Com. v. Williams, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DARYL BALKIM WILLIAMS :
:
Appellant : No. 58 WDA 2019
Appeal from the PCRA Order Entered December 12, 2018
In the Court of Common Pleas of Cambria County Criminal Division at
No(s): CP-11-CR-0002407-2015
BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED MARCH 09, 2020
Daryl Balkim Williams appeals from the December 12, 2018 order
dismissing his petition for relief pursuant to the Post-Conviction Relief Act
(“PCRA”). We vacate and remand so that Appellant may have an opportunity
to pursue a direct appeal nunc pro tunc.
Appellant’s underlying convictions relate to the events of October 12,
2015, when he shot and injured two individuals inside of a house located at
1131 Ridge Avenue, Johnstown, Pennsylvania. Appellant was arrested, and
charged with a number of crimes in connection with the shooting.
Appellant was represented by Mary E. Schaffer, Esquire, of the Cambria
County Public Defender Office. On November 9, 2016, Appellant entered a
guilty plea to two counts of aggravated assault, and was sentenced to an
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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aggregate term of seven and one-half to fifteen years of incarceration. On
November 30, 2016, Appellant filed a motion to withdraw his guilty plea,
claiming that he had been “forced” to enter a guilty plea. Contemporaneously,
counsel also filed a motion to withdraw. By order dated January 5, 2017, the
trial court denied both motions. With particular reference to the request to
withdraw, it stated as follows:
If [Appellant] wishes to file either post[-]sentence motions or
direct appeal to the Superior Court, the Public Defender’s office is
duty-bound to file all appropriate motions and/or appeal. After
any appropriate filings are made, the Public Defender’s
office can petition this Court to withdraw as counsel and
alternate counsel shall be appointed.
Order, 1/5/17, at unnumbered 1 (emphasis added).
Thereafter, Appellant filed no fewer than six letters addressed to
Attorney Schaffer requesting that a direct appeal be filed in his case. See,
e.g., Letter, 1/20/17, at unnumbered 1; Letter, 1/23/17, at unnumbered 1;
Letter, 2/24/17, at unnumbered 1; 4/6/17, at unnumbered 1; Letter, 4/24/17,
at unnumbered 1; Letter, 5/4/17, at unnumbered 1. Each of these letters was
forwarded to Attorney Schaffer pursuant to Pa.R.Crim.P. 576(4), and a written
notice to that effect accompanies each letter in the certified record. Id. In
spite of Appellant’s repeated entreaties, no direct appeal was filed. Indeed,
the certified record indicates Attorney Schaffer took no further action in the
case, irrespective of the trial court’s pointed denial of her motion to withdraw.
At this juncture, we note that our Supreme Court has stated as follows
regarding the duty attorneys owe to their client in the appellate context:
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[W]here there is an unjustified failure to file a requested direct
appeal, the conduct of counsel falls beneath the range of
competence demanded of attorneys in criminal cases, denies the
accused the assistance of counsel guaranteed by the Sixth
Amendment to the United States Constitution and Article I,
Section 9 of the Pennsylvania Constitution, as well as the right to
direct appeal under Article V, Section 9 . . . .
Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999) (footnotes
omitted). “It is well-settled that an accused who is deprived entirely of his
right of direct appeal by counsel’s failure to perfect an appeal is per se without
the effective assistance of counsel, and is entitled to reinstatement of his
direct appellate rights.” Commonwealth v. Grosella, 902 A.2d 1290, 1293
(Pa.Super. 2006) (internal citation and emphasis omitted).
On June 8, 2017, Appellant was forced to file a timely pro se PCRA
petition, which also requested in forma pauperis status. The trial court
apparently recognized the denial of Appellant’s direct appeal rights described
above, and sua sponte issued an order providing as follows:
[I]t appearing from the docket entries in this matter that
[Appellant] was never properly able to exercise his right to seek
relief on direct appeal, it is hereby ORDERED, DIRECTED and
DECREED as follows:
1. [Appellant] shall be permitted to appeal to the
Pennsylvania Superior Court, nunc pro tunc.
2. [Appellant’s] In Forma Pauperis Motion is GRANTED.
Richard Corcoran, Esq. is hereby appointed to serve as
counsel for [Appellant] for purposes of filing an Amended
PCRA Petition.
3. Attorney Corcoran shall review the pro se filings by
[Appellant] and determine whether to pursue a direct appeal
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on the part of [Appellant] or file a no-merit letter with the
Court.
4. Notice of this Order shall be forwarded by the Clerk of
Courts to Attorney Corcoran and [Appellant].
Order, 6/19/17, at unnumbered 1.
Unfortunately, this order is internally inconsistent and confusing. It
appoints counsel to Appellant, but simultaneously purports to advance both
Appellant’s direct appeal and PCRA petition. In relevant part, the order
charges Attorney Corcoran with both filing an amended PCRA petition and
pursuing Appellant’s direct appellate rights. This approach was antithetical to
Pennsylvania law. See Commonwealth v. Williams, 215 A.3d 1019, 1022-
23 (Pa.Super. 2019) (“Generally, a petitioner, such as [Appellant], may only
file a PCRA petition after he has waived or exhausted his direct appeal rights.”
(internal citation omitted)). The proper course of action would have been to
dismiss Appellant’s PCRA petition without prejudice to his ability to re-file after
the exhaustion of his direct appeal rights. Id.
As a result of the trial court’s confusing order, it appears that no action
was ever taken with respect to Appellant’s direct appellate rights. Rather, the
PCRA proceedings continued, unimpeded. On November 9, 2017, Attorney
Corcoran complied with part of the trial court’s June 19, 2017 order and filed
an amended PCRA petition. Two separate hearings were held with respect to
Appellant’s purported PCRA claims on April 20, 2018, and October 5, 2018.
On November 6, 2018, Attorney Corcoran filed a brief in further support of
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Appellant’s “collateral” claims. On December 12, 2018, the PCRA court
dismissed Appellant’s PCRA petition and issued a supporting opinion.
Appellant filed a timely notice of appeal, the PCRA court ordered Appellant to
file a concise statement of errors pursuant to Pa.R.A.P. 1925(b), and Appellant
timely complied. The PCRA court also filed a Rule 1925(a) opinion.
Throughout this process, the full implications of the trial court’s explicit
reinstatement of Appellant’s direct appeal rights were inexplicably overlooked
by all parties. This was patently erroneous. While this case presents an highly
unusual procedural posture, we are convinced that Appellant’s direct appellate
rights still remain unrealized. Irrespective of the judicial resources already
expended in pursuit of Appellant’s now-premature PCRA petition, “[t]he
remedy for the deprivation of this fundamental right of appeal is its
restoration.” Lantzy, supra at 572-73.
Accordingly, we vacate the order dismissing Appellant’s PCRA petition
and remand to the PCRA court for further proceedings consistent with this
memorandum. On remand, we direct the PCRA court to enter an order that:
(1) reinstates Appellant’s direct appeal rights; and (2) dismisses Appellant’s
PCRA petition without prejudice to his ability to re-file following exhaustion of
his direct appellate rights. Appellant shall have thirty days from the entry of
that order to file a timely direct appeal to this Court. See Pa.R.A.P. 903(a).
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2020
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