Com. v. Shields, A. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANTHONY DWAYNE SHIELDS :
:
Appellant : No. 143 WDA 2019
Appeal from the Order Entered May 30, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002210-2015
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 14, 2019
Anthony Dwayne Shields (Appellant) appeals from the order dismissing
his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. After careful review, we vacate and remand for
further proceedings.
On September 24, 2015, Appellant was charged with three counts each
of possession of a controlled substance and contraband, and one count of
possession of marijuana.1 Appellant’s first trial resulted in a mistrial after the
jury could not reach a verdict. Appellant was retried and convicted of the
aforementioned offenses. The trial court sentenced Appellant to 99 to 198
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 5123(a), and 35 P.S. § 780-
113(a)(31).
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months of incarceration. Appellant filed a timely notice of appeal, and this
Court affirmed his judgment of sentence. Commonwealth v. Shields, 837
WDA 2016 (Pa. Super. Apr. 10, 2017) (unpublished memorandum).
On November 8, 2017, Appellant filed a pro se PCRA petition. The PCRA
court appointed William J. Hathaway, Esquire, as counsel for Appellant, and
on January 16, 2018, Attorney Hathaway filed a “Supplement to Motion for
Post Conviction Collateral Relief.” On April 27, 2018, the PCRA court issued
notice of its intent to dismiss Appellant’s petition without a hearing pursuant
to Rule of Criminal Procedure 907. Attorney Hathaway did not file a response
to the court’s notice, and on May 30, 2018, the PCRA issued an order
dismissing Appellant’s petition.2
On August 3, 2018, Appellant filed a pro se notice of appeal from the
order dismissing his PCRA petition. On August 13, 2018, the PCRA court
ordered Appellant to file a statement of matters complained of on appeal
pursuant to Pa.R.A.P. 1925(b) within 21 days. Appellant filed a pro se Rule
1925(b) statement on August 29, 2018, and the PCRA court issued its Rule
1925(a) opinion on September 4, 2018. On November 20, 2018, this Court
sua sponte quashed Appellant’s appeal as untimely.3
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2On July 1, 2018, Appellant mailed a letter to Attorney Hathaway requesting
verification that Attorney Hathaway filed a response to the PCRA court’s Rule
907 notice. Correspondence, 11/1/18. The record reflects, and Attorney
Hathaway concedes, that no response was ever filed. Id.
3 It appears there may have been a delay in docketing this order in the trial
court as the order does not appear on the docket until January 7, 2019.
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On December 19, 2018, Appellant filed a second pro se PCRA petition,
alleging ineffective assistance of PCRA counsel for failing to file a notice of
appeal from the denial of Appellant’s first PCRA petition. On December 27,
2018, the PCRA court granted Appellant’s PCRA petition and reinstated his
collateral appeal rights nunc pro tunc. Attorney Hathaway4 filed a timely
notice of appeal on January 25, 2019.
On February 13, 2019, Appellant, relevant to this appeal, filed the
following pro se motion with the Superior Court:
President Judge[:]
Sir, I filed my PCRA. Attorney Hathaway was appointed, [a]gain.
He, Mr. Hathaway[,] abandoned me on my first PCRA leaving me,
a lay man, no choice but to file an [sic] hybrid appeal to this
Superior Court Doc # 1125 WDA 2018.
My concern is that Att. Hathaway never meaningfully
Amended my PCRA for the [PCRA court] to reach the merits
of my claims. Could your Court please remand my case back
down to the Erie County for further proceedings so I can
experience [e]ffective assistance of counsel[?] I have merit, but
I am a lay man who is learning as [I] go and that is not enough.
Please and Thank you.
[Appellant]
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4 As noted, Attorney Hathaway was appointed to represent Appellant after
Appellant filed his first pro se PCRA petition. Attorney Hathaway failed to file
a notice of appeal on Appellant’s behalf, and consequently, the court
reinstated Appellant’s appeal rights nunc pro tunc. After Appellant filed his
second pro se PCRA petition, the PCRA court reappointed Attorney Hathaway
to file a notice of appeal nunc pro tunc.
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Application for Remand, 2/13/19 (emphasis added).
On February 19, 2019, this Court entered an order remanding the case
for a Grazier5 hearing. On March 25, 2019, the PCRA court held a Grazier
hearing, “during which Appellant stated he did not wish to proceed pro se and
he wished to continue to be represented by counsel.” PCRA Court Opinion,
6/7/19, at 2. Accordingly, the PCRA court ordered Attorney Hathaway’s
continued representation of Appellant.
On August 22, 2019, Attorney Hathaway filed an appellate brief on
behalf of Appellant, identifying the following six issues for our review:
1. Whether the trial [c]ourt denied the Petitioner his constitutional
right to represent himself without legal basis or justification?
2. Whether counsel was ineffective in failing to strike or request
the removal of a juror [Karen Beebe] who engaged in
communication with a prosecution witness?
3. Whether the trial was tainted given this juror misconduct?
4. Whether counsel was ineffective in failing to object to or move
for a mistrial based upon the Commonwealth’s prejudicial
reference to the Defendant’s parole and incarcerated status?
5. Whether counsel was ineffective in failing to object to the
Commonwealth trying Defendant for several unrelated offenses
at trial?
6. Whether counsel was ineffective in failing to object to or move
for a mistrial based upon the Commonwealth’s expression of
his personal opinion in regard to the Defendant’s guilty and
credibility?
Appellant’s Brief at 2.
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5 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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We review the denial of a PCRA petition to determine whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).
Petitioners have a general rule-based right to the assistance of counsel
for their first PCRA petition. Pa.R.Crim.P. 904(C); Commonwealth v.
Robinson, 970 A.2d 455, 457 (Pa. Super. 2009) (en banc) (stating, “a
criminal defendant has a right to representation of counsel for purposes of
litigating a first PCRA petition through the entire appellate process [ ]”). “The
indigent petitioner’s right to counsel must be honored regardless of the merits
of his underlying claims, even where those claims were previously addressed
on direct appeal, so long as the petition in question is his first.”
Commonwealth v. Powell, 787 A.2d 1017, 1019 (Pa. Super. 2001).
“Moreover, once counsel is appointed, he [or she] must take affirmative steps
to discharge his [or her] duties.” Id.When appointed, counsel’s duty is to either (1) amend the petitioner’s
pro se petition and present the petitioner’s claims in acceptable legal terms,
or (2) certify that the claims lack merit by complying with the mandates of
Turner/Finley.6 “If appointed counsel fails to take either of these steps, our
courts have not hesitated to find that the petition was effectively
uncounseled.” Powell, 787 A.2d at 1019.
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6Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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The right to counsel on an indigent petitioner’s first PCRA petition is not
limited to the mere naming of an attorney. Commonwealth v. Hampton,
718 A.2d 1250 (Pa. Super. 1998). To have any meaning, the rule also requires
appointed counsel to provide meaningful representation. Id. This Court has
stated:
“[W]hen appointed counsel fails to amend an inarticulately drafted
pro se [post-conviction] petition, or fails otherwise to
participate meaningfully, this [C]ourt will conclude that the
proceedings were, for all practical purposes, uncounseled and in
violation of the representation requirement. . . .”
[Commonwealth v.] Ollie, 450 A.2d [1026,] 1028 [(Pa. Super.
1982)] [(]quoting Commonwealth v. Sangricco, 490 Pa. 126,
415 A.2d 65 (1980)[)] (internal quotation marks omitted). Both
this Court and our Supreme Court have recognized that a post-
conviction petition is effectively uncounseled under a variety of
circumstances whenever omissions of record demonstrate that
counsel’s inaction “deprived the petitioner ‘the opportunity of
legally trained counsel to advance his position in acceptable legal
terms.’” Sangricco, at 133, 415 A.2d at 68, quoting
[Commonwealth v.] Fiero, [ ] 341 A.2d [448,] 450 [(Pa. 1975)].
* * *
Though the foregoing decisions predate adoption of the Post
Conviction Relief Act and current Rules of Criminal Procedure 1504
and 1507, this Court has held more recently that “one constant
remains as a holdover, from the prior law: an indigent defendant
shall be availed the opportunity to secure the appointment of
counsel to aid in the perfection of his first petition seeking post-
conviction collateral relief.” [Commonwealth v.] Kaufmann,
592 A.2d [691,] 698 [(Pa. Super. 1991)]. We find also that, as
under our prior law, “[t]his rule is not limited to mere naming of
an attorney to represent an accused, but also envisions that
counsel so appointed shall have the opportunity and in fact
discharge the responsibilities required by his representation.”
Fiero, 341 A.2d at 450. Accordingly, where, as under our prior
case law, the record fails to demonstrate meaningful
participation by counsel appointed to represent an indigent
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petitioner filing his first petition, we will remand for appointment
of new counsel.
Hampton, 718 A.2d at 1253-54 (some emphasis original, some emphasis
added). Therefore, where an appellant’s right to representation has “been
effectively denied by the action of court or counsel, the petitioner is entitled
to a remand to the PCRA court for appointment of counsel to prosecute the
PCRA petition. The remand serves to give the petitioner the benefit of
competent counsel at each stage of post-conviction review.”
Commonwealth v. Kenney, 732 A.2d 1161, 1164 (Pa. 1999).
In this case, the PCRA court found that Attorney Hathaway provided
ineffective assistance when he failed to file a notice of appeal on behalf of
Appellant following the denial of Appellant’s first PCRA petition. Despite that
finding, the PCRA court reappointed Attorney Hathaway to represent
Appellant.
Appellant once again challenged Attorney Hathaway’s effectiveness as
PCRA counsel, asserting that Attorney Hathaway failed to meaningfully amend
Appellant’s PCRA petition beyond what was averred in Appellant’s pro se filing.
Our review of the certified record reveals that the “Supplement to Motion for
Post Conviction Relief” filed by Attorney Hathaway is deficient. For example,
in his first paragraph, Attorney Hathaway states:
The Petitioner has instructed counsel that he does not want any
changes made to his pro se PCRA Petitions and the claims
enumerated therein and said claims are to be submitted to the
Court as is. Therefore, counsel respectfully submits the pro se
pleading of the Petitioner in support of his prayer for collateral
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relief in the nature of the provision of a new trial or the entry of
an arrest of judgment.
Supplement to Motion for Post Conviction Relief, 1/16/18 (emphasis added).
Yet, in the following paragraph, Attorney Hathaway contradicts the prior
paragraph, stating: “The Petitioner does seek to amend his claims to
include two additional claims. . . .” Id. (emphasis added).
Moreover, our review of Appellant’s appellate brief reveals numerous
errors and omissions in violation of the Rules of Appellate Procedure; these
errors are significant in that they provide this Court with no basis upon which
to review Appellant’s claims. Commonwealth v. Hakala, 900 A.2d 404, 406
(Pa. Super. 2006). As stated above, Appellant presents six questions for our
review. See Appellant’s Brief at 2. However, Appellant’s argument section
fails to provide support for any of his six issues. For example, the entire
argument relative to Appellant’s first issue reads: “The trial Court denied the
Petitioner his constitutional right to represent himself without legal basis or
justification. The appellant had the absolute right to self-representation at
time of trial, which the trial Court rejected and compelled him to proceed with
court-appointed counsel.” Id. at 4. This issue is unreviewable for two
reasons. First, this argument fails to include any pertinent discussion of the
issue, including citations to legal authority or the record. See Pa.R.A.P.
2119(a) (requiring that an appellant develop an argument with citation to and
analysis of relevant legal authority). Second, Attorney Hathaway failed to
request transcription of the Grazier hearing. Our law is unequivocal that the
responsibility rests on the appellant to ensure that the record certified on
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appeal is complete in the sense that it contain all of the material necessary
for the reviewing court to perform its duty. Commonwealth v. Kleinicke,
895 A.2d 562, 575 (Pa. Super. 2006) (en banc). The Rules of Appellate
Procedure require an appellant to order and pay for any transcript necessary
to permit resolution of the issues raised on appeal. Pa.R.A.P. 1911(a). When
the appellant fails to conform to the requirements of Rule 1911, any claims
that cannot be resolved in the absence of the necessary transcripts must be
deemed waived for the purposes of appellate review. Commonwealth v.
Williams, 715 A.2d 1101, 1105 (Pa. 1998).
In another example, relative to issue three – “whether the trial was
tainted given juror misconduct” – Attorney Hathaway abandoned this issue on
appeal by failing to brief the issue. See Appellant’s Brief at 4-7; see also
Gurley v. Janssen Pharmaceuticals, Inc., 113 A.3d 283, 288 n.11 (Pa.
Super. 2015) (issue is waived for purposes of appellate review when an
appellant does not develop it in brief). The Pennsylvania Supreme Court has
long held that it is not this Court’s obligation to formulate arguments on behalf
of an appellant. Commonwealth v. Wright, 961 A.2d 119, 135 (Pa. 2008);
see also Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)
(stating “where an appellate brief fails to provide any discussion of a claim
with citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived”);
Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002) (“[I]t is a well-
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settled principle of appellate jurisprudence that undeveloped claims are
waived and unreviewable on appeal.”).
In sum, because Appellant did not waive his right to representation by
counsel and PCRA counsel failed to meaningfully represent Appellant on the
merits of Appellant’s PCRA petition, we vacate the PCRA court’s order
dismissing Appellant’s petition and remand to the PCRA court for appointment
of new PCRA counsel.7 Upon remand, we direct the PCRA court to withhold
compensation from Attorney Hathaway for representation in this case. The
PCRA court is directed to appoint Appellant new counsel within 15 days of the
date of this memorandum. Following his or her appointment, new counsel
shall be permitted to file an amended PCRA petition, or, if counsel concludes
in the exercise of his or her professional judgment that the issues raised in
the PCRA proceeding are without merit, counsel may file an adequate no-merit
letter that addresses all of the issues raised in Appellant’s pro se PCRA petition
and move to withdraw.
Order vacated. Case remanded with instructions relative to the
appointment of new PCRA counsel. Jurisdiction relinquished.
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7 We note this Court’s recent findings of Attorney Hathaway’s ineffective
assistance in the following unrelated appeals: Nos. 116 & 118 WDA 2019 (per
se ineffectiveness, all issues waived), and No. 216 WDA 2019 (per se
ineffectiveness, all issues waived).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2019
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