Opinion
J-S17001-16 No. 1731 WDA 2014
04-01-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. CURTIS ROSS JOHNSON, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order May 27, 1997
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0001636-1994 BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J. MEMORANDUM BY GANTMAN, P.J.:
Former Justice specially assigned to the Superior Court.
Appellant, Curtis Ross Johnson, Jr., appeals nunc pro tunc from the order entered in the Washington County Court of Common Pleas, which denied and dismissed his first petition filed pursuant to the Post Conviction relief Act ("PCRA") at 42 Pa.C.S.A. §§ 9541-9546. We vacate, remand for further proceedings, and deny counsel's petition to withdraw.
The PCRA court opinion adequately sets forth the relevant facts and procedural history of this case. Therefore, we will only briefly summarize them. On August 22, 1993, when he was twenty years old, Appellant and two co-defendants committed a home invasion, and then robbed and murdered the victims (husband and wife) in their home. Appellant pled guilty on November 1, 1995, to two counts each of first-degree murder, aggravated assault, and robbery, and one count each of burglary, theft by unlawful taking or disposition, receiving stolen property, and criminal conspiracy. On January 5, 1996, the court sentenced Appellant to life imprisonment without the possibility of parole on each murder offense, to be served concurrently, with no further penalties on the remaining offenses. Appellant filed a direct appeal, which was dismissed on March 15, 1996, as untimely.
Appellant timely filed his first PCRA petition pro se on January 28, 1997. The PCRA court did not appoint counsel. Instead, by order filed April 24, 1997, the court issued notice of its intent to dismiss without a hearing pursuant to Pa.R.Crim.P. 1507, because the issues raised were "patently frivolous" and without record support. On May 13, 1997, the PCRA court denied Appellant's petition for those reasons. The court reissued an amended order on May 27, 1997, due to a mailing error. Appellant timely filed a pro se notice of appeal on June 23, 1997, which was returned as defective on July 8, 1997. Appellant took no further action regarding that appeal, which remained viable, as no party had moved to discontinue it.
In 1997, notice of intent to dismiss a PCRA petition without a hearing was governed by Pa.R.Crim.P. 1507, which, at the time, gave Appellant ten days to respond to the notice. The rules of criminal procedure were renumbered as of April 1, 2001, and the content of Rule 1507 is currently found under Pa.R.Crim.P. 907, which now gives the defendant twenty days to respond to the notice.
Appellant filed a second PCRA petition pro se on August 28, 2012. This time the court appointed counsel and, due to a conflict, the court appointed substituted counsel, who filed an amended petition on October 29, 2013. The PCRA court ultimately dismissed the second petition on October 2, 2014, in favor of reinstating Appellant's 1997 appeal from the order denying his first PCRA petition. On October 22, 2014, counsel filed a notice to reinstate the appeal from the denial of Appellant's first PCRA petition. On December 1, 2014, the court ordered counsel to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Counsel timely complied on December 19, 2014, on Appellant's behalf.
As a preliminary matter, counsel has filed a petition to withdraw. "Before an attorney can be permitted to withdraw from representing a petitioner under the PCRA, Pennsylvania law requires counsel to file and obtain approval of a 'no-merit' letter pursuant to the mandates of Turner / Finley ." Commonwealth v . Karanicolas , 836 A.2d 940, 947 (Pa.Super. 2003) (emphasis in original).
In the context of a PCRA petition and request to withdraw, the appropriate filing is a "no-merit" letter/brief. Commonwealth v. Turner , 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley , 550 A.2d 213 (1988).
[C]ounsel must...submit a "no-merit" letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel's diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.Commonwealth v. Wrecks , 931 A.2d 717, 721 (Pa.Super. 2007). Counsel must also send to the petitioner a copy of the "no-merit" letter or brief plus the motion to withdraw and advise the petitioner of his right to proceed pro se or with new counsel. Id. "Substantial compliance with these requirements will satisfy the criteria." Karanicolas , supra.
Instantly, counsel filed a Turner/Finley brief on appeal and a motion to withdraw as counsel. Counsel listed certain issues Appellant wished to raise on appeal and thoroughly explains why they merit no relief. Counsel sent Appellant a copy of the brief filed on appeal, a copy of counsel's petition to withdraw, and a statement advising Appellant of his right to proceed pro se or with private counsel. Thus, counsel appears to have complied with the basic Turner/Finley requirements. See Karanicolas , supra. Nevertheless, we proceed with an independent review of the case. See Turner , supra (stating court must conduct independent review and agree with counsel that petition is meritless or appeal is frivolous).
As an equally important prefatory matter, an indigent petitioner is entitled to representation by counsel for a first PCRA petition. Commonwealth v. Smith , 572 Pa. 572, 818 A.2d 494 (2003); Commonwealth v. White , 871 A.2d 1291 (Pa.Super. 2005); Commonwealth v. Evans , 866 A.2d 442, 445 (Pa.Super. 2005). Pennsylvania Rule of Criminal Procedure 904 in relevant part states:
Rule 904. Entry of Appearance and Appointment of Counsel; In Forma Pauperis
* * *
(C) Except as provided in paragraph (H) [relating to death penalty cases], when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant's first petition for post-conviction collateral relief.Pa.R.Crim.P. 904(C)-(G).
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(E) The judge shall appoint counsel to represent a defendant whenever the interests of justice require it.
(F) When counsel is appointed,
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(2) the appointment of counsel shall be effective throughout the post-conviction collateral proceedings, including any appeal from disposition of the petition for post-conviction collateral relief.
(G) When a defendant satisfies the judge that the defendant is unable to pay the costs of the post-conviction collateral proceedings, the judge shall order that the defendant be permitted to proceed in forma pauperis ["IFP"].
While a PCRA petitioner does not have a Sixth Amendment right to assistance of counsel during collateral review, this Commonwealth, by way of procedural rule, provides for the appointment of counsel during a prisoner's first petition for post conviction relief. Pursuant to our procedural rules, not only does a PCRA petitioner have the "right" to counsel, but also he...has the "right" to effective assistance of counsel. The guidance and representation of an attorney during collateral review should assure that
meritorious legal issues are recognized and addressed, and that meritless claims are foregone.Commonwealth v. Haag , 570 Pa. 289, 307-08, 809 A.2d 271, 282-83 (2002), cert. denied, 539 U.S. 918, 123 S.Ct. 2277, 156 L.Ed.2d 136 (2003) (internal citations and most quotations marks omitted). This rule-based right to counsel and to effective assistance of counsel extends throughout the post-conviction proceedings, including any appeal from the disposition of the PCRA petition. White , supra. Further, the right remains intact even if the petition is untimely on its face. Smith , supra; Commonwealth v. Stout , 978 A.2d 984, 988 (Pa.Super. 2009).
Previously known as Pa.R.Crim.P. 1504.
Importantly, the relevant rules of criminal procedure do not require the petitioner to request appointment of counsel in the PCRA context. Commonwealth v. Guthrie , 749 A.2d 502 (Pa.Super. 2000). "The issue of whether the petitioner is entitled to [PCRA] relief is another matter entirely, which is to be determined after the appointment of counsel and the opportunity to file an amended petition." Evans , supra. Where a petitioner's right to representation has been effectively denied by the action of court or counsel, the petitioner is entitled to have his case remanded to the PCRA court for appointment of counsel to assist with the PCRA petition. Commonwealth v. Perez , 799 A.2d 848 (Pa.Super. 2002).
Instantly, the court sentenced Appellant on January 6, 1996. Appellant timely filed his first PCRA petition on January 28, 1997, but the PCRA court did not appoint counsel. Instead, by order filed April 24, 1997, the court issued notice of its intent to dismiss the petition without a hearing, because the issues raised were "patently frivolous" and without record support. On May 13, 1997, the PCRA court denied Appellant's petition for those reasons. The court reissued an amended order on May 27, 1997, due to a mailing error. In short, the PCRA court denied Appellant's first petition without ever appointing counsel to assist Appellant with the presentation of his claims. Because this petition represented Appellant's first collateral attack on the judgment of sentence, the court should have instead confirmed Appellant's IFP status, his right to counsel, and appointed counsel. See Haag , supra ; White , supra. Here, the court effectively denied Appellant his rule-based right to counsel on his first PCRA petition. See Perez , supra. This oversight was articulated throughout the counseled second PCRA proceedings. When the PCRA court ultimately dismissed the second petition in favor of reinstating Appellant's 1997 appeal from the order denying his first PCRA petition, counsel filed an amended notice of appeal from the denial of Appellant's first PCRA petition. In counsel's timely filed, court-ordered Rule 1925(b) statement and on appeal, however, counsel raised several ineffective assistance of trial counsel claims on Appellant's behalf. Further, counsel now seeks to withdraw and argues Appellant's appeal is frivolous. Based upon our independent review of the record, we cannot agree with counsel's assessment of the appeal. See Turner , supra. Here, counsel neglected to raise the patently significant claim that Appellant was entitled to and was denied assistance of counsel for his first PCRA petition. Essentially, counsel defaulted a major viable issue for Appellant, which is apparent on the face of the record.
Therefore, we conclude that the best resolution of this matter is to vacate the order dismissing Appellant's first PCRA petition and remand the case for further proceedings. See Perez , supra. We do so without reference to the merits of the issues raised in this appeal. See Evans , supra. We intend to place Appellant in the same position he occupied when he initially filed his pro se PCRA petition in 1997. Upon remand, the court shall relieve current counsel and appoint new counsel, who must consult with Appellant and file an amended first PCRA petition or a proper "no-merit" letter that addresses Appellant's claims. Accordingly, we vacate the May 27, 1997 order denying and dismissing Appellant's first PCRA petition and remand for further proceedings consistent with this decision.
Order vacated; case remanded for further proceedings; counsel's petition to withdraw is denied. Jurisdiction is relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/01/16
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