Com. v. Jordan, V. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VINCENT JORDAN :
:
Appellant : No. 670 WDA 2017
Appeal from the PCRA Order April 18, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0002061-2014
BEFORE: BOWES, J., NICHOLS, J., and STRASSBURGER*, J.
MEMORANDUM BY BOWES, J.: FILED JULY 10, 2018
Vincent Jordan appeals from the order dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). We remand.
On December 1, 2014, Appellant entered a negotiated guilty plea to
three counts of aggravated assault, and one count each of recklessly
endangering another person and possession of firearm prohibited. Pursuant
to the plea agreement, the trial court imposed an aggregate sentence of seven
and one-half to fifteen years incarceration. Appellant did not timely file post-
sentence motions or a direct appeal.
On October 29, 2015, Appellant filed a timely pro se PCRA petition. The
PCRA court appointed counsel, who filed a Turner/Finley1 no-merit letter and
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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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* Retired Senior Judge assigned to the Superior Court.
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a petition to withdraw as counsel. On February 21, 2017, the PCRA court
issued notice of its intent to dismiss the petition without a hearing pursuant
to Pa.R.Crim.P. 907, and on April 18, 2017, entered an order dismissing the
petition. Appellant filed a timely pro se notice of appeal. The PCRA court
ordered Appellant to file a concise statement of matters complained of on
appeal pursuant to Pa.R.A.P. 1925(b), and granted Appellant’s multiple pro se
requests for extension of time. Appellant did not comply with that directive.
In its Pa.R.A.P. 1925(a) opinion, the PCRA court suggests that the instant
appeal should be dismissed based on Appellant’s failure to file a concise
statement.
Ordinarily, the failure to file a concise statement results in waiver of the
issues to be appealed. See Pa.R.A.P. 1925(b)(4)(vii); see also
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). However, where
the PCRA court’s order directing an appellant to file a concise statement does
not comply with the dictates of Rule 1925(b)(3),2 waiver under subsection
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2 Pursuant to Rule 1925(b)(3), if the trial court elects to order an appellant to
file a concise statement of errors complained of on appeal, the order “shall
specify:”
(i) the number of days after the date of entry of the judge’s order
within which the appellant must file and serve the Statement;
(ii) that the Statement shall be filed of record;
(iii) that the Statement shall be served on the judge pursuant to
paragraph (b)(1);
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(b)(4)(vii) is inappropriate. See Berg v. Nationwide Mut. Ins. Co., 6 A.3d
1002, 1011 (Pa. 2010) (plurality). Here, the PCRA court’s Pa.R.A.P. 1925(b)
order did not comply with the requirements of subsection (b)(3) insofar as it
did not direct Appellant to serve a separate copy of the statement on the trial
judge, or advise Appellant that any issue not properly included in the
statement timely filed and served pursuant to subdivision (b) shall be deemed
waived. Accordingly, we may not find waiver of Appellant’s claims pursuant
to subsection (b)(4)(vii). See Berg, supra.
However, the record does not explicitly indicate that PCRA counsel was
permitted to withdraw, and counsel has not entered an appearance or filed a
Turner/Finley no-merit letter on appeal. Accordingly, we remand for a
determination as to counsel’s status. Appellant is entitled to counsel on a
first-time PCRA petition, including any appeal. See Pa.R.Crim.P. 904(F)(2);
see also Commonwealth v. Figueroa, 29 A.3d 1177 (Pa.Super. 2011);
Commonwealth v. Robinson, 970 A.2d 455 (Pa.Super. 2009) (en banc). Of
course, if counsel was permitted to withdraw based on the filing of
Turner/Finley no-merit letter, then there is no requirement that new counsel
be appointed. See Commonwealth v. Maple, 559 A.2d 953 (Pa.Super.
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(iv) that any issue not properly included in the Statement timely
filed and served pursuant to subdivision (b) shall be deemed
waived.
Pa.R.A.P. 1925(b)(3) (emphasis added).
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1989). On the other hand, the failure of counsel to submit a brief on appeal
where counsel has not been allowed to withdraw is considered abandonment
of counsel and per se ineffectiveness. See Commonwealth v. Bennett, 930
A.2d 1264 (Pa. 2007).
The record here is unclear whether counsel was permitted to withdraw
as the orders issued by the PCRA court do not expressly state that counsel
was allowed to withdraw from the case. However, the PCRA court did agree
with counsel’s Turner/Finley no-merit letter, and thereafter issued its
concise statement order directly to Appellant, and granted multiple pro se
petitions by Appellant for extensions of time. In Turner, supra at 928-929,
our Supreme Court stated: “When, in the exercise of his professional
judgment, counsel determines that the issues raised under the PCHA are
meritless, and when the PCHA court concurs, counsel will be permitted to
withdraw[.]”3 The record clearly evinces that the PCRA court concurred with
counsel’s assessment; thus, it would appear to be a mere formality that the
court did not include in either its final order or notice of intent to dismiss that
it granted counsel’s request to withdraw.
Accordingly, we instruct the PCRA court to ascertain the status of
counsel within thirty days of the filing of this memorandum. If counsel was
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3The Turner Court referenced the Post Conviction Hearing Act, which was the
predecessor to the PCRA. See Commonwealth v. Dandar, 454 A.2d 641
(Pa.Super. 1983).
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permitted to withdraw, then we shall proceed to address Appellant’s issues.
However, if counsel was not authorized to withdraw, she may still petition the
PCRA court to withdraw. See Commonwealth v. Quail, 729 A.2d 571, 573
n.2 (Pa.Super. 1999). If granted, this withdrawal will not entitle Appellant to
new counsel on appeal. See Maple, supra. If counsel was not allowed to
withdraw, counsel must submit either a brief or Turner/Finley no-merit
letter with this Court within sixty days of the determination. In this latter
event, the Commonwealth will be permitted thirty days to file a responsive
brief.
Case remanded. Panel jurisdiction retained.
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