Com. v. Brown, J. ( 2018 )


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  • J-S85006-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
    :          PENNSYLVANIA
    :
    v.                           :
    :
    :
    JOHN FREDERICK BROWN, JR.                 :
    :
    Appellant              :     No. 41 WDA 2017
    Appeal from the PCRA Order December 9, 2016
    In the Court of Common Pleas of McKean County Criminal Division at
    No(s): CP-42-CR-0000394-2013
    BEFORE: BOWES, J., PANELLA, J., and STABILE, J.
    MEMORANDUM BY BOWES, J.:                                   FILED MAY 21, 2018
    John Frederick Brown, Jr., appeals pro se from the order that
    dismissed his petition filed pursuant to the Post Conviction Relief Act. We
    vacate the order and remand with instructions.
    The record reveals the following.        Appellant was charged with rape,
    attempted rape, two counts of indecent assault, aggravated assault, and
    simple assault resulting from his attack on his former paramour. Douglas J.
    Garber, Esquire, of the Public Defender’s Officer, was appointed to represent
    Appellant because he could not afford to hire a private attorney. Leading up
    to   trial,   Attorney   Garber   sought       discovery   materials   from   the
    Commonwealth, including results of any testing done upon the rape kit
    collected from the victim at the hospital. However, he withdrew a motion to
    compel after the Commonwealth’s represented that no testing had been
    J-S85006-17
    done on the rape kit. Attorney Garber did not have testing done on the rape
    kit for the defense, although Appellant had so requested.         N.T. PCRA
    Hearing, 12/9/16, at 10-11.
    Following a jury trial, Appellant was convicted on all counts except
    aggravated assault.      Before Appellant was sentenced, he filed a pro se
    document purporting to notify Attorney Garber that his services were
    terminated based upon ineffective assistance, complaining, inter alia, of a
    lack of discovery materials and counsel’s badgering him into declining to
    testify at trial.   The trial court conducted a hearing on Appellant’s motion
    immediately prior to sentencing on January 17, 2014.
    At the hearing at which Attorney Garber was present, Appellant first
    argued pro se that the Commonwealth failed to comply with discovery rules
    and Brady v. Maryland, 
    373 U.S. 83
     (1963).            The trial court advised
    Appellant: “That’s a matter for Appeal that’s not a matter for me at this
    time.”   N.T. Motion for Substitute Counsel and Sentencing, 1/17/14, at 5.
    Appellant next sought to argue Attorney Garber’s ineffectiveness, but the
    court informed him: “That’s for Post-Conviction Relief Act that’s not before
    me now.”      
    Id.
        The trial court denied Appellant’s motion, and Attorney
    Garber thus remained Appellant’s counsel.
    The trial court then immediately proceeded to sentencing, imposing an
    aggregate term of imprisonment of eight to twenty-two years.       Regarding
    post-sentence rights, the trial court informed Appellant that he had the right
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    to the assistance of an attorney in pursing a direct appeal, and that if he
    could not afford one, the trial court “will appoint an attorney to represent
    you free of charge.”       Id. at 7.       The trial court did not explain that the
    attorney whose assistance was available was Attorney Garber, who had
    already been appointed to represent Appellant based upon his indigence.
    In a pro se post-sentence motion docketed on January 27, 2014,
    Appellant again raised issues regarding the rape kit and Attorney Garber’s
    ineffectiveness, and sought the appointment of substitute counsel.             The
    docket does not reflect that Appellant’s motion was forwarded to counsel as
    is required by Pa.R.Crim.P. 576(A)(4).              On the same day on which
    Appellant’s motion was docketed, the trial court entered two orders, both of
    which were served on Appellant and the Public Defender’s office. One of the
    orders indicated that Appellant’s post-sentence motion was denied without a
    hearing, stated that Appellant had thirty days from the date of that order to
    file an appeal,1 and again informed already-represented Appellant that he
    had the right to have counsel appointed for an appeal if he was proceeding
    in forma pauperis (“IFP”).         Order, 1/27/14 (document 44 in the certified
    record). The other order, noting “it appearing that no PCRA petition and no
    appeal is pending before this [c]ourt,” denied Appellant’s request for the
    ____________________________________________
    1 A pro se post-sentence motion filed by a represented party is “a nullity,
    having no legal effect.” Commonwealth v. Nischan, 
    928 A.2d 349
    , 355
    (Pa.Super. 2007).
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    appointment of substitute counsel on the basis that Appellant had failed to
    show irreconcilable differences between himself and trial counsel.       Order,
    1/27/14 (document 45 in the certified record).
    On February 4, 2014, the prothonotary docketed yet another pro se
    motion for appointment of substitution of counsel filed by Appellant.       The
    docket does not reflect that it was forwarded to counsel as required by
    Pa.R.Crim.P. 576(A)(4). The trial court denied it the same day, which was
    within the thirty-day appeal period, on the bases that “the docket reflect[s]
    that there is no pending matter before the [c]ourt for which appointed
    counsel is necessary, and [Appellant] [had] baldly alleged ‘irreconcilable
    differences.’” Order, 2/4/14.
    The next docket entry is a pro se motion to amend notice of appeal2
    filed by Appellant on May 2, 2014.3 In the motion, Appellant indicated that
    his appeal was from his January 17, 2014 judgment of sentence rather than
    the January 27, 2014 order that denied his post-trial motions. Once again,
    the docket does not reflect compliance with Pa.R.Crim.P. 576(A)(4). Rather
    ____________________________________________
    2 The certified record contains no indication that Appellant had filed a notice
    of appeal at that point, and it does not appear Appellant filed a notice in this
    Court during the relevant time.
    3The motion is dated April 23, 2014, and its envelope is postmarked April
    29, 2014.
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    than treat the motion as a PCRA petition,4 the PCRA court denied it, “it
    appearing that there is no pending matter regarding this criminal action.”
    Order, 5/2/14. The Public Defender’s office was copied on the order denying
    Appellant’s motion.
    On May 15, 2014, Attorney Garber filed a petition for leave to
    withdraw his appearance, stating therein that the case was complete, as
    there were no outstanding issues and no notice of appeal filed. Petition for
    Leave to Withdraw, 5/15/14. The petition was denied by an order that was
    filed May 21, 2014, but not served upon Appellant.         However, Attorney
    Garber’s subsequent praecipe to withdraw appearance was served on
    Appellant on May 22, 2014.
    In August 2014, Appellant filed a motion for transcripts and a motion
    seeking leave to appeal IFP. By orders filed September 2, 2014, the PCRA
    court denied the former on the basis that no appeal was filed within thirty
    days of Appellant’s judgment of sentence, and the latter because there was
    neither an appeal nor PCRA petition pending.
    On January 8, 2015, Appellant filed a timely pro se PCRA petition.
    Therein he claimed that Attorney Garber coerced him into not testifying at
    trial, advocated for the prosecution, and failed to: file post-trial or post-
    ____________________________________________
    4 See, e.g., Commonwealth v. Taylor, 
    65 A.3d 462
    , 466 (Pa.Super. 2013)
    (“[A]ll motions filed after a judgment of sentence is final are to be construed
    as PCRA petitions.”).
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    sentence motions or a direct appeal, preserve the discovery issues, or
    investigate witnesses and formulate an adequate defense.                PCRA Petition,
    1/8/15, at 3-4v. He also claimed that the Commonwealth failed to provide
    discovery materials. 
    Id.
     at 4i. On June 8, 2015, Appellant filed a request
    for a status report on his PCRA petition, and for transcripts.
    On July 14, 2015, the PCRA court appointed James P. Miller, Esquire,
    to represent Appellant and ordered him to file an amended petition within
    thirty days. Attorney Miller requested and was granted an extension of time
    until October 31, 2015, to file an amended petition.             Order, 9/3/15.     By
    order of October 5, 2015, the PCRA court granted Attorney Miller’s request
    for transcripts.      The transcripts and the Commonwealth’s answer to
    Appellant’s pro se petition were filed in November 2015. Attorney Miller did
    not file an amended petition.
    The docket reflects no further activity until July 16, 2016, when
    Appellant pro se filed a motion for change of counsel, or to proceed pro se,
    claiming that      Attorney Miller was ineffective in failing to either file an
    amended     PCRA     petition   or   seek    leave    to    withdraw     pursuant    to
    Commonwealth          v.   Turner,     
    544 A.2d 927
       (Pa.    1988),     and
    Commonwealth v. Finley, 
    550 A.2d 213
     (Pa.Super. 1988) (en banc). The
    PCRA court scheduled and rescheduled a hearing on Appellant’s motion but,
    for reasons not discernible from the record, the PCRA court without a
    hearing vacated Attorney Miller’s appointment and appointed Robert D.
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    Kinnear, Esquire, in his stead.     The PCRA court further directed Attorney
    Kinnear to file an amended PCRA petition within thirty days and scheduled a
    hearing.
    Attorney Kinnear did not file an amended PCRA petition. Instead, he
    appeared at the scheduled hearing and informed the PCRA court that he did
    not feel the need to file an amended petition because Appellant’s pro se
    petition “raised any issues I would have raised.”           N.T. PCRA Hearing,
    12/9/16, at 6.    Attorney Kinnear nevertheless proceeded on the record to
    explain his opinion that a number of Appellant’s issues lacked merit.           
    Id.
    When the PCRA court asked him if he wanted to orally amend the PCRA
    petition to withdraw the non-meritorious claims, Attorney Kinnear indicated
    as follows.
    I don’t think I have the right to withdraw that if it’s his position.
    I am representing him, but I would certainly write a no-merit
    letter regarding those claims after I did . . . a full investigation of
    the record . . . to support that. I believe the claims to be
    meritless.
    Id. at 7-8.   Attorney Kinnear informed the PCRA court that he wished to
    limit the PCRA hearing to the issues of “whether the appeal rights were
    preserved or requested,” whether Appellant “was advised prior to not
    testifying that it was his right to testify or not to testify,” and “the third one,
    which I think may or may not have bearing on the [c]ourt, which I think is
    the most pressing issue, would be the [d]iscovery issue of DNA requesting.”
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    Id. at 6-7.    Appellant’s consent to the limitation of issues was neither
    requested nor volunteered.
    Attorney Kinnear presented the testimony of Attorney Garber and
    Appellant. At the conclusion of the hearing, Attorney Kinnear argued to the
    PCRA court that Appellant’s claim regarding counsel’s pressure not to testify
    at trial was meritless. Id. at 35. Regarding the rape kit and the fact that it
    was never tested, Attorney Kinnear indicated that he did not know what
    duties were in place, if any, and offered to do research and file a brief if the
    PCRA court so desired. Id. at 36. Finally, Attorney Kinnear acknowledged
    that Attorney Garber testified that Appellant did not request that he file an
    appeal, but suggested, without actually so stating, that the record supported
    a finding that Appellant expressed a desire for a direct appeal.      Id.   The
    PCRA court denied Appellant’s petition at the conclusion of the hearing.
    On December 19, 2016, Attorney Kinnear filed both a notice of appeal
    to this Court and a petition to withdraw as counsel.     In the accompanying
    no-merit letter, Attorney Kinnear, inter alia, advised Appellant that he would
    be able to hire private counsel or proceed pro se if the motion to withdraw
    was granted. No-Merit Letter, 12/19/16, at unnumbered 4. On December
    29, 2016, Attorney Kinnear filed an amended notice of appeal.         By order
    entered January 3, 2017, the PCRA court granted Attorney Kinnear’s
    petition, despite the pendency of the appeal to this Court. The docket does
    not reflect that the order was served on Appellant.         Appellant filed an
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    objection to Attorney Kinnear’s petition and no-merit letter, citing the appeal
    pending in this Court. Notice of Objection, 1/17/17. No action was taken
    upon Appellant’s objection.
    On February 16, 2017, Attorney Kinnear filed a motion to withdraw in
    this Court to which he attached the PCRA court’s January 3, 2017 order as
    well as the no-merit letter.5 This Court entered an order providing that “the
    motion is granted such that [A]ttorney Kinnear is excused from his
    representation of Appellant” and that Appellant “is advised that he is now
    proceeding pro se in this appeal, but that he is free to employ counsel to
    represent him.” Order, 2/22/17.
    The PCRA court ordered Appellant to file a concise statement of errors
    complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed an
    application for relief in this Court seeking to compel the PCRA court to
    provide him with the documents necessary for him to file his Rule 1925(b)
    statement and brief in this Court, i.e., transcripts, docket entries, filings.
    Application for Relief, 3/15/17, at 1-2. This Court ordered the PCRA court to
    provide Appellant with “all materials of record necessary for the prosecution
    ____________________________________________
    5 In recounting the procedural history of the case in its 1925(a) opinion, the
    PCRA court did not mention Attorney Kinnear’s withdrawal petition filed in
    the PCRA court or its January 3, 2017 order granting it. Rather, the PCRA
    court indicated that Attorney Kinnear filed a motion to withdraw in the
    Superior Court on February 17, 2017, and that this Court permitted the
    withdrawal by order of January 12, 2017, which, impossibly, was a month
    prior to the filing of the motion.       PCRA Court Opinion, 6/19/17, at
    unnumbered 2.
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    of the instant appeal” within thirty days.        Order, 3/23/17.      Appellant
    requested, and the PCRA court granted, an extension of time for Appellant to
    file his Rule 1925(b) statement.
    Appellant filed another application for relief in this Court, complaining
    that the PCRA court had failed to provide him with the documents indicated
    in this Court’s March 23, 2017 order, and additionally seeking “the scientific
    tests of rape kit and biological D.N.A.”      Application for Relief, 5/5/17, at
    unnumbered 1. This Court ordered the PCRA court to comply with the March
    23, 2017 order forthwith. Order, 5/11/17. The PCRA court responded by
    stating that it had no DNA or other scientific reports to provide.
    Appellant filed his concise statement in the PCRA court on May 8,
    2017, alleging various instances of ineffectiveness of trial counsel, as well as
    claims that Attorney Kinnear was ineffective in failing to, inter alia, amend
    Appellant’s pro se PCRA petition and preserve issues for appeal.        Concise
    Statement, 5/8/17, at ¶¶ h, k. The PCRA court filed its Rule 1925(a) opinion
    on June 19, 2017.      The following day, the PCRA hearing transcript was
    docketed, and the record transmitted to this Court. After Appellant filed yet
    another application for relief in this Court regarding the PCRA court record,
    the PCRA court in November 2017 supplemented the certified record to
    include a transcript that had not been filed previously.
    Appellant filed additional applications for relief in this Court, including
    requests for extensions of time to file a brief, and a request for remand for
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    the appointment of new counsel and a new PCRA hearing based upon claims
    that the PCRA court erred in allowing Attorney Kinnear to withdraw. Request
    for Relief, 8/31/17.    This Court granted Appellant several extensions for
    filing his brief, but declined to grant his request for a remand.    Order,
    9/7/17. This appeal is now ripe for our consideration.
    Appellant presents this Court with claims of PCRA court error as well
    as allegations that Attorneys Kinnear and Garber rendered ineffective
    assistance. Appellants brief at § IV (pages unnumbered).
    We begin with a review of the relevant legal principles. “Our standard
    of review of a [PCRA] court order granting or denying relief under the PCRA
    calls upon us to determine ‘whether the determination of the PCRA court is
    supported by    the    evidence   of record and is free    of legal error.’”
    Commonwealth v. Barndt, 
    74 A.3d 185
    , 192 (Pa.Super. 2013) (quoting
    Commonwealth v. Garcia, 
    23 A.3d 1059
    , 1061 (Pa.Super. 2011)).
    On a first PCRA petition, a petitioner is entitled to the assistance of
    counsel to guarantee that he has “at least one meaningful opportunity to
    have [his] issues reviewed.”      Commonwealth v. Karanicolas, 
    836 A.2d 940
    , 945 (Pa.Super. 2003) (citations and internal quotation marks omitted).
    This Court has admonished, accordingly, that the point in time at
    which a trial court may determine that a PCRA petitioner’s claims
    are frivolous or meritless is after the petitioner has been
    afforded a full and fair opportunity to present those claims. Our
    [S]upreme [C]ourt has recognized that such an opportunity is
    best assured where the petitioner is provided representation by
    competent counsel whose ability to frame the issues in a legally
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    meaningful fashion insures the [PCRA] court that all relevant
    considerations will be brought to its attention.
    Commonwealth v. Hampton, 
    718 A.2d 1250
    , 1252 (Pa.Super. 1998)
    (internal quotation marks and citations omitted).       The right to counsel
    “extends throughout the post-conviction proceedings, including any appeal
    from the disposition of the PCRA petition.” Commonwealth v. Smith, 
    121 A.3d 1049
    , 1053 (Pa.Super. 2015).
    “When appointed, counsel’s duty is to either (1) amend the petitioner’s
    pro se [p]etition and present the petitioner’s claims in acceptable legal
    terms, or (2) certify that the claims lack merit by complying with the
    mandates of Turner/Finley.” Commonwealth v. Cherry, 
    155 A.3d 1080
    ,
    1083 (Pa.Super. 2017). “If appointed counsel fails to take either of these
    steps, our courts have not hesitated to find that the petition was effectively
    uncounseled.”   
    Id.
     (internal quotation marks omitted).
    If there are any issues of arguable merit, counsel must file an
    amended petition, exercising professional judgment to determine which
    claims to raise therein. This Court has held, in the context of a direct appeal
    in which a constitutional right to counsel exists, a defendant may not compel
    counsel to pursue even “nonfrivolous points requested by the client, if
    counsel, as a matter of professional judgment, decides not to present those
    points.”   Commonwealth v. Morrison, 
    173 A.3d 286
    , 292-93 (Pa.Super.
    2017).
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    Here, Attorney Kinnear chose a hybrid course that finds no support in
    the law. See 
    id.
     (rejecting hybrid brief, and noting “when counsel and an
    appellant disagree on which issues should be raised and/or briefed on
    appeal, counsel must only raise and/or brief the issues that counsel believes,
    consistent    with   counsel’s    ethical      duty,   to   be   nonfrivolous.   If   the
    disagreement arises . . . the appellant is free to petition for the withdrawal
    of counsel in order for the appellant to attempt to proceed pro se or with
    privately-retained counsel.”).        Attorney Kinnear did not file an amended
    PCRA petition on Appellant’s behalf.6 Rather, Attorney Kinnear proceeded to
    the PCRA hearing on Appellant’s pro se petition, asserted that the pro se
    petition raised the issues he would have raised, then proceeded to argue
    against his client before and after supposedly advocating for his interests.
    Even as to the claim he indicated had the most merit, Attorney Kinnear
    expressed an ignorance of the applicable law and confessed to his failure to
    examine the entire record. N.T. PCRA Hearing, 12/9/16, at 35-36. Attorney
    ____________________________________________
    6 Of note, Attorney Kinnear proceeded on a theory that Appellant in fact
    requested that Attorney Garber file an appeal. He did not pursue a claim
    that Attorney Garber failed to consult with Appellant about filing a direct
    appeal. See Roe v. Flores-Ortega, 
    528 U.S. 470
    , 480 (2000) (“[C]ounsel
    has a constitutionally imposed duty to consult with the defendant about an
    appeal when there is reason to think either (1) that a rational defendant
    would want to appeal (for example, because there are nonfrivolous grounds
    for appeal), or (2) that this particular defendant reasonably demonstrated to
    counsel that he was interested in appealing. In making this determination,
    courts must take into account all the information counsel knew or should
    have known.”).
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    Kinnear additionally misstated the law regarding his duty to amend
    Appellant’s petition, and his ability to seek DNA testing of the rape kit under
    the   PCRA,     confusingly    raising    the   newly-discovered   facts   timeliness
    exception at a hearing on a timely PCRA petition, when a request for DNA
    testing is in any event not governed by the PCRA’s timeliness requirements.7
    See id. at 37-39 (Attorney Kinnear’s discussion of the testing of the rape kit
    as newly-discovered evidence and inquiring of the PCRA court “isn’t there a
    60-day time limit … on … new evidence?”).
    The record before us shows that Attorney Kinnear “ultimately
    succeeded neither in advancing Appellant’s claims nor certifying their lack of
    merit.” Karanicolas, supra at 947. Thus, Appellant’s litigation “of his first
    PCRA petition was for all practical purposes uncounseled, depriving Appellant
    of the opportunity of legally trained counsel to advance his position in
    acceptable legal terms[.]” Id.
    ____________________________________________
    7 See Commonwealth v. Gacobano, 
    65 A.3d 416
    , 419 (Pa.Super. 2013)
    (holding one-year timeliness requirement did not apply to a request for DNA
    testing under 42 Pa.C.S. § 9543.1, even where “the PCRA petition . . .
    comingled the DNA test request with other PCRA-based requests for relief”).
    Attorney Kinnear’s failure to advocate Appellant’s claim with any clarity is
    further evidenced by the fact that the PCRA court initially made a finding
    that there was “no evidence whatsoever that there was a rape kit” for
    testing, and indicated that it would not grant PCRA relief “on the basis of an
    imagined piece of evidence[.]” N.T. PCRA Hearing, 12/9/16, at 39. After a
    sidebar, held off the record, the PCRA court changed its finding to
    acknowledge that both attorneys present informed the court that “there was
    some reason to think that a rape kit had been made but that there was no
    testing ever done[.]” Id. at 41.
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    Accordingly, we vacate the order which dismissed Appellant’s PCRA
    petition and remand for the appointment of new counsel to provide the
    representation to which Appellant is entitled under Pa.R.Crim.P. 904(C),
    beginning with the filing of an amended PCRA petition or a no-merit letter
    which satisfies all of the requirements of Turner and Finley.
    Order vacated.      Case remanded with instructions.      Jurisdiction
    relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/21/2018
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