Com. v. Geiger, F. ( 2018 )


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  • J-S38045-18
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,          :    IN THE SUPERIOR COURT OF
    :          PENNSYLVANIA
    Appellee              :
    :
    v.                            :
    :
    FRANKLYN M. GEIGER,                    :
    :
    Appellant             :
    :     No. 440 WDA 2018
    Appeal from the PCRA Order December 29, 2017
    in the Court of Common Pleas of Warren County
    Criminal Division at No(s): CP-62-CR-0000149-2016
    BEFORE: BOWES, NICHOLS, and STRASSBURGER,* JJ.
    MEMORANDUM BY STRASSBURGER, J.:                  FILED AUGUST 30, 2018
    Franklyn M. Geiger (Appellant) appeals from the order entered
    December 29, 2017, dismissing his petition filed under the Post Conviction
    Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.    Upon review, we vacate the
    order of the PCRA court and remand for proceedings consistent with this
    memorandum.
    On September 8, 2016, Appellant pled guilty at docket number 149 of
    2016 to two counts of possession with intent to deliver marijuana and/or
    oxycodone; one count of criminal use of a communication facility; one count
    of corrupt organizations; one count of buying/exchanging federal food
    stamps; and one count of cruelty to animals. Plea Agreement, 9/8/2016, at
    1; N.T., 9/8/2016, at 9-11. As part of the plea agreement, Appellant agreed
    to forfeit his animals to Paws Along the River Humane Society and to forfeit
    * Retired Senior Judge assigned to the Superior Court.
    J-S38045-18
    various items of personal property to the Warren County District Attorney’s
    Office / Warren County Drug Task Force.             Id.; see also Order Granting
    Commonwealth’s Motion for Consent Order, 9/9/2016, at 1-2. In exchange
    for the foregoing, the Commonwealth nolle prossed the remaining charges at
    docket number 149 of 2016, as well as charges at docket number 150 of
    2016.1        Plea Agreement, 9/8/2016, at 1; N.T., 9/8/2016, at 9; Order
    Granting Commonwealth’s Motion for Nolle Prosequi, 11/1/2016, at 1. The
    Commonwealth also amended the criminal information to add more specific
    facts.       N.T., 9/8/2016, at 9; Order Granting Commonwealth’s Motion to
    Amend Information, 9/8/2016; Amended Information, 9/12/2016.
    On October 28, 2016, the trial court sentenced Appellant to:
       11 to 22 months of incarceration for possession with intent to
    deliver at count 1;
       24 to 48 months of incarceration for possession with intent to
    deliver at count 5, to be served consecutive to the sentence at
    count 1;
       15   to    30   months   of   incarceration   for   criminal   use   of   a
    communications facility at count 7, to be served consecutive to the
    sentence at count 5;
    1 The record does not reveal any further details regarding docket number
    150 of 2016.
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       30 to 60 months of incarceration for corrupt organizations at count
    18, to be served consecutive to the sentence at count 7;
       11 to 22 months for buying/exchanging food stamps at count 20, to
    be served consecutive to the sentence at count 18;
       1 to 2 months of incarceration for cruelty to animals at count 25, to
    be served consecutive to the sentence at count 20.2
    N.T., 10/28/2016, at 23; Amended Sentencing Order, 12/5/2018, at 3. In
    the aggregate, Appellant’s sentence totaled 92 months to 184 months of
    incarceration. 
    Id. Appellant timely
    filed a post-sentence motion, which was denied on
    January 5, 2017. On February 2, 2017, Appellant’s counsel filed a motion
    for an extension of time for Appellant to file an appeal along with a motion
    to withdraw as Appellant’s counsel. That same day, the trial court allowed
    2
    The trial court issued an original sentencing order on October 31, 2016, but
    amended it on December 5, 2018, to order the sentence for cruelty to
    animals at count 25 to be served consecutive to the sentence at count 20,
    instead of the sentence at count 18 as it appeared in the original sentencing
    order.     Compare Amended Sentencing Order, 12/5/2016, at 3 with
    Sentencing Order, 10/28/2016, at 3. This amendment occurred beyond the
    30-day period allotted to the trial court to modify its orders pursuant to 42
    Pa.C.S. § 5505. No explanation appears in the record, but it appears that
    the trial court may have been correcting a mistake of the clerk in drafting
    the order, as the trial court orally ordered the sentence for cruelty to
    animals to be served consecutive to count 20 at the sentencing hearing.
    See N.T. 10/28/2016, at 23; Commonwealth v. Klein, 
    781 A.2d 1133
    ,
    1135 (Pa. 2001) (holding that 42 Pa.C.S. § 5505 “must be read in
    conjunction with a court’s inherent powers … to correct mistakes of the clerk
    or other officer of the court … even after the lapse of the term”) (citation and
    internal quotation marks omitted).
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    J-S38045-18
    Appellant’s counsel to withdraw and gave Appellant an extra 30 days to file a
    notice of appeal.3 However, no direct appeal was filed.
    On June 25, 2017, Appellant timely filed pro se a PCRA petition. John
    R. Thomas, Esquire was appointed to represent Appellant.           Instead of
    amending the petition, Attorney Thomas filed a request to withdraw and 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). On December 5, 2017, the PCRA court notified Appellant pursuant to
    Pa.R.Crim.P. 907 that it intended to dismiss the petition because Appellant’s
    claims presented no genuine issue of material fact and lacked merit. Rule
    907 Notice, 12/5/2017, at 1. Although the PCRA court referenced counsel’s
    motion with withdraw and no-merit letter in its Rule 907 notice, the PCRA
    court did not expressly rule upon the Turner/Finley motion.           
    Id. On December
    27, 2017, Appellant filed pro se a response to the Turner/Finley
    no-merit letter and the Rule 907 notice.4 Response to No Merit Letter and
    3
    The was error; a trial court lacks the authority to extend the time period for
    appeal. See Commonwealth v. Coolbaugh, 
    770 A.2d 788
    , 791 (Pa.
    Super. 2001); see also Commonwealth v. Perez, 
    799 A.2d 848
    , 851 (Pa.
    Super. 2002) (“Time limitations on the taking of appeals are strictly
    construed and cannot be extended as a matter of grace.”).
    4 Rule 907(a) provides for a 20-day timeframe to respond to the proposed
    dismissal. Pa.R.Crim.P. 907(a). Because the 20-day deadline fell on both a
    Sunday and a holiday, Appellant had until December 26, 2017, to respond.
    Although Appellant did not file the response until December 27, 2017, it
    appears that the trial court gave Appellant the benefit of the prisoner
    mailbox rule and considered his response. See Order, 12/29/2017, at 1
    (Footnote Continued Next Page)
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    Rule 907 Notice, 12/27/2017. In his answer, Appellant included a motion for
    leave to amend his PCRA petition. 
    Id. at 8-11.
    On December 29, 2017, the
    trial court dismissed the PCRA petition without ruling upon Appellant’s
    motion to amend his PCRA petition or counsel’s Turner/Finley motion to
    withdraw. Order, 12/29/2017, at 1.
    Appellant timely filed pro se a notice of appeal.           Appellant and the
    PCRA court complied with Pa.R.A.P. 1925.               Appellant raises the following
    issues on appeal:
    [1.] Is Appellant’s plea to the corrupt organization offense
    involuntary, where [plea] counsel was ineffective for failing to
    investigate the facts alleged by the Commonwealth and
    thereafter not objecting to a lack of factual basis for the corrupt
    organization [charge]?
    [2.] Is Appellant’s plea to the cruelty to [] animals offense
    involuntary, where [plea] counsel was ineffective for failing to
    investigate the facts alleged by the Commonwealth and
    thereafter not objecting to a lack of factual basis for the cruelty
    to animals [charge]?
    [3.] Was [plea] counsel ineffective for failing to object to the
    inaccurate and/or incorrect information contained in the [p]re-
    [s]entence [i]nvestigation (PSI) report?
    [4.] [Are] Appellant’s consecutive sentences for the possession
    with intent to deliver and corrupt organization illegal and should
    [they] have merged for sentencing purposes?
    (Footnote Continued)   _______________________
    (referencing Appellant’s response); Commonwealth v. Woods, 
    179 A.3d 37
    , 41 n.5 (Pa. Super. 2017) (stating that a pro se filing by an incarcerated
    prisoner is deemed filed on the date the prisoner deposits it with the prison
    authorities and/or places it in the prison mailbox).
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    [5.] Is Appellant’s jail term for the cruelty to animals offense
    illegal and in violation of the plea agreement as advised by
    [plea] counsel?
    Appellant’s Brief at 3 (numbering supplied; trial court answer omitted).
    Before we reach these issues, we observe that neither the Rule 907
    notice of intent to dismiss nor the order dismissing Appellant’s PCRA petition
    expressly states that Attorney Thomas was allowed to withdraw.
    Appellant is entitled to counsel on a first PCRA petition, which includes
    representation throughout an appeal.         See Pa.R.Crim.P. (904)(F)(2);
    Commonwealth v. Robinson, 
    970 A.2d 455
    (Pa. Super. 2009) (en banc).
    Once the PCRA court appoints counsel to represent a PCRA petitioner, formal
    leave of court is required before counsel may be deemed to have withdrawn.
    See Commonwealth v. Quail, 
    729 A.2d 571
    , 573 (Pa. Super. 1999).
    Because the law in this Commonwealth prohibits hybrid representation in
    PCRA proceedings and on appeal, Appellant cannot operate pro se if he is
    still represented by counsel. Commonwealth v. Willis, 
    29 A.3d 393
    , 400
    (Pa. Super. 2011).
    Of course, counsel is not required to defend a meritless claim. “When,
    in the exercise of his professional judgment, counsel determines that the
    issues raised under the [PCRA] are meritless, and when the [PCRA] court
    concurs, counsel will be permitted to withdraw and the petitioner may
    proceed pro se, or by privately retained counsel, or not at all.” 
    Turner, 544 A.2d at 928
    –29.      Because the PCRA court determined that Appellant’s
    -6-
    J-S38045-18
    petition had no merit, it would appear to be a mere formality that the PCRA
    court did not include in the Rule 907 notice of intent to dismiss or its final
    order that it granted counsel’s request to withdraw.5      Nevertheless, such
    formality is required.
    Furthermore, Appellant requested leave to amend his PCRA petition in
    his response to the Turner/Finley no-merit letter and Rule 907 notice, but
    the PCRA court never expressly ruled upon Appellant’s motion to amend
    before dismissing his petition.   Although the PCRA court clearly received
    Appellant’s response, see Order, 12/29/2017, at 1, there is no indication
    that the PCRA court considered Appellant’s request to amend his PCRA
    petition.6   Under Pa.R.Crim.P. 905(A), a PCRA court may grant leave to
    amend a petition “at any time.” Commonwealth v. Boyd, 
    835 A.2d 812
    ,
    816 (Pa. Super. 2003) (emphasis in original) (noting it was within the PCRA
    court’s discretion to consider supplemental issues raised by petitioner after
    counsel was permitted to withdraw pursuant to Turner/Finley).              C.f.
    Commonwealth v. Rigg, 
    84 A.3d 1080
    , 1085 (Pa. Super. 2014) (“Where a
    5
    In fact, the PCRA court appears to be operating under the mistaken belief
    that it did grant counsel’s motion to withdraw. In its Pa.R.A.P. 1925(a)
    opinion, the PCRA court states it granted counsel’s petition to withdraw in its
    Rule 907 notice, despite no express language appearing in the Rule 907
    Notice. PCRA Court Opinion, 2/8/2018, at 3.
    6
    Indeed, in its Pa.R.A.P. 1925(a) opinion, the PCRA court states Appellant
    waived the fourth and fifth issues Appellant presents on appeal by not
    raising them in his PCRA petition, but never mentions Appellant’s attempt to
    amend his petition to include such claims. PCRA Court Opinion, 2/8/2018, at
    9-10.
    -7-
    J-S38045-18
    petitioner does not seek leave to amend his petition after counsel has filed a
    Turner/Finley no-merit letter, the PCRA court is under no obligation to
    address new issues.”). Amendment of a petition should be “freely allowed to
    achieve substantial justice.” Pa.R.Crim.P. 905(A).     Rule 905(A) has been
    interpreted to “expressly allow [ ] a [PCRA] court substantial latitude to
    permit the amendment of the petition at any time after the petition’s initial
    filing.” 
    Boyd, 835 A.2d at 816
    .
    Thus, we are compelled to vacate the PCRA court’s December 29,
    2017 order dismissing Appellant’s petition, and remand for the court to rule
    on counsel’s pending petition to withdraw. If counsel is allowed to withdraw,
    Appellant may re-file pro se his motion for leave to amend the PCRA
    petition,7 and the PCRA court shall consider and rule upon such motion prior
    to ruling upon the claims in Appellant’s original PCRA petition.
    Order vacated. Case remanded for further proceedings. Jurisdiction
    relinquished.
    7
    Re-filing is necessary because without leave of court to withdraw, Attorney
    Thomas still represented Appellant at the time he filed the motion to amend.
    Generally, pro se filings by represented parties have no legal effect and are
    legal nullities. Commonwealth v. Williams, 
    151 A.3d 621
    , 623 (Pa.
    Super. 2016).
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/30/2018
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