Com. v. Smith, Q. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
QUAMEER T. SMITH :
:
Appellant : No. 3584 EDA 2019
Appeal from the PCRA Order Entered November 12, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003222-2017
BEFORE: SHOGAN, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 16, 2020
Appellant Quameer T. Smith appeals pro se from the order dismissing
his timely first Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546,
petition. Appellant claims that PCRA counsel’s legal representation was
deficient and ineffective. Additionally, Appellant asserts that the PCRA court
erred in dismissing his claims that plea counsel’s ineffectiveness resulted in
the abandonment of his direct appeal and the entry of an involuntary and
unknowing guilty plea. The PCRA court concedes that it erred by not holding
a hearing to determine Appellant’s assertion of abandonment in his direct
appeal, and the Commonwealth does not oppose a remand on that issue. For
the reasons that follow, we vacate the order in its entirety and remand this
matter for further proceedings consistent with this memorandum.
The PCRA court summarized the procedural history of Appellant’s
conviction as follows:
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On December 6, 2016, [Appellant] was arrested and charged with
murder, recklessly endangering another person, possessing the
instruments of a crime and violation of the Uniform Firearms Act.
[Appellant] was bound over on all charges following a preliminary
hearing on April 13, 2017. Jury selection was set to commence
when [Appellant] had a change of heart, pleading guilty to murder
of the third degree, person prohibited from possessing a firearm,
carrying a firearm without a license, carrying a firearm on public
street and possessing the instrument of a crime on February 26,
2018.[1] [There was no agreement as to the sentence.] Following
a presentence investigation, mental health examination, the
submission of pre-sentencing memoranda and argument of
counsel, [Appellant] was sentenced on May 29, 2018 to twenty to
forty years’ incarceration for murder of the third degree, a
consecutive five to ten years for the possession of a firearm
prohibited and probation for the remaining charges.
PCRA Ct. Op., 1/13/20, at 1-2.
On June 4, 2018, while plea counsel remained Appellant’s attorney of
record, the trial court received Appellant’s pro se motion to reconsider his
sentence.2 The following day, June 5, 2018, plea counsel filed a timely post-
sentence motion asserting that Appellant’s aggregate sentence of
imprisonment was excessive and requested a reduction of his sentence to
fifteen to thirty years’ incarceration.
The trial court denied Appellant’s counseled post-sentence motion on
June 11, 2018. That same day, plea counsel filed a second post-sentence
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1Bobby Hoof, Esq. (plea counsel) represented Appellant at the time of his
guilty plea.
2 Because plea counsel remained Appellant’s counsel of record after his plea
hearing, Appellant’s pro se post-sentence filings violated the principle against
hybrid representation. See Commonwealth v. Nischan, 928 A.2d 349, 355
(Pa. Super. 2007).
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motion requesting that the trial court withdraw Appellant’s guilty plea. The
trial court entered an order on June 27, 2018, denying Appellant’s second
counseled post-sentence motion.
Appellant did not take a direct appeal, but filed the instant timely PCRA
petition pro se, which the clerk of the court docketed on April 8, 2019.3
Appellant’s claims focused on his pro se post-sentence motions, and he
asserted that he was entitled to file post-sentence motions and a direct appeal
nunc pro tunc.
The PCRA court appointed PCRA counsel to represent Appellant.4 On
July 12, 2019, PCRA counsel filed a “no-merit” letter. In his letter, PCRA
counsel identified Appellant’s claims: (1) plea counsel’s ineffectiveness for
failing to file a motion to withdraw Appellant’s guilty plea and (2) the failure
of the trial court to docket Appellant’s pro se attempt to file post-sentence
motions or notify plea counsel of the pro se correspondence. PCRA Counsel’s
Letter, 7/12/19, at 2. PCRA counsel stated that Appellant’s pro se PCRA claims
did not warrant relief and that counsel was “unable” to amend Appellant’s pro
se PCRA petition because no other meritorious claims existed. Id. at 1, 5.
PCRA counsel cited Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
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3 Appellant attached to his pro se PCRA petition a handwritten letter from
Appellant to the trial judge as an exhibit. The exhibit appears to be dated
June 3, 2018, and requesting the withdrawal of his guilty plea. The letter
bears a fax stamp indicating that it was received by the trial court on June 11,
2018.
4 Specifically, the PCRA court appointed Douglas L. Dolfman, Esq., as PCRA
counsel.
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1988) (en banc), but he did not expressly state that he intended to withdraw
from representing Appellant. Moreover, the record contains no indication that
PCRA counsel filed a separate motion to withdraw.
On July 29, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice of
its intent to dismiss Appellant’s pro se PCRA petition. On August 12, 2019,
Appellant filed a pro se response to the Rule 907 notice objecting to PCRA
counsel’s no-merit letter and noting that PCRA counsel failed to develop his
claim that plea counsel abandoned him for the purpose of a direct appeal.
On November 12, 2019, the PCRA court entered the order dismissing
Appellant’s petition. The PCRA court did not formally grant PCRA counsel’s
request for leave to withdraw. Nevertheless, the November 12, 2019 order
stated that Appellant had thirty days to appeal the order, indicated that “no
new counsel would be appointed,” and advised Appellant that he could
“proceed pro se or with retained counsel.” Order, 11/12/19, at 1.
Appellant, acting pro se, timely filed a notice of appeal and complied
with the PCRA court’s order to file and serve a Pa.R.A.P. 1925(b) statement. 5
In his pro se Rule 1925(b) statement, Appellant asserted (1) procedural and
substantive defects in the PCRA court’s acceptance of PCRA counsel’s no-merit
letter, (2) procedural defects in the dismissal of his pro se and counselled
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5 The PCRA court dated its order for a Rule 1925(b) statement on December
10, 2019, and gave Appellant thirty days to file his statement. The court had
the order served personally to Appellant and PCRA counsel.
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post-sentence motions, and (3) plea counsel’s ineffectiveness with respect to
the entry of his plea.
The PCRA court filed a Rule 1925(a) opinion concluding that Appellant
was not entitled to relief based on his claims of defects related to PCRA
counsel’s filing of a no-merit letter and plea counsel’s ineffectiveness as to the
entry of Appellant’s plea. See PCRA Ct. Op. at 9-12.
Nevertheless, the PCRA court stated that it “neglected to hold a hearing
to determine if plea counsel abandoned [Appellant] by failing to file a
requested appeal.” Id. at 12. The PCRA court suggested that
this matter be remanded for an evidentiary hearing limited to the
issue of an alleged abandonment by counsel by failing to perfect
a requested appeal, or in the alternative the appointment of
appellate counsel and granting of an appeal nunc pro tunc from
the denial of the motion to withdraw [Appellant’s] guilty plea.
Id. at 14-15.
Appellant, in his pro se brief, presents the following questions on appeal,
which we have reordered for discussion:
1. Did the PCRA court err and abuse it[s] discretion when it
dismissed Appellant’s first timely PCRA petition and allowed
counsel to withdraw without making a proper showing that no
genuine issues existed[ t]hus violating Pa.R.Crim.P. 904(f)(2)?
2. Did the PCRA court err/abuse it[s] discretion when it dismissed
Appellant’s first timely PCRA petition[,] when it failed to
conduct an independent review of the record[, and] when it
failed to conduct an independent review of the claims and failed
to issue an opinion/reason on record of why the petition was
dismissed[, t]hus placing the court in violation of
Commonwealth v. Mostellar, 633 A.2d 615 (Pa. 1996)?
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3. Was [Appellant] deprived of procedural due process by the
court failing to furnish him with a copy of [PCRA] counsel’s no
merit letter and an independent opinion?
4. Did the PCRA court err/abuse it’s [sic] discretion when it
dismissed . . . Appellant’s first timely petition where it was clear
that he was eligible for relief pursuant to 42 Pa.C.S. §
9543(a)(2)(i-ii)?
5. Was trial/plea counsel ineffective for failing to inform appellant
that a post sentence motion was filed in response to his pro se
letter requesting withdraw of his plea and failing to inform the
appellant of the eventual denial of the a[]forementioned
motion? Moreover[,] such failure prevented appellant from
having his guaranteed right to direct appeal, thus violating his
rights under the Sixth and Fourteenth amendments?
6. Was trial/plea counsel ineffective for coercing the appellant to
plead guilty to murder where evidence existed of justification
pursuant to: 18 Pa.C.S. § 505 (i.e. imperfect self defense)
thus, violating his right to proceed to trial and prepare a
complete defense under the Sixth amendment?
7. Was plea counsel ineffective for falsely informing the appellant
that he’d rec[ei]ve no more than 15 years if he pled guilty[
t]hus rendering his plea not knowing, voluntary and
intelligently entered?
Appellant’s Brief at 3-4 (some formatting altered).
In his first three issues, Appellant contends that he is entitled to remand
based on errors related to PCRA counsel’s no-merit letter. Id. at 9-14.
Appellant notes that the PCRA court acknowledged its error in dismissing
Appellant’s pro se PCRA petition when there was an issue of arguable merit
related to Appellant’s direct appeal rights. Id. at 11. Appellant contends that
he is entitled to a remand and further requests that this Court find PCRA
counsel ineffective, appoint him new effective counsel, and reinstate his direct
appeal rights. Id.
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The Commonwealth does not oppose a remand. Commonwealth’s Brief
at 13. The Commonwealth, however, suggests that the remand should be
limited to the issue of plea counsel’s ineffectiveness regarding Appellant’s
direct appeal. Id. The Commonwealth, as well as the PCRA court, address
the remaining merits of Appellant’s pro se claims and both conclude that no
relief is due. Id.; PCRA Ct. Op. at 14-15.
“We review the denial of a PCRA petition to determine whether the
record supports the PCRA court’s findings and whether its order is free of legal
error.” Commonwealth v. Kelsey, 206 A.3d 1135, 1139 (Pa. Super. 2019)
(citations omitted).
Pennsylvania Rule of Criminal Procedure 904 states, in part:
(C) Except as provided in paragraph (H) [regarding the
appointment of counsel in death penalty cases], when an
unrepresented defendant satisfies the judge that the defendant is
unable to afford or otherwise procure counsel, the judge shall
appoint counsel to represent the defendant on the defendant’s
first petition for post-conviction collateral relief.
* * *
(F) When counsel is appointed,
* * *
(2) the appointment of counsel shall be effective throughout
the post-conviction collateral proceedings, including any appeal
from disposition of the petition for post-conviction collateral
relief.
Pa.R.Crim.P. 904(C), (F)(2).
Rule 904 sets forth a PCRA petitioner’s right to the assistance of counsel
for their first PCRA petition through the entire appellate process.
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Commonwealth v. Cherry, 155 A.3d 1080, 1082 (Pa. Super. 2017). Once
appointed, counsel must either amend the petitioner’s pro se petition or certify
that the claims lack merit and seek withdrawal from representation by
complying with the mandates of Commonwealth v. Turner, 544 A.2d 927(Pa. 1988), and Finley. Id. at 1083.
PCRA counsel seeking to withdraw “must review the case zealously.”
Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation
omitted).
Turner/Finley counsel must then submit a “no-merit” letter to
the [PCRA] court . . . detailing the nature and extent of counsel’s
diligent review of the case, listing the issues which petitioner
wants to have reviewed, explaining why and how those issues lack
merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.
Where counsel submits a petition and no-merit letter that . . .
satisfy the technical demands of Turner/Finley, the court . . .
must then conduct its own review of the merits of the case. If the
court agrees with counsel that the claims are without merit, the
court will permit counsel to withdraw and deny relief.
Id. (citations omitted).
“Even where a pro se first PCRA petition appears on its face to be
meritless, the [petititoner] is entitled to representation by counsel before that
determination is made.” Kelsey, 206 A.3d at 1140 (citations omitted).
Although this Court may not review the adequacy of a no-merit letter filed in
the PCRA court sua sponte, a petitioner preserves an objection to the PCRA
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counsel’s effectiveness by responding to the PCRA court’s Rule 907 notice and
raising the issue on appeal. See id. When a petitioner establishes that his
first PCRA was effectively uncounseled, the denial of relief cannot stand, and
this Court must remand for the appointment of new counsel. Id.
Following our review of the procedural history of this appeal, the PCRA
court’s opinion, and the parties’ argument, we agree that Appellant is entitled
to have the PCRA court’s order vacated and that a remand is required for
further proceedings. Similar to Kelsey, Appellant preserved his pro se
challenges to the adequacy of PCRA counsel’s no-merit letter before the PCRA
court and established that PCRA counsel did not develop an issue of arguable
merit identified by Appellant.6 See id. Therefore, we vacate the order
dismissing Appellant’s petition and remand this matter for the appointment of
new PCRA counsel and further proceedings. See id.
As to the scope of remand, we reject the suggestion posited by the
PCRA court and the Commonwealth limiting the scope of remand. As noted
in Kelsey, the error identified in Appellant’s first three claims is “the denial of
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6 We add that there were additional procedural irregularities with respect to
PCRA counsel’s apparent attempt to withdraw from representing Appellant.
For example, although PCRA counsel submitted a no-merit letter, he did not
expressly request leave to withdraw or file a separate motion to withdraw.
See Walters, 135 A.3d at 591. PCRA counsel also did not assert that he
provided Appellant with a copy of the no-merit letter and motion to withdraw
and advised Appellant of his right to retain new counsel or proceed pro se.
See id. Moreover, the PCRA court did not enter an order expressly granting
PCRA counsel leave to withdraw. However, since Appellant has essentially
prevailed in this pro se appeal, we need not address these irregularities in this
decision.
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the assistance of counsel.” See id. Therefore, we will not address the
sufficiency of the remaining portions of PCRA counsel’s no-merit letter nor will
we consider Appellant’s remaining PCRA claims. See id. Accordingly, if the
PCRA court finds merit in Appellant’s assertions that he was deprived of the
assistance of counsel with respect to his direct appeal, it would be improper
for the PCRA court, or this Court, to consider Appellant’s claims of ineffective
assistance of plea counsel. See id. Moreover, as this Court has stated, if “a
PCRA court determines that a petitioner’s right to direct appeal has been
violated, the PCRA court is precluded from reaching the merits of other issues
raised in the petition.” See Commonwealth v. Harris, 114 A.3d 1, 3-4 (Pa.
Super. 2015) (citation omitted). As the Harris Court noted:
[a] PCRA court lacks jurisdiction to consider a PCRA petition when
a petitioner’s judgment is not final. See Commonwealth v.
Taylor, 65 A.3d 462, 464 (Pa. Super. 2013) (citation omitted).
Once the PCRA court granted [a PCRA petitioner] the right to seek
further review nunc pro tunc, [the petitioner’s] sentence was no
longer final and the PCRA court lacked jurisdiction to rule on [the
petitioner’s] other requests for relief.
Id. at 6.
For these reasons, we agree with Appellant that PCRA counsel’s no-merit
letter was defective and that he was deprived of meaningful representation
with respect to his first PCRA petition. Accordingly, we vacate the order
dismissing Appellant’s petition and remand this matter for further proceedings
consistent with this memorandum including the appointment of new counsel.
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Based on our disposition, we need not address Appellant’s remaining PCRA
claims.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2020
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