Com. v. Hartleb, R. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD ADAM HARTLEB
Appellant No. 1823 WDA 2015
Appeal from the PCRA Order October 19, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000856-2013 CP-25-CR-0001217-
2013
BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 15, 2016
Richard Adam Hartleb appeals from the trial court’s order denying his
petition filed pursuant to the Post Conviction Relief Act (PCRA). 1 Upon
review, we find that PCRA counsel has failed to comply with the
requirements of Turner/Finley and remand for the preparation of either an
advocate’s brief or a proper Turner/Finley brief.2
On September 23, 2013, a jury convicted Hartleb of four counts of
terroristic threats, four counts of simple assault, one count of possessing an
instrument of a crime, and one count of a person carrying a firearm without
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1
42 Pa.C.S. §§ 9541-9546.
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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a license.3 These convictions stemmed from an incident that occurred on
February 8, 2013, in which Hartleb pointed a handgun at several individuals
at Haggerty’s Bar in Erie. On November 5, 2013, Hartleb pled guilty to one
count of recklessly endangering another person and one count of person
carrying a firearm without a license.4 These guilty pleas arose out of an
incident on January 13, 2013, when Hartleb fired a handgun near the victim
and toward a vehicle on the 1100 block of Wallace Street in Erie.
Hartleb’s trial attorney filed a motion to consolidate the sentencing
hearings for Docket No. 856 and Docket 1217.5 On November 14, 2013,
the Honorable John Garhart sentenced Hartleb to an aggregate term of 6 to
14 years’ incarceration. On November 22, 2013, Hartleb filed a motion to
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3
18 Pa.C.S. § 2706, 18 Pa.C.S. § 2701, 18 Pa.C.S. § 907, and 18 Pa.C.S. §
6106, respectively. Hartleb was sentenced to 9 months to 30 months for
each count of terroristic threats (counts 1, 2, 3, and 4), 9 months to 24
months for each count of simple assault (counts 9, 10, 11, and 12), 9
months to 60 months for possessing an instrument of a crime (count 13),
and 30 months to 84 months for a person carrying a firearm without a
license (count 14) at Docket No. 1217 of 2013. Counts 1, 2, 3, 4, 9, 10, 11,
12 and 13 are concurrent to each other and count 14.
4
18 Pa.C.S. § 2705 and 18 Pa.C.S. § 6106, respectively. Hartleb was
sentenced to 12 months to 24 months for one count of recklessly
endangering another person (count 3) and 42 months to 84 months for one
count of a person carrying a firearm without a license (count 6) at Docket
No. 856 of 2013.
5
Trial counsel filed a motion to consolidate sentencing dates, requesting the
court to consolidate Docket No. 1217 of 2013 and Docket No. 856 of 2013.
The trial court granted the motion on Docket No. 856 at Docket Entry 11.
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modify and reduce sentence, requesting that the court run count 6 on
Docket 856 of 2013 concurrently rather than consecutively to his sentence
to count 14 on Docket 1271 of 2013.6 Judge Garhart denied Hartleb’s
motion to modify and reduce sentence on December 6, 2013. Hartleb filed a
timely notice of appeal, and the trial court ordered Hartleb to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Counsel filed
a statement of intent to file an Anders/McClendon7 brief in lieu of a Rule
1925(b) statement. On August 22, 2014, this Court granted counsel’s
petition to withdraw and affirmed Hartleb’s judgment of sentence.8
Commonwealth v. Hartleb, No. 1966 WDA 2013, unpublished
memorandum at 1 (Pa. Super. filed August 22, 2014).
On May 16, 2015, Hartleb filed a pro se motion to correct formal error,
arguing that his sentences on Docket No. 856 of 2013 and on Docket No.
1217 of 2013 are illegal. The trial court treated Hartleb’s motion as a PCRA
petition and the trial court appointed Hartleb PCRA counsel. Hartleb’s PCRA
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6
Trial counsel’s motion to modify and reduce sentence incorporated by
reference Hartleb’s pro se petition for sentence modification filed at Docket
No. 1217 of 2013 and Docket No. 856 of 2013.
7
Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
8
In the Anders brief, Hartleb alleged that his sentence was excessive
because the trial court ordered the sentences in Hartleb’s cases to run
consecutively, rather than concurrently. Hartleb also alleged that the
Commonwealth presented insufficient evidence for a jury to conclude beyond
a reasonable doubt that Hartleb carried a firearm without a license.
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counsel subsequently filed a motion to supplement Hartleb’s PCRA petition,
suggesting that Hartleb’s claim that his prior record score was incorrectly
calculated lacked legal merit.9 Hartleb’s PCRA counsel then sent a letter to
the trial court in an attempt to clarify his supplement, suggesting that his
“evaluation was misplaced in that [Hartleb] was never convicted of arson-
endangering persons in Texas, but that the conviction was for arson of
unoccupied property.” Exhibit C-1 to Appellant’s Brief, at 1.10
The trial court filed a notice of intent to dismiss without a hearing on
September 23, 2015. Pa.R.Crim.P. 907. Hartleb filed a timely pro se motion
for objection to dismissal of his PCRA petition, which the trial court denied by
final order on October 19, 2015. Hartleb filed a pro se notice of appeal on
October 19, 2015, and the trial court directed Hartleb to file a Rule 1925(b)
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9
Hartleb argues that his arson conviction in Texas was incorrectly graded for
purposes of calculating his prior record score. Hartleb suggests that his
Texas conviction should have been graded as an (F-2) rather than an (F-1),
which would have reduced his prior record score from a 5 to a 3. Hartleb’s
PCRA counsel suggests that this claim is without merit. See Exhibit C to
Appellant’s Brief, at 1. Hartleb also argues that the offense gravity score for
his conviction of one count of a person carrying a firearm without a license
should have been calculated as a 5 rather than a 7. Hartleb’s PCRA counsel
offers no opinion on this claim other than “the utilization of the correct OGS
of 5 would have a resultant downward modification in the applicable
guideline ranges.” Exhibit C to Appellant’s Brief, at 2.
10
Hartleb’s PCRA counsel attempts to clarify Hartleb’s pro se argument that
his prior arson conviction in Texas, which was graded as an (F-1) equivalent
to arson endangering a person in Pennsylvania, should have been graded as
an (F-3) equivalent to arson of unoccupied property in Pennsylvania.
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statement.11 The trial court filed a Rule 1925(a) opinion on December 16,
2015.
Preliminarily, we note that
The 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. [O]nce counsel
has entered an appearance on a [petitioner's] behalf
he is obligated to continue representation until the
case is concluded or he is granted leave by the court
to withdraw his appearance.
Commonwealth v. Smith, 121 A.3d 1049, 1053 (Pa. Super. 2015)
(citations omitted); Pa.R.Crim.P. 904(E).
Hartleb’s PCRA counsel suggests that at least one of Hartleb’s claims
lacks legal merit. See Exhibit C to Appellant’s Brief, at 1. Court-appointed
counsel who seek to withdraw from representing an appellant on appeal of a
denial of a PCRA petition on the basis that the appeal lacks merit must: (1)
attach a “no-merit” letter to the application; (2) 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 in the “no-merit” letter; (3) set
forth an explanation of why the petitioner’s issues are meritless in the “no-
merit” letter; and (4) contemporaneously forward to the petitioner a copy of
the application to withdraw, which must include (i) a copy of both the “no-
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11
Hartleb filed a Rule 1925(b) statement pro se, despite being appointed
PCRA counsel on May 21, 2015, on Docket No. 856 of 2013.
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merit” letter, and (ii) a statement advising the PCRA petitioner that, in the
event the 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. Commonwealth v. Friend, 896 A.2d 607, 614-15 (Pa. Super.
2006).
After reviewing the record, and without making a determination as to
the merits of Hartleb’s claims, we conclude that Hartleb may have at least
one colorable claim to advance in the PCRA court. It is not clear to this
Court, however, whether PCRA counsel intended his supplement or the letter
dated July 24, 2015 to be “no-merit” letters consistent with Turner/Finley.
In any event, neither complies with Turner/Finley. PCRA counsel wrote
I submitted a supporting pleading as to the
Petitioner’s claim that the wrong offense gravity
score was utilized by the probation department while
offering a no-merit statement in regard to the claim
that the prior record score was also miscalculated in
regard to the grading of a prior criminal conviction in
Texas.
Exhibit C-1 to Appellant’s Brief, at 1.
Counsel’s position is unclear. If PCRA counsel wishes to withdraw,
then he must comply with the procedural requirements under
Turner/Finley. PCRA counsel has also failed to acknowledge that Hartleb
may have an ineffective assistance of counsel claim based on trial counsel’s
failure to object to both the pre-sentence report and the sentencing
guidelines reviewed by the trial court during Hartleb’s sentencing
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proceeding. Appellant’s Brief, at 9 (“Counsel had no objection to the
presentence report or the accuracy of the PSI or the sentencing guidelines
used to sentence Appellant.”); see also Commonwealth v. Glover, 738
A.2d 460, 464 (Pa. Super. 1999) (Turner requires counsel to list each issue
which appellant wants PCRA Court to review and explain why each issue
identified by appellant must be deemed meritless.).
Furthermore, it appears to this Court that based on Hartleb’s and PCRA
counsel’s simultaneous filings, PCRA counsel has not sufficiently examined
the case. See Smith, supra. Based on the foregoing reasons, we direct
PCRA counsel to either file a formal petition to withdraw and comply with the
requirements of Turner/Finely, or file an advocate’s brief within 30 days of
the filing of this memorandum. The Commonwealth may file its brief within
30 days of the filing of Appellant’s brief.
Hartleb’s motion to strike is denied.12 Case remanded with
instructions. Panel jurisdiction retained.
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12
Hartleb filed a pro se motion to strike Appellee’s brief on July 1, 2016,
arguing that the Commonwealth failed to serve him with its brief, thus
preventing Hartleb from filing a reply brief. Hartleb filed a reply brief, pro
se, on August 17, 2016. The Court has considered Hartleb’s reply brief.
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