Opinion
1015 MDA 2021 1016 MDA 2021 J-S05003-22
04-05-2022
COMMONWEALTH OF PENNSYLVANIA v. RASHEEK R. BLACKSTONE Appellant COMMONWEALTH OF PENNSYLVANIA v. RASHEEK R. BLACKSTONE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered June 30, 2021 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001725-2006, CP-22-CR-0001726-2006
BEFORE: PANELLA, P.J., STABILE, J., and DUBOW, J.
MEMORANDUM
PANELLA, P.J.
Rasheek R. Blackstone appeals from the orders dismissing his petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we conclude Blackstone was denied the assistance of counsel through his direct appeal. Therefore, we vacate the PCRA court's order and remand for proceedings consistent with this memorandum.
On October 13, 2006, a jury convicted Blackstone, at two separate dockets, of two counts of recklessly endangering another person and one count each of aggravated assault, firearms not to be carried without a license and the unlawful discharge of a firearm within the city limits of Harrisburg.The trial court sentenced Blackstone to an aggregate term of 7 to 20 years in prison, with credit for time served, followed by 5 years' probation. Blackstone did not file post-sentence motions or a direct appeal.
18 Pa.C.S.A. §§ 2705, 2702(a)(1), 6106(a)(1); City of Harrisburg Local Ordinance § 3-345.2.
On December 7, 2015, Blackstone filed a pro se motion claiming he had filed a PCRA petition in 2008, which the court had never issued a ruling on. The PCRA court denied the motion, stating that the docket did not reflect that a petition had been filed in 2008. However, because Blackstone attached to his motion a copy of the "missing" PCRA petition, which included a date-stamp from the clerk of courts, this Court vacated the PCRA court's order and remanded for an evidentiary hearing to determine whether a breakdown in court operations had occurred and whether Blackstone had exercised due diligence in ascertaining the status of his petition. See Commonwealth v. Blackstone, 170 A.3d 1185, 995 MDA 2016 (Pa. Super. filed May 2, 2017) (judgment order).
On remand, the PCRA court appointed Attorney Bryan DePowell to represent Blackstone through the completion of a direct appeal, and reinstated Blackstone's direct appeal rights, nunc pro tunc. Blackstone, through counsel, filed a post-sentence motion challenging the discretionary aspects of his sentence, which the trial court denied. This Court affirmed Blackstone's judgment of sentence. See Commonwealth v. Blackstone, 217 A.3d 394, 307 MDA 2018 (Pa. Super. filed May 13, 2019) (unpublished memorandum).
On September 3, 2019, Attorney DePowell filed a motion to reinstate Blackstone's right to file a petition for allowance of appeal with our Supreme Court, nunc pro tunc, citing his failure to inform Blackstone of this Court's decision. Attorney DePowell also filed a petition to withdraw as counsel, as he had relocated to another state. The PCRA court reinstated Blackstone's right to file a petition for allowance of appeal with our Supreme Court and permitted counsel to withdraw. From the docket, it does not appear that the PCRA court appointed Blackstone new counsel, or that any further action was taken.
Because the PCRA provides "the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies[, ]" 42 Pa.C.S.A. § 9542, the motion to reinstate is considered a PCRA petition.
Blackstone filed the instant pro se PCRA petition on April 9, 2020, alleging that counsel was ineffective for failing to file a post-sentence motion challenging the weight of the evidence, even after his direct appeal rights were reinstated nunc pro tunc. Blackstone also argued that the trial court imposed an excessive sentence. The PCRA court appointed Attorney Damian J. DeStefano as PCRA counsel, who filed a memorandum concerning Blackstone's PCRA petition, as well as a petition to reinstate Blackstone's direct appeal rights due to prior counsel's ineffectiveness.
An identical pro se PCRA petition was docketed on April 23, 2020.
In the memorandum and petition, Attorney DeStefano laid out a claim that Blackstone had been deprived of effective assistance of counsel during post-sentence proceedings. From our review, the factual basis of the claim is not entirely clear. In some places, the memorandum and petition refer to post-sentence proceedings in 2006. In others, it asserts that Blackstone filed a pro se post-sentence motion and a pro se notice of appeal after his direct appeal rights were reinstated in 2017.
We find no support in the certified record before us for the proposition that Blackstone filed the December 18, 2017 post-sentence motion or the February 3, 2018 notice of appeal pro se. The docket entries identify Attorney DePowell, and the actual documents are not in the certified record. Given our resolution of this appeal, however, we need not reach this issue.
On June 10, 2021, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss Blackstone's petition without an evidentiary hearing, stating there were no genuine issues of material fact. Blackstone, through counsel, filed objections asserting the PCRA court had failed to serve him with its Rule 907 notice. Blackstone also argued the trial court failed to address whether Blackstone had the benefit of counsel following reinstatement of his appeal rights. The PCRA court dismissed Blackstone's PCRA petition on June 30, 2021. Blackstone filed timely notices of appeal at both docket numbers. The PCRA court did not direct Blackstone to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Our review of the docket confirms the Rule 907 notice was served on Attorney DeStefano, Blackstone's counsel of record, and Attorney DeStefano filed objections five days later. Further, we note that Blackstone additionally filed pro se objections to the Rule 907 notice, which the PCRA court forwarded to counsel in accordance with Pa.R.Crim.P. 576(A)(4). See Commonwealth v. Williams, 241 A.3d 353, 354 n.1 (Pa. Super. 2020) (explaining that this Commonwealth does not permit hybrid representation).
This Court, sua sponte, consolidated Blackstone's appeals for review.
As a preliminary matter, we will review the PCRA court's apparent failure to appoint counsel to file a nunc pro tunc petition for allowance of appeal in our Supreme Court. We recognize that Blackstone did not specifically raise this issue in his counseled petition or in his brief on appeal. Instead, Blackstone raised a more general claim that he did not have the assistance of counsel through post-sentence motion and direct appeal proceedings. See Appellant's Brief at 12-14. However, since we conclude Blackstone had a rule-based right to counsel, we may raise any violation of the right sua sponte. See generally Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011) (holding that "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").
Blackstone's entitlement to appointed counsel was "effective until final judgment, including any proceedings upon direct appeal." Pa.R.Crim.P. 122(B)(2) (emphasis added). As such, absent an Anders brief or some other explicit finding that terminated Blackstone's right to appointed counsel, Blackstone was entitled to appointed counsel to prepare a petition for allowance of appeal on direct appeal. See Commonwealth v. Liebel, 825 A.2d 630, 633 (Pa. 2003) (applying the same language in a prior version of Rule 122); Commonwealth v. Gadsden, 832 A.2d 1082, 1086 (Pa. Super. 2003); see also Pa.R.Crim.P. 122, Comment. In order for Blackstone to have waived this right, the PCRA court was required to have queried Blackstone to establish the waiver was knowing, voluntary, and intelligent. See Pa.R.Crim.P. 121(A)(2) and (C).
Anders v. California, 386 U.S. 738 (1967).
The record reflects that on September 3, 2019, Attorney DePowell filed an unopposed petition to reinstate Blackstone's right to file a petition for allowance of appeal with the Supreme Court, nunc pro tunc. Attorney DePowell admitted he had never provided Blackstone with a copy of this Court's decision and did not file a petition for allowance of appeal on his behalf. Attorney DePowell additionally filed a petition to withdraw as counsel, based on his relocation to another state.
Attorney DePowell did not aver that his review revealed no meritorious issues for appeal. Cf. Commonwealth v. Alberta, 973 A.2d 1158, 1159 (Pa. 2009) (holding that "[a]ppointed counsel who has complied with Anders and is permitted to withdraw discharges the direct appeal obligations of counsel. Once counsel is granted leave to withdraw per Anders, a necessary consequence of that decision is that the right to appointed counsel is at an end"). In fact, Attorney Powell's petition requested that the court "appoint new conflict counsel as appropriate to assist [Blackstone] in submitting his petition for allowance of appeal to the Pennsylvania Supreme Court." See Petition to Withdraw as Counsel, 9/3/19, at 3 (unnecessary capitalization omitted).
On September 5, 2019, the PCRA court entered an order granting Blackstone's petition to reinstate and directing Blackstone to file a petition for allowance of appeal in the Supreme Court by October 6, 2019. The following day, the court entered an order granting Attorney DePowell's petition to withdraw as counsel. Neither order directed the appointment of new counsel, and the docket reflects no further filings until Blackstone filed the instant pro se PCRA petition.
We therefore conclude that Blackstone was effectively denied his rule-based right to representation of counsel through the conclusion of his direct appeal. See Pa.R.Crim.P. 122(B)(2). Accordingly, we vacate the PCRA court's order dismissing Blackstone's petition, and we remand for the appointment of counsel, who shall file a petition for allowance of appeal within 60 days of appointment. See generally Commonwealth v. Wright, 108 A.3d 31, 31-32 (Pa. 2015) (in response to appellant's petition for leave to file a petition for allowance of appeal nunc pro tunc, remanding to the court of common pleas for appointment of new counsel and the filing of a petition for allowance of appeal).
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.