Com. v. Golden, J. ( 2016 )


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  • J-S02026-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    JAMES GOLDEN
    Appellant                No. 143 EDA 2015
    Appeal from the PCRA Order September 18, 2014
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0707601-2000
    BEFORE: SHOGAN, J., LAZARUS, J., and STABILE, J.
    MEMORANDUM BY LAZARUS, J.:                        FILED JANUARY 20, 2016
    James Golden appeals from the trial court’s order denying his petition
    filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
    9546. After careful review, we affirm.
    On July 23, 2009, Golden pled guilty to escape1 and was sentenced to
    3-23 months’ incarceration, plus 4 years of probation with immediate parole.
    On the same day, the court found Golden in technical violation of his
    probation on a sentence imposed in 2001 for theft by receiving stolen
    property (RSP)2 and alteration/destruction of VIN.3     As a result, the court
    ____________________________________________
    1
    18 Pa.C.S. § 5121.
    2
    18 Pa.C.S. § 3925(A).
    3
    18 Pa.C.S. § 1.4(A).
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    terminated his parole and revoked his probation on those sentences and
    ordered him to serve an aggregate sentence of 7-14 years’ incarceration. At
    his violation of probation (VOP) hearing, Golden was represented by Mary
    Maran, Esquire, who appeared on behalf of Golden’s privately-retained trial
    attorney, Jack McMahon, Esquire (Attorney McMahon/counsel).4
    On July 29, 2009, Attorney McMahon filed a motion for reconsideration
    of Golden’s VOP sentence. The motion was denied without a hearing. On
    August 14, 2009, counsel filed a notice of appeal from Golden’s VOP
    sentence. However, on September 18, 2009, counsel filed a petition, in the
    Superior Court, to withdraw as appellate counsel. In his petition, Attorney
    McMahon stated that he was privately hired to represent Golden in the trial
    court only, that he believes Golden is indigent and may qualify for court-
    appointed counsel, and that he has informed Golden of his intent to
    withdraw as his counsel “due to [Golden’s] failure to pay for counsel on
    appeal.” Petition to Withdraw as Counsel, 9/18/09.
    On October 8, 2009, this Court granted counsel’s motion and directed
    the trial court to determine Golden’s eligibility for court-appointed counsel
    within 60 days. On October 17, 2009, Golden moved the court to appoint an
    attorney to represent him on appeal due to counsel’s withdrawal.      In his
    motion, Golden stated that he was not presently employed, that he had not
    ____________________________________________
    4
    Golden was found to have violated his probation on two prior occasions, in
    2005 and 2007.
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    received any income in the past twelve months, and that he did not have
    any checking or savings accounts.    On December 11, 2009, the trial court
    held a hearing and determined that Golden was not eligible for either court-
    appointed counsel or an attorney from the public defender’s office.      The
    court ordered Golden to notify the Superior Court, within 20 days of the date
    of its decision as to whether he intended to retain new counsel or represent
    himself on his pending appeal.
    On December 24, 2009, Golden filed a pro se motion for appointment
    of counsel which the trial court denied, without prejudice, to apply to the
    trial court for in forma pauperis status and/or appointment of counsel. The
    court also ordered that Golden either proceed pro se unless or until he
    retained private counsel or the trial court appointed counsel to represent
    him.   On February 16, 2010, the court ordered that Golden, pro se, file a
    Pa.R.A.P. 1925(b) statement of errors complained of on appeal no later than
    March 19, 2010. Golden filed a motion for an extension within which to file
    his Rule 1925(b) statement which the court granted. On March 11, 2010,
    Golden filed his pro se Rule 1925(b) statement raising the issue that
    Attorney McMahon did not represent him at his VOP hearing, but, rather had
    another attorney who was unfamiliar with the case advocate on Golden’s
    behalf.   Golden alleged that VOP counsel “failed to argue any and all
    elements during [his] VOP [hearing] . . . and failed to object to any and all
    remarks made against appellant by the District Attorney[.]” Defendant’s Pro
    Se Rule 1925(b) Statement, 3/11/10, at 2. The trial court authored a Rule
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    1925(a) opinion on June 30, 2010. When Golden failed to file an appellate
    brief, this Court quashed his appeal.            See Commonwealth v. Golden,
    2391 EDA 2009 (September 30, 2010) (unpublished memorandum).
    On July 21, 2011, Golden filed the instant, timely pro se PCRA petition
    alleging that Attorney McMahon was ineffective for failing to file an appellate
    brief to the Superior Court in his direct appeal and that he was sentenced to
    an illegal sentence for RSP.         PCRA Counsel was appointed5 and filed an
    amended petition on his behalf claiming that Golden was abandoned by
    counsel on appeal and that the court failed to appoint him counsel. PCRA
    counsel requested that Golden’s appeal rights either be reinstated nunc pro
    tunc or that the court remand this case to the trial court for an evidentiary
    hearing under the PCRA.         On July 11, 2011, the court issued notice of its
    intent to dismiss Golden’s petition pursuant to Pa.R.Crim.P. 907.       On July
    18, 2014, Golden filed a pro se response to the Rule 907 notice.             On
    September 18, 2014, the PCRA court dismissed Golden’s petition.             This
    appeal follows.
    On appeal, Golden presents the following issues for our consideration:
    (1)   Whether the judge was in error in denying the Appellant’s
    PCRA petition without an evidentiary hearing on the issues
    raised in the amended PCRA petition regarding trial
    counsel’s ineffectiveness.
    ____________________________________________
    5
    See Pa.R.Crim.P. 904.
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    (2)     Whether the judge was in error in not granting relief on
    the PCRA petition alleging counsel was ineffective.6
    The standard of review of an order denying a PCRA petition is whether
    that determination is supported by the evidence of record and is free of legal
    error.     The PCRA court’s findings will not be disturbed unless there is no
    support for the findings in the certified record.                 Commonwealth v.
    Johnston, 
    42 A.3d 1120
    , 1126 (Pa. Super. 2012). Moreover, a court may
    dispose of a PCRA petition without a hearing “when the petition and answer
    show that there is no genuine issue concerning any material fact and that
    the defendant is entitled to relief as a matter of law.” Pa.R.Crim.P. 907(2).
    Essentially, Golden claims that counsel was ineffective for abandoning
    him on appeal where “prior counsel had no reasonable basis for failing to
    take the necessary actions to protect [him], and [he] was prejudiced as a
    result.”       Appellant’s Brief, at 17.    Specifically, Golden takes issue with the
    fact that the PCRA court dismissed his petition, based on this ineffectiveness
    claim, without holding a hearing.
    We first note that with respect to claims of ineffective assistance of
    counsel,        we   begin   with   the    presumption   that    counsel    is   effective.
    Commonwealth v. Spotz, 
    47 A.3d 63
    , 76 (Pa. 2012).                       To prevail on an
    ineffectiveness        claim,   a   petitioner    must   plead    and      prove,   by   a
    ____________________________________________
    6
    We have consolidated these two issues on appeal as they both involve the
    same underlying claim regarding counsel’s effectiveness and whether the
    claim warrants a PCRA hearing.
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    preponderance of the evidence, three elements: (1) the underlying legal
    claim has arguable merit; (2) counsel had no reasonable basis for his or her
    action or inaction; and (3) the petitioner suffered prejudice because of
    counsel's action or inaction. 
    Id.
     (citation omitted).
    Pursuant to Pa.R.Crim.P. 120(B):
    (1)    Counsel for a defendant may not withdraw his or her
    appearance except by leave of court.
    (2)    A motion to withdraw shall be:
    (a)    filed with the clerk of courts, and a copy concurrently
    served on the attorney for the Commonwealth and
    the defendant; or
    (b)    made orally on the record in open court in the
    presence of the defendant.
    (3)    Upon granting leave to withdraw, the court shall determine
    whether new counsel is entering an appearance, new
    counsel is being appointed to represent the defendant, or
    the defendant is proceeding without counsel.
    Pa.R.Crim.P. 120(B).       Moreover, counsel’s obligation to represent the
    defendant, whether as retained or appointed counsel, remains until leave to
    withdraw is granted by the court. Commonwealth v. Librizzi, 
    810 A.2d 692
     (Pa. Super. 2002).
    Under the Rules of Professional Conduct, “a lawyer may withdraw from
    representing a client” if “the client fails substantially to fulfill an obligation to
    the lawyer regarding the lawyer’s services and has been given reasonable
    warning that the lawyer will withdraw unless the obligation is fulfilled.”
    Pa.R.P.C. 1.16(b)(5). See Explanatory Comment [8] to Rule 1.16 (stating
    that subsection (b)(5) applies in situations where client does not abide by
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    agreement concerning fees).     Moreover, in Commonwealth v. Ford, 
    715 A.2d 1141
    , 1145 (Pa. Super. 1998), our Court stated:
    There is no bright line rule governing when a trial court abuses
    its discretion in ruling on a petition to withdraw as counsel. See
    Commonwealth v. Sweeney, [] 
    533 A.2d 473
    , 481 (Pa. Super.
    1987). Rather, a court must weigh the interests of the client in a
    fair adjudication, the interests of the Commonwealth in efficient
    administration of justice, and the interests of the attorney
    seeking withdrawal. See 
    id.
     Therefore, “resolution of the
    problem turns upon a case by case analysis with particular
    attention to the reasons given by the trial court at the time the
    request for withdrawal is denied.” 
    Id.
    It is certainly true that counsel may seek to withdraw from
    representation for a variety of reasons, from ethical to financial.
    See Commonwealth v. Keys [] 
    580 A.2d 386
    , 387 (Pa. Super.
    1990). This is not to say, however, that every time withdrawal is
    permissible from the attorney’s perspective that the Court must
    allow it. As indicated by the Sweeney standard, the interests of
    the Commonwealth and the client must be considered before
    withdrawal is proper.
    Id. at 1145. See also Commonwealth v. Roman, 
    549 A.2d 1320
    , 1321
    (Pa. Super. 1988) (“There are no prophylactic rules which exist when
    determining whether a denial or withdrawal amounts to an abuse of
    discretion[;] [e]ach case must be determined by balancing the competing
    interests giving due regard to the facts presented.”).
    Critically and necessarily, in the instant case Attorney McMahon filed a
    formal motion to withdraw his appearance with this Court and also notified
    Golden of his intent to withdraw. Ford, supra (before attorney is permitted
    to withdraw trial court must be served notice of intention to withdraw). See
    Commonwealth        v.   Worthy,   
    446 A.2d 1327
       (Pa.   Super.   1982);
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    Commonwealth v. Liska, 
    380 A.2d 1303
     (Pa. Super. 1977). McMahon was
    granted leave to withdraw as counsel of record, Pa.R.A.P. 120(B)(1), but
    only after he ensured Golden’s appellate rights were preserved.
    First, and foremost, we note that in accordance with Golden’s express
    wishes, counsel preserved Golden’s appeal rights by filing a timely notice of
    appeal on his behalf. Compare Keys, supra (where counsel did not seek
    allowance by court to formally withdraw prior to expiration of appeal period
    and where appellant’s pro se attempt to perfect direct appeal resulted in
    quashal of appeal, procedural default resulted in appellant’s appeal rights to
    be   reinstated)   with   Sweeney,     supra       (court   noted   that   counsel’s
    preparation of notice of appeal for defendant minimized any prejudice
    resulting from his subsequent withdrawal). See Pa.R.P.C. 1.16 (lawyer may
    withdraw from representing client if withdrawal can be accomplished without
    material adverse effect on interests of client).
    Moreover, on December 11, 2009, the trial court held a hearing on the
    issue as to whether Golden was entitled to court-appointed counsel. At the
    hearing, Golden testified that his family had helped him pay counsel’s fees.
    N.T. Hearing, 12/11/09, at 9. However, Golden testified that neither he nor
    his family had money for a lawyer to represent him on appeal from his
    probation violation sentence. Id. at 8.
    Instantly, we conclude that the trial court’s decision is supported in the
    record. Where financial concerns legitimately forced privately-retained trial
    counsel to withdraw, see Sweeney, supra, and where counsel protected
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    Golden’s appellate rights and informed him in advance of his intent to
    withdraw, we do not find the court’s order granting counsel’s motion to
    withdraw was an abuse of discretion.             Ford, 
    supra;
     Commonwealth v.
    Scheps, 
    523 A.2d 363
     (Pa. Super 1987). Having determined that counsel
    did not abandon Golden on appeal, the underlying claim of ineffectiveness is
    meritless. Spotz, supra. Accordingly, the court properly denied Golden’s
    petition without a hearing. Pa.R.Crim.P. 907(2).
    Order affirmed.7
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 1/20/2016
    ____________________________________________
    7
    We also note that Golden’s October 17, 2009 motion asking the court to
    appoint an attorney to represent him on appeal due to counsel’s withdrawal
    could be construed as an implicit discharge of Attorney McMahon from
    further representation. See Sweeney, supra at 479 (where defendant
    could no longer afford privately retained counsel for appeal and where
    defendant requested the trial court appoint him appellate counsel knowing
    that counsel was aware that defendant’s family could no longer retain
    counsel, such actions amounted to an implied acquiescence of counsel’s
    withdrawal).
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Document Info

Docket Number: 143 EDA 2015

Filed Date: 1/20/2016

Precedential Status: Precedential

Modified Date: 1/20/2016