Com. v. Wallery, R. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RUSSELL A. WALLERY,
Appellant No. 3243 EDA 2014
Appeal from the PCRA Order of October 22, 2014
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0001596-2009
BEFORE: BENDER, P.J.E., OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 02, 2016
Appellant, Russell A. Wallery, appeals from the order entered on
October 22, 2014, dismissing his first petition pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court briefly summarized the facts and procedural history of
this case as follows:
On July 16, 2010, [Appellant] was convicted by a jury of his
peers [of] one count of rape of a child (18 Pa.C.S.A.
§ 3121(c)); one count of involuntary deviate sexual
intercourse (18 Pa.C.S.A. § 2123(a)(7)); one count of
indecent assault (18 Pa.C.S.A. § 3126(a)(7)); and one
count of corruption of minors (18 Pa.C.S.A. § 6301(a)(1)),
in connection with allegations of sexual contact with the
minor daughter of his live-in companion. Subsequent to the
verdict, [Appellant] was evaluated by a member of the
Sexual Offender Assessment Board, and on October 14,
2010, a hearing was held … [and, upon] consideration of
the evidence presented, the [trial] court adjudged
[Appellant] a sexually violent predator. Thereafter, he was
*Retired Senior Judge assigned to the Superior Court.
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sentenced for his crimes to an aggregate term of
twenty-seven (27) to fifty-four (54) years of imprisonment.
[Appellant] filed timely post-sentence motions on October
22, 2010. The [trial] court entered an order denying the
motions on February 21, 2011. On March 18, 2011,
[Appellant] appealed [his judgment of sentence]. [We]
issued a ruling on June 19, 2012, [affirming Appellant’s]
convictions on all charges[.] However, [we] vacated and
remanded the sentence of twelve (12) to twenty-four (24)
years [of imprisonment] on the charge of involuntary
deviate sexual intercourse (“IDSI”) for the purpose of
allowing [the trial] court to place its reasons for the
aggravated sentence on the record.
The [trial] court held a resentencing hearing as to the IDSI
charge on August 17, 2012 at which time the [trial] court
imposed the same sentence of twelve (12) to twenty-four
(24) years [of imprisonment] upon [Appellant], stating its
reasons on the record. On August 27, 2012, [Appellant]
filed [for reconsideration], which [the trial] court denied by
an order entered on October 5, 2012.
On August 14, 2013, [Appellant] filed a pro se petition for
[PCRA relief]. Upon receipt of the petition, the [PCRA] court
appointed counsel to represent [Appellant]. Attendant with
that appointment, counsel sought and obtained certain
records in furtherance of [Appellant’s] claims, which
required that the hearing on [Appellant’s] petition be
continued several times. A hearing was ultimately held on
June 24, 2014. Contemporaneously with the date of the
hearing, [Appellant] filed a supplemental PCRA petition
through counsel for the purpose of more fully setting forth
the issues raised during the hearing. On October 22, 2014,
the [PCRA] court denied [Appellant’s] PCRA petition[.]
PCRA Court Opinion, 1/13/2015, at 1-2 (superfluous capitalization omitted).
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Thereafter, on November 14, 2014, Appellant filed a pro se notice of
appeal, despite still being represented by counsel.1 The trial court docket
indicates that the clerk of courts forwarded a copy of the pro se notice of
appeal to Appellant’s counsel of record.2 Appointed PCRA counsel took no
further action. Subsequently, on November 20, 2014, the PCRA court
entered an order pursuant to Pa.R.A.P. 1925(b) directing Appellant to file a
concise statement of errors complained of on appeal within 21 days. The
docket reflects that the PCRA court sent the Rule 1925(b) order directly to
Appellant, but not to appointed counsel. Appellant then filed a pro se Rule
1925(b) statement that was timely under the prisoner mailbox rule. 3 The
docket reflects that appointed counsel did not receive a copy of the pro se
Rule 1925(b) statement. The PCRA court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on January 13, 2015.
____________________________________________
1
There is no indication that appointed PCRA counsel ever sought to
withdraw.
2
As discussed at length infra, our Prothonotary entered a per curiam order
directing the PCRA court to explain Appellant’s representation status,
because while Appellant proceeded pro se, counsel of record had not been
permitted to withdraw. That per curiam order states, “there is no indication
on the docket that the PCRA court forwarded Appellant’s pro se notice of
appeal” to counsel of record. See Order, 6/23/2015, at 1 (unpaginated).
However, upon closer inspection of the PCRA court’s docket, there is a
notation indicating that notice of appeal was sent to counsel. See
Northhampton County Criminal Docket #CP-48-CR-0001596-2009, at 23.
3
“Under the prisoner mailbox rule, we deem a pro se document filed on
the date it is placed in the hands of prison authorities for mailing.” See
Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011).
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On January 20, 2015, our Prothonotary issued a briefing schedule. On
March 2, 2015, April 16, 2015, and June 15, 2015, Appellant submitted pro
se requests for extensions to file his appellate brief. We granted the first
two extension requests. With regard to the third request, Appellant averred
he may be represented by counsel. Accordingly, our Prothonotary entered a
per curiam order on June 23, 2015, directing the PCRA court to explain the
status of Appellant’s representation within 14 days. In that per curiam
order, this Court recognized that PCRA counsel was listed as Appellant’s
counsel of record and there was no indication that he received permission to
withdraw. We further noted, as explained above, that the PCRA court
directed its Pa.R.A.P. 1925(b) statement to Appellant and Appellant
subsequently filed a pro se Rule 1925(b) statement. Further, while the
PCRA court’s January 2015 Rule 1925(a) opinion states that Appellant
sought new appellate counsel and that the court accepted the request and
entered a separate order of court making a new appointment, no such
documentation appears in the certified record. Thus, we ordered the PCRA
court to notify our Prothonotary, in writing, of Appellant’s representation
status within 14 days. Thereafter, pursuant to the order of our
Prothonotary, on June 26, 2015, the PCRA court entered an order removing
prior PCRA counsel and appointing Tyree Blair, Esquire, as new counsel for
Appellant. That order was filed with this Court on July 2, 2015.
Subsequently, on November 25, 2015, Attorney Blair filed a brief on behalf
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of Appellant with this Court, presenting issues related solely to original PCRA
counsel’s alleged ineffectiveness.
On March 3, 2016, this Court filed a memorandum opinion wherein we
concluded that the PCRA court erred by accepting Appellant’s pro se Rule
1925(b) statement while he was still represented by counsel and then
issuing a subsequent Rule 1925(a) opinion based upon the pro se filing.
Because Appellant was represented by counsel on appeal, his pro se Rule
1925(b) statement was a legal nullity. Hence, we directed newly
appointed counsel, Tyree Blair, Esquire, to file a Rule 1925(b) statement
with the PCRA court and for the PCRA court to issue a Rule 1925(a) opinion
thereafter. Attorney Blair and the trial court have complied. Subsequently,
our Prothonotary established a new briefing schedule, Attorney Blair and the
Commonwealth have filed new briefs, and the record has been returned to
this Court.
On appeal, Appellant presents the following issues for our review:
1. Whether [prior] PCRA [c]ounsel was ineffective, when
counsel failed to raise the matter of newly discovered
evidence with [a] Children and Youth [t]ranscript[?]
2. Whether [prior] PCRA [c]ounsel was ineffective, when
counsel failed to raise the matter of newly discovered
evidence in a Northampton County Court [o]pinion which
determined polygrapher (Charles Patton) not to be
credible[?]
Appellant’s Brief at 3.
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In both issues, Appellant claims that prior PCRA counsel was
ineffective. However, “claims of PCRA counsel's ineffectiveness may not be
raised for the first time on appeal.” Commonwealth v. Henkel, 90 A.3d
16, 20 (Pa. Super. 2014) (en banc); see also Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal.”). Instead, “issues of PCRA counsel effectiveness must be raised
in a serial PCRA petition[.]” Commonwealth v. Ford, 44 A.3d 1190, 1200
(Pa. Super. 2012). We simply may not entertain claims that were not first
presented to the PCRA court:
[Our Supreme Court has] stressed that a claim not raised in
a PCRA petition cannot be raised for the first time on
appeal. We have reasoned that permitting a PCRA petitioner
to append new claims to the appeal already on review would
wrongly subvert the time limitation and serial petition
restrictions of the PCRA. The proper vehicle for raising [a
later] claim is thus not [on] appeal, but rather in a
subsequent PCRA petition.
Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (internal
citations and original brackets omitted). Accordingly, we are constrained to
find the issues presently before us have been waived.
Order affirmed.
Judge Platt joins this memorandum.
President Judge Emeritus Bender files a Concurring Memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/2/2016
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