall promptly review the petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant's claim(s). If the judge is satisfied from this 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 in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice. The judge thereafter shall order the petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue.
The notice clearly stated that the PCRA court intended to dismiss Appellant's pro se PCRA petition based upon PCRA counsel's filing of a no-merit letter. The no-merit letter was attached to the Rule 907 order. This is sufficient notice of the reason for dismissal for purposes of Rule 907. See Commonwealth v. Ousley, 21 A.3d 1238 (Pa. Super. 2011) (rejecting the appellant's claim that the PCRA court's citation to PCRA counsel's no-merit letter failed to state the reason for dismissal as required by Rule 907).
Next, Appellant claims that the PCRA court failed to conduct an independent review of the record when it accepted PCRA counsel's no-merit letter and dismissed his pro se PCRA petition. However, this claim is belied by the record. In the dismissal order, the PCRA court clearly stated that the petition was dismissed "following a review of the pleadings, the submissions of counsel, [A]ppellant's response to the Notice of Intent to Dismiss, [and] the record and the controlling law [.]" Order, 12/2/11, at CP-51-CR-0402401-2004 (emphasis added). Accordingly, this claim is meritless.
Appellant also contends that the PCRA court erred by accepting PCRA counsel's no-merit letter. The following standards are applied when PCRA counsel seeks to withdraw pursuant to a Turner/Finley letter.
1) As part of an application to withdraw as counsel, PCRA counsel must attach to the application a "no-merit" letter,Commonwealth v. Friend, 896 A.2d 607, 615 (Pa. Super. 2006) (footnote omitted), abrogated on different grounds by Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009).
2) PCRA counsel must, in the "no-merit" letter, list each claim the petitioner wishes to have reviewed, and detail the nature and extent of counsel's review of the merits of each of those claims,
3) PCRA counsel must set forth in the "no-merit" letter an explanation of why the petitioner's issues are meritless,
4) PCRA counsel must contemporaneously forward to the petitioner a copy of the application to withdraw, which must include (i) a copy of both the "no-merit" letter, and (ii) a statement advising the PCRA petitioner that, in the event the trial court grants the application of counsel to withdraw, the petitioner has the right to proceed pro se, or with the assistance of privately retained counsel;
5) the court must conduct its own independent review of the record in the light of the PCRA petition and the issues set forth therein, as well as of the contents of the petition of PCRA counsel to withdraw; and
6) the court must agree with counsel that the petition is meritless.
Appellant complains that the PCRA court erred by accepting PCRA counsel's Turner/Finley letter because PCRA counsel erroneously concluded that one of Appellant's ineffective assistance of counsel claims had been previously litigated. Accordingly, Appellant believes the no-merit letter was defective and should have been rejected by the PCRA court. We disagree.
To be eligible for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his or her conviction or sentence resulted from one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances include a violation of the Pennsylvania or United States Constitution and ineffective assistance of counsel which "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(i), (ii). Furthermore, a petitioner must establish that the claims of error raised in the PCRA petition have not been previously litigated or waived, and that "theCommonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011).
failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel." 42 Pa.C.S. § 9543(a)(3) and (4); [ Commonwealth v.] Washington, [927 A.2d 586, 593 (Pa. 2007)]. An issue has been waived "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post[-]conviction proceeding." 42 Pa.C.S. § 9544(b). An issue has been previously litigated if "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue." 42 Pa.C.S. § 9544(a)(2).
In Appellant's pro se PCRA petition, he alleged, inter alia, that:
Appellate counsel, J. Scott O'Keefe, was ineffective for failing to preserve, present, and argue the trial court's federal constitutional error, in allowing standby counsel, James Bruno, to question a juror outside my presence, without my consent, undermining my right to self-representation in violation of my Sixth Amendment right.Appellant's pro se PCRA petition, 2/12/10, at 3.
Appellant asserts the above issue was not previously litigated in his nunc pro tunc direct appeal because it was couched in terms of the ineffectiveness of counsel in his pro se PCRA petition, whereas in his nunc pro tunc direct appeal he had asserted that his Sixth Amendment right to self-representation had been violated when the trial court permitted standby counsel to question a juror outside his presence. Appellant is correct that his ineffectiveness issue has not been previously litigated. As our Supreme Court explained in Commonwealth v. Collins, 888 A.2d 564 (Pa. 2005), "ineffectiveness claims are distinct from those claims that are raised on direct appeal. The former claims challenge the adequacy of representation rather than the conviction of the defendant." Id. at 573. Appellant did not raise any ineffectiveness claims on direct appeal. Accordingly, he had no previously litigated ineffectiveness claims barred by application of 42 Pa.C.S. § 9543(a)(3).
However, that is not the end of our inquiry. "This Court may affirm a PCRA court's decision on any grounds if the record supports it." Rykard, 55 A.3d at 1183. Despite the fact that Appellant's ineffectiveness claim had not been previously litigated, it is still frivolous. In order to obtain relief on a claim of the ineffective assistance of counsel, a petition must establish:
(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) petitioner suffered prejudice as a result of counsel's error such that there is a reasonable probability that the result of the proceeding would have been different absent such error.Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2009).
Here, to establish prejudice, Appellant must demonstrate that there was a reasonable probability that the Superior Court would have reached a different conclusion on direct appeal, regarding Appellant's Sixth Amendment self-representation claim, had appellate counsel not ineffectively argued it. However, Appellant cannot possibly demonstrate that such ineffectiveness deprived the Superior Court of the ability to address the issue on its merits. Our review of the memorandum disposing of Appellant's direct appeal demonstrates that the Superior Court addressed Appellant's self-representation claim and, furthermore, that the Court addressed it because it was raised in the brief filed by direct appellate counsel.
Appellant asserts that he "advised PCRA counsel that appellate counsel advanced the trial court error ineffectively on direct appeal - confining the error as a violation of [Appellant's] right to [be] present - as opposed to - [a] violation that undermined [Appellant's] right to representation." Appellant's pro se brief, at 12. The Superior Court determined that a constitutional violation had occurred, but denied relief to Appellant by concluding that the error was harmless. Appellant believes direct appeal counsel's ineffectiveness permitted the Superior Court to apply a harmless error analysis to the issue of Appellant's 'right to be present,' whereas he claims prejudice would have been presumed had the issue been addressed as a 'right to representation' claim. We disagree.
The Superior Court clearly understood Appellant's claim on direct appeal to implicate both his 'right to be present' as a defendant during critical stages of his criminal trial, and his 'right to self-representation.' First, the Superior Court cited to relevant authorities implicating both rights. See Commonwealth v. Nunez, 903 EDA 2007, unpublished memorandum at 7 - 9 (Pa. Super. filed December 23, 2008). Second, the Superior Court relied upon Commonwealth v. Bradley, 459 A.2d 733 (Pa. 1983), in concluding that it could apply a harmless error analysis to Appellant's claim. In Bradley, our Supreme Court held that it was not per se prejudice for a judge to communicate with a jury ex parte. In doing so, the Supreme Court reconciled diverging standards that were being applied in civil and criminal cases at the time Bradley was decided. As the Court explained,
The reason for prohibiting a trial judge from communicating with a jury ex parte is to prevent the court from unduly influencing the jury and to afford counsel an opportunity to become aware and to seek to correct any error which might occur. Where there is no showing either that the court's action may have influenced the jury or that its directions were erroneous, then the reason for the rule dissolves.Bradley, 459 A.2d at 739 (original emphasis removed, new emphasis added, quotation marks and citations omitted). As is clear from the above passage, the Bradley decision did not base its rationale on the question of whether the defendant was deprived of his right to be present during the ex parte communication with the jury. Instead, the issue at stake concerned whether a defendant had been deprived of the right to have counsel present during such communications, and whether that constituted per se prejudice (thus preventing the application of a harmless error analysis).
Third, the Superior Court explicitly rejected Appellant's assertion on direct appeal that it should utilize the per se prejudice rule applied in Commonwealth v. Johnson, 828 A.2d 1009 (Pa. 2003). In Johnson, the "appellant argued his absence during the jury instructions violated his constitutional right to be present at all stages of the proceedings and to be represented by counsel." Id. at 1011 (emphasis added). The Johnson Court refused to apply the Bradley standard because the Johnson "matter involves a complete, if temporary, denial of counsel by the trial court during reiterative jury instructions, a critical stage of [the] appellant's trial. Accordingly, this Court is required to presume [the] appellant was prejudiced." Id. at 1015. The holding in Johnson clearly implicated a defendant's right to counsel. In Appellant's direct appeal, the Superior Court stated that it considered the applicability of Johnson at Appellant's request, that is to say, because it was raised by Appellant's direct appellate counsel in his brief. Commonwealth v. Nunez, 903 EDA 2007, unpublished memorandum at 13 (Pa. Super. filed December 23, 2008).
Appellant's PCRA claim that direct appeal counsel was ineffective for failing to raise the juror issue as a "violation that undermined [Appellant's] right to self-representation" is, thus, frivolous. The distinction was clearly addressed by the Superior Court in the memorandum disposing of Appellant's nunc pro tunc direct appeal. Nevertheless, the Court concluded that harmless error analysis was appropriate in this case. Thus, we agree with Appellant that the reason given by PCRA counsel in the no-merit letter, regarding why the self-representation claim was frivolous, was erroneous. Nevertheless, the claim is still frivolous because his direct appeal counsel did not fail to preserve, present, and argue the claim as one implicating Appellant's right to counsel/self-representation. Accordingly, Appellant's claim that the PCRA court erred by accepting PCRA counsel's no-merit letter is meritless.
Appellant next claims that the PCRA court never 'formally' permitted PCRA counsel leave to withdraw. However, the docket reflects that PCRA counsel was permitted to withdraw at the same time Appellant's pro se PCRA petition was dismissed, on December 2, 2011. The Pa.R.A.P. 1925(a) opinion filed by the PCRA court also indicates that PCRA counsel was permitted to withdraw at that time. PCRA Court Opinion, 3/12/12, at 3. Nevertheless, Appellant asserts there is no order granting counsel's motion to withdraw in the record. Furthermore, the dismissal order itself does not state that counsel was permitted to withdraw. However, given that the docket reflects that PCRA counsel was permitted to withdraw, and the fact that the PCRA court clearly indicated its intent was to permit PCRA counsel to withdraw, we conclude that Appellant's argument is one of form over substance and, therefore, it lacks merit.
Finally, Appellant asserts that he is entitled to a new sentencing hearing in light of Miller. In Miller, the Supreme Court of the United States held that mandatory sentences of life without parole imposed on juvenile offenders violate the Eight Amendment. Appellant claims his sentence is illegal in light of Miller.
The Commonwealth argues Appellant waived this claim by failing to raise it in his pro se PCRA petition, or in response to the Rule 907 dismissal notice. We disagree. Appellant could not have raised this claim in his pro se PCRA petition, as Miller was not decided until June 25, 2012, and Appellant's petition was filed on February 12, 2010. Indeed, Miller was decided after the PCRA court dismissed his petition on December 2, 2011. Appellant cannot be faulted for failing to raise this claim in these circumstances. Nevertheless, we are constrained to conclude that Appellant is not entitled to relief at this time.
In Commonwealth v. Cunningham, 38 EAP 2012, 2013 WL 5814388 (Pa. Oct. 30, 2013), our Supreme Court addressed whether the new rule established in Miller should be retroactively applied pursuant to one of two exceptions to the general rule of non-retroactivity established in Teague v. Lane, 489 U.S. 288 (1989) (plurality). The Cunningham Court only considered whether the Miller rule fit the first Teague exception, which applies to rules prohibiting a certain category of punishment for a class of defendants because of their status or offense. The Cunningham Court did not reach the question of whether the Miller rule fit within the second Teague exception, which applies to watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding, because Cunningham failed to develop any argument to that effect. Thus, whether the Miller rule is a watershed procedural rule requiring retroactive application pursuant to Teague remains an open question. Furthermore, as discussed by Chief Justice Castille in his Concurring Opinion, and briefly noted by the Cunningham Majority itself, the failure to establish retroactive application under one of the two Teague exceptions does not limit the ability of state courts to provide a remedy under state law.
In his brief, Appellant does not offer any argument as to why Miller should be held to apply retroactively. In light of Cunningham, we must conclude that Appellant is not entitled to relief for failure to adequately develop his claim.
Order Affirmed.
Judge Colville concurs in the result. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary
*This decision was reached prior to the retirement of Judge Colville.