Com. v. Carter, S. ( 2022 )

J-S30045-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHEILA ANN CARTER :
:
Appellant : No. 398 MDA 2021
Appeal from the PCRA Order Entered November 20, 2020
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0000932-2019
BEFORE: BENDER, P.J.E., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED FEBRUARY 25, 2022
Appellant, Sheila Ann Carter, appeals from the order of the Court of
Common Pleas of Schuylkill County (trial court) dismissing her Post Conviction
Relief Act (PCRA)1 petition without a hearing. For the reasons set forth below,
we reverse and remand this case for the trial court to enter an order
reinstating Appellant’s direct appeal rights.
On February 12, 2020, Appellant was convicted by a jury of two counts
of possession of a firearm by a prohibited person, four counts of possession
with intent to deliver a controlled substance (PWID), seven counts of
possession of a controlled substance, one count of possession of drug
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541–9546.
J-S30045-21
paraphernalia, and one count of possession of a prohibited offensive weapon.2
On March 30, 2020, the trial court sentenced Appellant to an aggregate term
of imprisonment of 15 to 30 years.
At her sentencing, the trial court advised Appellant that she would be
entitled to a lawyer to help prepare an appeal if she wished to file an appeal
and Appellant clearly and unequivocally stated that she wanted to file an
appeal. N.T. Sentencing at 31-32. Appellant’s trial counsel made an oral
motion to withdraw from representing Appellant, asserting that although he
knew that Appellant wanted to file an appeal, he believed that Appellant’s
claims were all claims of ineffective assistance of counsel that should be
asserted in a PCRA petition. Id. at 32. Appellant did not state that she agreed
with trial counsel’s assertions or that she consented to his withdrawal. Id. at
32-33. The trial court stated that it would take trial counsel’s oral motion to
withdraw under advisement and indicated that if it permitted trial counsel to
withdraw, it would appoint new counsel for Appellant. Id. On April 9, 2020,
the trial court granted trial counsel’s request to withdraw without appointing
appellate counsel for Appellant. Trial Court Order, 4/9/20.
No timely direct appeal was filed. On May 28, 2020, Appellant sent a
letter to the trial court requesting to file a PCRA petition. In this letter, which
____________________________________________
2 18 Pa.C.S. § 6105(a)(1), 35 P.S. § 780-113(a)(30), 35 P.S. § 780-
113(a)(16), 35 P.S. § 780-113(a)(32), and 18 Pa.C.S. § 908(a), respectively.
-2-
J-S30045-21
was received by the trial court on June 8, 2020, Appellant specifically sought
to be allowed to pursue a direct appeal from her judgment of sentence.
5/28/20 Letter (stating “I would like to appeal my sentence of 15-30 years”
and asserting, inter alia, a claim of alleged insufficiency of the evidence that
would be a subject of direct appeal). The trial court treated this letter as a
timely PCRA petition and appointed PCRA counsel to represent Appellant. Trial
Court Opinion, 5/28/21, at 2.
On October 19, 2020, Appellant’s PCRA counsel filed a motion to
withdraw and a no-merit letter. In his no-merit letter, PCRA counsel
addressed both Appellant’s claims that trial counsel was ineffective at trial and
Appellant’s request to reinstate her appeal rights. With respect to the latter,
PCRA counsel concluded that Appellant was not entitled to reinstatement of
her right to direct appeal because any appeal would lack merit and that she
therefore could not show that trial counsel’s failure to file an appeal caused
her prejudice. No-Merit Letter at 4-5.
On October 28, 2020, the trial court issued a notice pursuant to
Pa.R.Crim.P. 907 of its intent to dismiss Appellant's PCRA petition without a
hearing. Appellant filed a response to this notice requesting that her PCRA
petition not be dismissed. On November 20, 2020, the trial court entered an
order dismissing Appellant’s PCRA petition, stating that its dismissal was
based on PCRA counsel’s no-merit letter. Trial Court Order, 11/20/20. On
-3-
J-S30045-21
December 2, 2020, the trial court granted PCRA counsel’s motion to withdraw.
Trial Court Order, 12/2/20.
Appellant filed a notice of appeal from the dismissal of her PCRA petition
on March 16, 2021.3 This Court issued a rule to show cause directing Appellant
to show why the appeal should not be quashed as untimely. Appellant filed a
response to the rule to show cause, in which she asserts that she was
prevented from timely filing her appeal because “due to Covid-19 the prison
[where she is an inmate] has been on lockdown since November 2020” and
“only reopened the Law Library in March 2021” and that after the law library
reopened, inmates were “only allowed 1 hour a week in the Law Library.”
Response to Rule to Show Cause. On July 26, 2021, the Court discharged
the rule to show cause and referred this issue to the merits panel for
consideration.
Before we may consider any of the issues raised by Appellant, we must
determine whether we have jurisdiction over the appeal. Although Appellant’s
appeal is facially untimely, appellate courts may grant a party equitable relief
in the form of an appeal nunc pro tunc in extraordinary circumstances,
____________________________________________
3 Although the notice of appeal was received by the trial court on March 24,
2021, it appears that Appellant mailed it on March 16, 2021. Under the
prisoner-mailbox rule, document is considered filed on the date that the
inmate delivered it to prison authorities for mailing, regardless of when it is
received. Commonwealth v. DiClaudio, 210 A.3d 1070, 1074 (Pa. Super.
2019).
-4-
J-S30045-21
including non-negligent circumstances related to the appellant or her counsel
that prevented the appeal from being timely filed. Criss v. Wise, 781 A.2d
1156, 1159 (Pa. 2001); Cook v. Unemployment Compensation Board of
Review, 671 A.2d 1130, 1131-32 (Pa. 1996). An appeal nunc pro tunc on
these grounds is allowed where the appellant shows that (1) the appeal was
filed late as a result of non-negligent circumstances relating to the appellant
or her counsel, (2) the notice of appeal was filed promptly after the situation
preventing timely filing ended, and (3) the appellee was not prejudiced by the
delay. Criss, 781 A.2d at 1159; Cook, 671 A.2d at 1131-32;
Commonwealth v. Dumas, No. 671 WDA 2020, at 5-6 (Pa. Super. April 30,
2021) (unpublished memorandum). Non-negligent circumstances that
constitute grounds for nunc pro tunc appeal are limited to extraordinary and
compelling circumstances that prevent an appellant from timely filing the
appeal despite diligent efforts. Criss, 781 A.2d at 1160 (“The exception for
allowance of an appeal nunc pro tunc in non-negligent circumstances is meant
to apply only in unique and compelling cases in which the appellant has clearly
established that she attempted to file an appeal, but unforeseeable and
unavoidable events precluded her from actually doing so”); Cook, 671 A.2d
at 1132 (nunc pro tunc appeal allowed where hospitalization prevented filing
of timely appeal); Dumas, slip op. at 4, 6 (nunc pro tunc appeal allowed
where Covid-19 lockdown of prison prevented access to prison law library until
after the appeal period expired).
-5-
J-S30045-21
Appellant has satisfied these requirements. Appellant has asserted and
the Commonwealth does not dispute4 that the Covid-19 pandemic caused a
lockdown of the prison from November 2020 to March 2021 that prevented
her from filing a notice of appeal from the time the order was entered until
well beyond the 30-day appeal period. That constitutes extraordinary and
compelling circumstances that warrant allowing nunc pro tunc appeal.
Dumas, slip op. at 6. Her appeal, filed 16 days or less after limited access to
the prison law library was restored, was filed promptly. Compare Amicone
v. Rok, 839 A.2d 1109, 1115-16 (Pa. Super. 2003) (unreasonableness of
four-month delay precluded nunc pro tunc appeal) with Dumas, slip op. at 6
(appeal seven days after lockdown ended was sufficiently prompt to allow
nunc pro tunc appeal). The remaining requirement is also satisfied, as the
Commonwealth does not claim that it has been prejudiced by the delay in
filing the appeal. Therefore, we conclude that Appellant is entitled to nunc pro
tunc relief with respect to this appeal and proceed to review the merits of her
appeal from the dismissal of her PCRA petition.
Appellant in her brief argues both claims of trial court error and claims
that her trial counsel was in effective in several respects. Appellant’s Brief at
____________________________________________
4 The Commonwealth filed a brief in which it contends that the dismissal of
Appellant’s PCRA petition should be affirmed on the merits, but does not argue
that the appeal should be quashed as untimely.
-6-
J-S30045-21
4-19. These claims include the assertion that trial counsel failed to file a direct
appeal despite her wish to file an appeal. Id. at 5.5
Appellant’s claim that she told that trial counsel that she wanted to file
a direct appeal is supported by the record. Indeed, her request to file a direct
appeal appears in the transcript of her sentencing. N.T. Sentencing at 32.
The trial court did not find that there was any failure by Appellant to make
clear her wish to appeal or that she ever withdrew her expressed desire to
appeal. Rather, the sole basis on which PCRA counsel and the trial court
____________________________________________
5 The trial court on March 31, 2021, issued an order directing Appellant “to
file of record and serve on the Court a concise statement of the matters
complained of on appeal no later than Monday, April 19, 2021.” Trial Court
Order, 3/31/21. Appellant’s statement of issues filed in response to this order
only referenced substantive issues that would be the subject of a direct appeal
and claims of ineffective assistance of counsel at trial and did not specifically
assert a claim of denial of her direct appeal rights. Appellant’s Concise
Statement of Reasons Complained of on Appeal. The trial court’s order,
however, did not comply with Pa.R.A.P. 1925(b), as it contained only the
language quoted above directing Appellant to file and serve a statement and
did not advise Appellant that issues not included in her concise statement
would be waived. See Pa.R.A.P. 1925(b)(3)(iv) (“The judge’s order directing
the filing and service of a Statement shall specify: … that any issue not
properly included in the Statement timely filed and served pursuant to
subdivision (b) shall be deemed waived”). Therefore, the incompleteness of
Appellant’s concise statement does not constitute a waiver of her right to seek
relief on the issue denial of her direct appeal rights in this appeal. Rahn v.
Consolidated Rail Corp., 254 A.3d 738, 745-47 (Pa. Super. 2021) (where
trial court’s order is inconsistent with the requirements of Rule 1925(b)(3) in
a respect related to the appellant’s noncompliance, waiver does not apply).
Moreover, our appellate review is not impaired by the incompleteness of
Appellant’s concise statement, as the trial court addressed the issue of the
denial of Appellant’s direct appeal rights. Trial Court Order, 11/20/20; Trial
Court Opinion at 2.
-7-
J-S30045-21
concluded that the denial of Appellant’s direct appeal rights could be excused
was that any appeal would not be meritorious. No-Merit Letter at 4-5; Trial
Court Order, 11/20/20 (expressly basing its dismissal of Appellant’s PCRA on
PCRA counsel’s no-merit letter).
That is not a valid ground for denying a PCRA request for restoration of
direct appeal rights. A defendant has an absolute right to appeal, even if
counsel believes that the appeal would be frivolous. Commonwealth v.
Wilkerson, 416 A.2d 477, 479 (Pa. 1980); Commonwealth v. Bronaugh,
670 A.2d 147, 149 (Pa. Super. 1995). If counsel believes that the appeal is
frivolous and the defendant nonetheless wishes to appeal, counsel is required
to file the appeal and file an Anders6 brief and petition the court for leave to
withdraw. Wilkerson, 416 A.2d at 479; Bronaugh, 670 A.2d at 149. Where
counsel fails
to file a requested direct appeal, the conduct of counsel falls
beneath the range of competence demanded of attorneys in
criminal cases, denies the accused the assistance of counsel
guaranteed by the Sixth Amendment to the United States
Constitution and Article I, Section 9 of the Pennsylvania
Constitution, as well as the right to direct appeal under Article V,
Section 9, and constitutes prejudice for purposes of [the PCRA].
Therefore, in such circumstances, and where the remaining
requirements of the PCRA are satisfied, the petitioner is not
required to establish his innocence or demonstrate the merits of
the issue or issues which would have been raised on appeal.
____________________________________________
6 Anders v. California, 386 U.S. 738 (1967).
-8-
J-S30045-21
Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999) (footnote
omitted).
The remedy for deprivation of appellate rights is an order restoring the
defendant’s appeal rights. Lantzy, 736 A.2d at 572-73; Bronaugh, 670 A.2d
at 149; Commonwealth v. Ciotto, 555 A.2d 930, 931 (Pa. Super. 1989).
Accordingly, where the defendant has filed a timely PCRA petition requesting
reinstatement of her direct appeal rights and it is shown that the defendant
told counsel that she wished to appeal and that counsel failed to file a timely
appeal, the PCRA court is required to grant reinstatement of the defendant’s
right to file a direct appeal and may not address any of the other issues raised
in the PCRA petition. Bronaugh, 670 A.2d at 149; Commonwealth v.
Taylor, No. 1091 WDA 2020, at 7-8 (Pa. Super. July 8, 2021) (unpublished
memorandum).
Because the record here establishes that Appellant requested to file a
direct appeal and was deprived of her right to a direct appeal, the trial court
was required to grant her the relief of restoring her direct appeal rights and it
erred in considering the merits of her substantive claims of error and other
claims of ineffective assistance of counsel and in dismissing her PCRA petition.
Accordingly, we reverse the trial court’s order and remand this case with
instructions to enter an order granting Appellant leave to file a direct appeal
from her judgment of sentence nunc pro tunc and appointing counsel to
represent her in that appeal.
-9-
J-S30045-21
Order reversed. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/2022
- 10 -