Opinion
562 WDA 2023 J-A16014-24
10-15-2024
COMMONWEALTH OF PENNSYLVANIA v. FREDERICK WALTER II Appellant
Appeal from the PCRA Order Entered April 20, 2023 In the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000474-2015, CP-61-CR-0000666-2015
BEFORE: KUNSELMAN, J., MURRAY, J., and McLAUGHLIN, J.
OPINION
KUNSELMAN JUDGE
On July 31, 2024, we affirmed the order denying Frederick Walter II post-conviction relief. On August 23, 2024, PCRA appellate counsel filed an application to remand the case for a hearing pursuant to Commonwealth v. Grazier, 73 A.2d 81 (Pa. 1998). Therein, counsel states that she received a letter from Walter demanding she withdraw so that he could raise issues of her ineffectiveness in representing him on appeal. Thus, we are confronted with the issue of whether a PCRA petitioner is able to raise claims of PCRA appellate counsel's ineffectiveness after this Court has affirmed the denial of post-conviction relief.
On August 14, 2024, Walter filed a pro se petition for reargument or reconsideration in which he raised claims of PCRA appellate counsel's alleged ineffectiveness. For reasons expressed herein, this pro se application is denied.
The present scenario is not completely unexpected. In his concurring opinion in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), Justice Wecht recognized that, "in some cases, PCRA appellate counsel's ineffectiveness might not become apparent until the conclusion of merits review in [the Superior] court". Id. at 408 (Wecht, J., Concurring). In his concurring opinion in Bradley, Justice Dougherty noted that the "first opportunity" for a PCRA petitioner to raise claims of PCRA appellate counsel's alleged ineffectiveness "would not be in a petition for allowance of appeal filed with this Court, but rather in a reargument petition filed in the Superior Court"). Id. (Dougherty, J., Concurring).
In Commonwealth v. Greer, 316 A.3d 623 (Pa. 2024), our Supreme Court concluded that, when a PCRA petitioner seeks to raise Bradley claims against PCRA appellate counsel while his petition is pending on appeal, this Court "must remand the case to the PCRA court to have an on-the-record colloquy with the petitioner about his right to counsel, his inability to proceed through hybrid representation, and how he wishes to proceed." Greer, 316 A.3d at 625. See also Commonwealth v. Robinson, 2024 PA Super 163 (Pa. Super. filed July 31, 2024) (following the high court's Greer decision and remanding for an on-the-record colloquy pursuant to Grazier).
Reading these cases together, we believe the appropriate cut-off to raise PCRA appellate counsel's ineffectiveness is after the brief is filed, but before the Superior Court has rendered its decision. Once PCRA appellate counsel has filed a brief on behalf of the petitioner, the petitioner has knowledge of the claims raised and if any claims are omitted or misstated. As this is the earliest time that the petitioner becomes aware of PCRA appellate counsel's alleged ineffectiveness, he must raise the Bradley claims before the appellate court rules on the merits.
Here, Walter did not file any pro se document indicating that he wished to raise claims of PCRA appellate counsel's ineffectiveness, either prior to counsel's filing of a merits brief or prior to this Court's disposition of his appeal. Instead, Walter raised his claims for the first time in a petition for reconsideration or reargument after we affirmed the denial of post-conviction relief. Because Walter did not raise his ineffectiveness claims prior to this Court ruling on his petition, he may not do so in his petition for reargument or reconsideration.
Whether Walter may raise these claims for the first time in his petition for allowance of appeal to the Supreme Court, is a question properly reserved for that court.
Returning to PCRA appellate counsel's request for remand to hold a Grazier hearing, we deny the application because such a hearing would serve no legitimate purpose given the present procedural posture. A PCRA petitioner is not entitled to the appointment of new counsel once PCRA counsel files a no-merit letter and is permitted to withdraw. See generally, Commonwealth v. Shaw, 217 A.3d 265, 26 n.3 (Pa. Super. 2019). Clearly, that same petitioner would not be entitled to the appointment of new counsel to pursue alleged claims of PCRA appellate counsel's ineffectiveness after this Court has affirmed the order denying him post-conviction relief. Once we have ruled on the PCRA petition, both the PCRA court and this Court have found no merit to a petitioner's layered ineffectiveness claims. We are hard-pressed to believe new counsel could assert a claim that would warrant post-conviction relief.
Application for remand denied. Application for reargument denied.