Com. v. McRae, O. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ORRIN WINSTON MCRAE,
Appellant No. 1023 EDA 2015
Appeal from the PCRA Order April 2, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001580-2013
BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.
DISSENTING MEMORANDUM BY SHOGAN, J.: FILED MAY 05, 2017
After careful review, I believe that the more prudent approach in this
case is to remand for a determination or clarification by the trial court of
whether appointed counsel abandoned Appellant in the post -sentencing and
direct -appeal process, rather than immediately reinstating Appellant's direct
appeal rights. Accordingly, I respectfully dissent.
We have often expressed that the right to counsel is guaranteed by
the Sixth Amendment to the United States Constitution and by Article I,
Section Nine of the Pennsylvania Constitution. Commonwealth v. Floyd,
937 A.2d 494, 501 (Pa. Super. 2007). Pennsylvania Rule of Criminal
Procedure 122 addresses the appointment of counsel and provides, in
relevant part, as follows:
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Rule 122. Appointment of Counsel
(B) When counsel is appointed,
* * *
(2) the appointment shall be effective until final
judgment, including any proceedings upon direct
appeal.
Pa.R.Crim.P. 122. In addition, the comment to Rule 122 provides the
following, in pertinent part:
Pursuant to paragraph (B)(2), counsel retains his or
her appointment until final judgment, which includes all
avenues of appeal through the Supreme Court of
Pennsylvania. In making the decision whether to file a petition
for allowance of appeal, counsel must (1) consult with his or her
client, and (2) review the standards set forth in Pa.R.A.P. 1114
(Considerations Governing Allowance of Appeal) and the note
following that rule. If the decision is made to file a petition,
counsel must carry through with that decision. See
Commonwealth v. Liebe!, 573 Pa. 375, 825 A.2d 630 (2003).
Concerning counsel's obligations as appointed counsel, see
Jones v. Barnes, 463 U.S. 745 (1983). See also
Commonwealth v. Padden, 783 A.2d 299 (Pa. Super. 2001).
See Commonwealth v. Alberta,601 Pa. 473, 974 A.2d
1158 (2009), in which the Court stated that "[a]ppointed counsel
who has complied with Anders [v. California, 386 U.S. 738(1967),] and is permitted to withdraw discharges the direct
appeal obligations of counsel. Once counsel is granted leave to
withdraw per Anders, a necessary consequence of that decision
is that the right to appointed counsel is at an end."
Pa.R.Crim.P. 122 cmt. (emphasis added) (brackets in original). In addition,
we have strongly stated the following:
We remind and admonish all counsel, both privately
retained and court appointed, that, once an appearance is
entered, the attorney is responsible to diligently and
competently represent the client until his or her appearance is
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withdrawn. Rules of Professional Conduct 1.1 and 1.3. This
responsibility includes filing an appeal when the client so
requests. Counsel is also reminded that an appearance may be
withdrawn only by leave of court. Pa.R.Crim.P. 120.
Commonwealth v. Librizzi, 810 A.2d 692, 693 (Pa. Super. 2002).
My review of the certified record reflects that, at his preliminary
hearing on March 5, 2013, Appellant was represented by Attorney Taylor
Dunn. Subsequently, on May 3, 2013, Attorney Marc J. DaFermo of the
Delaware County Public Defender's Officer entered his appearance on behalf
of Appellant, and he represented Appellant at a suppression hearing held on
August 7, 2013. On October 8, 2013, Attorney Dawn Sutphin, also of the
Delaware County Public Defender's Officer, entered her appearance on
behalf of Appellant. The record reflects that Attorney Sutphin represented
Appellant at his guilty plea hearing and sentencing on February 4, 2014.
Moreover, Attorney Sutphin assisted Appellant in completing a detailed
written guilty plea colloquy. Included with the written colloquy is an
extensive statement of post -sentence rights, which was appropriately
initialed and signed by both Appellant and Attorney Sutphin. As the Majority
correctly states:
there nothing in the record indicating that plea counsel
is
consulted with [Appellant] regarding his post -sentence or
appellate rights, other than what is stated in the standard
language of the written guilty plea colloquy. See Guilty Plea
Statement, Statement of Post -Sentence Rights, 2/4/14 ("I
represent the Defendant in the above -captioned case. I have
explained the Post -Sentence Rights contained in this document
to [Appellant,] and I am satisfied that [Appellant] understands
these rights.").
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Commonwealth v. McRea, Majority Memorandum at 4.
The trial court docket reflects that no further action occurred in this
matter until three months later, when, on May 8, 2014, Appellant filed the
instant pro se PCRA petition and requested the appointment of counsel. In
the PCRA petition, Appellant made a bald allegation of "ineffective counsel."
PCRA Petition, 5/8/14, at 3. On May 19, 2014, the PCRA court appointed
Attorney Henry DiBenedetto Forrest to represent Appellant for purposes of
the PCRA petition and instructed counsel to file an amended PCRA petition
within sixty days. However, on September 25, 2014, Attorney Forrest filed
an application to withdraw his appearance and a no -merit letter. In his no -
merit letter, Attorney Forrest addressed various allegations of plea counsel's
ineffective assistance but did not address whether Attorney Sutphin
abandoned Appellant following sentencing. On September 25, 2014, the
PCRA court entered an order granting counsel permission to withdraw and
also entered an order giving Appellant Pa.R.Crim.P. 907 notice of its intent
to dismiss the PCRA petition without a hearing. Ultimately, on April 2, 2015,
the PCRA court entered an order dismissing the PCRA petition, and this
timely pro se appeal followed.
While it appears that Attorney Sutphin may not have fulfilled her duty
as appointed counsel throughout the direct appeal, and it is obvious that she
did not request to withdraw from representation, I believe the lack of
evidence in the certified record pertaining to counsel's action, or inaction,
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poses a problem because we are not a fact-finding court. See
Commonwealth v. Grant, 813 A.2d 726, 734 (Pa. 2002) (noting that
appellate courts do not act as fact finders); Commonwealth v. Grundza,
819 A.2d 66, 68 (Pa. Super. 2003) (appellate court does not in first instance
make findings of fact) (citation and quotation marks omitted). Indeed, this
issue was not articulated in Appellant's pro se PCRA petition or in Attorney
Forrest's no -merit letter so that the PCRA court could adequately address the
concern of abandonment. Hence, I would remand this matter to the PCRA
court for a determination of whether appointed counsel abandoned Appellant
in the post -sentencing and direct appeal process. See Librizzi, 810 A.2d at
693 (remanding of pro se appeal for determination of the appellant's
representation).
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