Com. v. Hicks, W. ( 2023 )

J-A25042-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WOODROW JOHN HICKS JR. :
:
Appellant : No. 66 WDA 2022
Appeal from the PCRA Order Entered December 22, 2021
In the Court of Common Pleas of Indiana County Criminal Division at
No(s): CP-32-CR-0000467-2013
BEFORE: KUNSELMAN, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: APRIL 21, 2023
Woodrow John Hicks, Jr. (Appellant) appeals, pro se, from the order
entered in the Indiana County Court of Common Pleas, denying two petitions
for collateral relief filed pursuant to the Post Conviction Relief Act (PCRA).1
Appellant seeks relief from both his original judgment of sentence and a
probation revocation sentence, imposed following his jury conviction of
unlawful contact with a minor2 and related offenses. On appeal, Appellant
complains, inter alia, that the PCRA court abused its discretion when it failed
to address his motion to proceed pro se or permit him to file an amended
PCRA petition. For the reasons below, we affirm in part, vacate in part, and
remand for further proceedings.
____________________________________________
1 42 Pa.C.S. §§ 9541-9546.
2 See 18 Pa.C.S. § 6318(a)(1).
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The relevant facts underlying Appellant’s convictions were summarized
by this Court in a prior appeal:
These charges arose on November 3, 2012, after the victim, who
at the time was fifteen years of age, went to the Pennsylvania
State Police with her mother. She complained that [Appellant]
had been repeatedly contacting her in [an] attempt to arrange a
meeting to engage in sexual activities. If the victim would not
participate, [Appellant] threatened to send compromising photos
of her to her mother.
While at the police station, the victim sent a text message to
[Appellant] under the direction of the [troopers]. She arranged
to meet [Appellant] at a local store, however, when [Appellant]
arrived he was placed under arrest. Prior to the arrest being
effectuated, [Appellant] attempted to flee the scene and
endangered the arresting officers.
Commonwealth v. Hicks, 268 WDA 2015 (unpub. memo. at 2) (Pa. Super.
Nov. 12, 2015) (citation omitted), appeal denied, 483 WAL 2015 (Pa. Apr. 20,
2016).
Appellant was charged with unlawful contact with a minor, attempted
statutory sexual assault, corruption of minors, simple assault, aggravated
assault, criminal use of a communication facility, resisting arrest, and fleeing
and eluding a police officer.3 He proceeded to a jury trial that resulted in a
September 24, 2014, verdict of guilty on all offenses except aggravated
assault and resisting arrest. On January 5, 2015, the trial court imposed an
aggregate sentence of 16 months’ to five years’ imprisonment, followed by
____________________________________________
3See 18 Pa.C.S. §§ 901, 3122.1(b), 6301(a)(1)(ii), 2701(a)(1), 2702(a)(2),
7512(a), and 5104; 75 Pa.C.S. § 3733(a), respectively.
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five years’ probation.4 The court also informed Appellant he would be required
to register as a sex offender for his lifetime under the Sexual Offenders
Registration and Notification Act (SORNA).5
Appellant filed a timely direct appeal in which he argued his convictions
were against the weight of the evidence and that trial court erred in admitting
into evidence messages sent from his computer. See Hicks, 268 WDA 2015
(unpub. memo. at 3). A panel of this Court concluded that both claims were
waived ─ Appellant did not file the requisite post-sentence motion challenging
the weight of the evidence and failed to make a proper objection to the
evidence. See id. at 3-9. Appellant’s petition for allowance of appeal in the
Pennsylvania Supreme Court was denied on April 20, 2016. Thus, for
purposes of a PCRA proceeding, Appellant’s judgment of sentence was final
on July 19, 2016, 90 days after the Pennsylvania Supreme Court denied review
and the time for filing a petition of certiorari with the United States Supreme
Court expired. See 42 Pa.C.S. § 9545(b)(3) (judgment of sentence becomes
final at conclusion of direct review, or expiration of time for seeking review).
See also U.S. Sup. Ct. R. 13(1).
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4At all relevant times prior to January 2022, President Judge William J. Martin
presided over Appellant’s case.
5 See 42 Pa.C.S. § 9799.51-9799.75 (Subchapter I). See also 42 Pa.C.S. §
9799.52 (Subchapter I is applicable to those convicted of a sexually violent
offenses committed on or after April 22, 1996, but before December 20,
2012).
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The convoluted procedural history that followed Appellant’s direct
appeal features numerous missteps and misunderstandings of the relevant
law by both appointed counsel and the PCRA court.
On January 11, 2017, Appellant filed a timely, pro se PCRA petition,
raising several claims asserting the ineffective assistance of trial counsel. The
next day, the PCRA court appointed Jennifer Szalkowski, Esquire, as PCRA
counsel, and granted her 90 days to file an amended petition “if deemed
necessary[,]” and a proposed scheduling order for a hearing. Order, 1/12/17.
On February 22, 2017, Attorney Szalkowski filed what she titled as an
amended petition ─ however, she actually informed the court that an amended
motion was unnecessary, and requested a hearing on the claims presented in
Appellant’s pro se petition. See Appellant’s Amended Motion for Post
Conviction Collateral Relief, 2/22/17, at 1-2.
The PCRA court conducted a hearing on May 30, 2017. Thereafter, on
October 2, 2017, the court entered an order and opinion denying PCRA relief.
On October 20th, Appellant filed a pro se motion seeking to bar application of
his SORNA registration requirements. See Motion to Bar the Applicability of
Sex Offender Registration and/or Petition for Writ of Habeas Corpus,
10/20/17. He then filed a timely, pro se notice of appeal from the PCRA
court’s October 2nd order denying PCRA relief. See 1685 WDA 2017.
On December 14, 2017, this Court issued a per curiam order, noting
Appellant filed the pro se appeal while he was represented by Attorney
Szalkowski; therefore, this Court directed the PCRA court to determine if
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Appellant desired to proceed with counsel or pro se. See Order, 12/14/17.
One week later, Attorney Szalkowski filed a motion to withdraw. Following a
hearing, the PCRA court granted Attorney Szalkowski’s petition to withdraw
and appointed Andrew Skala, Esquire, to represent Appellant. See Order,
1/8/18. The court also directed Attorney Skala to represent Appellant with
regard to his pending pro se SORNA motion, which was scheduled for a hearing
on March 26, 2018. See id. Although it appears there was a hearing
conducted on that date,6 the certified record does not include a transcript from
that hearing.
On September 24, 2018, Appellant filed a counseled Motion for
Extraordinary Relief. He requested the PCRA court permit him “to file a post-
sentence motion relative to the weight of the evidence issue [nunc pro tunc]
and suspend but preserve the [PCRA] issues raised by [prior PCRA] counsel.”
Appellant’s Motion for Extraordinary Relief, 9/24/18, at 3 (unpaginated) (some
capitalization omitted). The following day, the PCRA court entered an order
granting Appellant’s requested relief. The court directed Appellant to file a
post-sentence motion within 30 days and ordered that the PCRA issues
previously raised “be suspended but preserved for further appeal, so
[Attorney Skala] can pursue the post-sentence motion.” Order, 9/25/18
____________________________________________
6See Letter from PCRA court to Attorney Skala, 4/4/18 (referring to March
26, 2018, hearing).
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(emphasis added). As we will discuss infra, the PCRA court had no authority
to grant this relief.
In compliance with the PCRA court’s order, Appellant filed a post-
sentence motion nunc pro tunc on October 24, 2018. The PCRA court
conducted a hearing on November 29th, during which it considered arguments
regarding both Appellant’s weight of the evidence and SORNA challenges. In
a post-hearing brief, the Commonwealth conceded that Appellant should only
be required to register under SORNA for a period of 10 years. See
Commonwealth’s Brief in Opposition to Appellant’s Post-Sentence Motion and
SORNA Motion, 1/14/19, at 6-8.
On January 28, 2019, the PCRA court entered an order and
accompanying opinion denying Appellant’s post-sentence challenge to the
weight of the evidence, but directing that he be subject to a 10-year period of
registration under SORNA, rather than the lifetime registration period imposed
at sentencing. Order, 1/28/19. Appellant filed a timely notice of appeal.
Thereafter, on March 29, 2019, Attorney Skala filed a praecipe to discontinue
the pending appeal docketed at 1685 WDA 2017, which was from the October
2, 2017, order denying Appellant’s timely filed PCRA petition.
On September 13, 2019, a panel of this Court affirmed in part and
vacated in part the PCRA court’s January 28, 2019, order. See
Commonwealth v. Hicks, 325 WDA 2019 (unpub. memo. at 1) (Pa. Super.
Sep. 13, 2019), appeal denied, 370 WAL 2029 (Pa. Mar. 31, 2020). First, the
panel concluded that Appellant’s motion seeking permission to file post-
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sentence motions nunc pro tunc “was . . . untimely, and the [PCRA] court
should not have considered it.” Id. at 4 (explaining trial court may grant
permission to file post-sentence motion nunc pro tunc only if request is made
within 30 days of imposition of sentence). Second, the panel determined that
both Appellant’s nunc pro tunc post-sentence motion and his SORNA motion
should have been construed as PCRA petitions. See id. at 5. Third, the panel
determined both petitions were untimely filed more than one year after
Appellant’s judgment of sentence was final ─ that is, after July 19, 2017. See
id. at 6. Fourth, because Appellant failed to plead or prove any of the
timeliness exceptions to the PCRA set forth at 42 Pa.C.S. § 9545(b)(1)(i)-(iii),
the panel concluded Appellant’s petitions were manifestly untimely, and the
PCRA court did not have jurisdiction to consider Appellant’s claims or grant
any relief. See id. at 6-7. Therefore, the panel affirmed the denial of
Appellant’s post-sentence motion, albeit on alternative grounds, and vacated
that part of the order modifying the length of Appellant’s SORNA registration
requirements.7 See id. The Pennsylvania Supreme Court denied Appellant’s
petition for allowance of appeal on March 31, 2020.
Meanwhile, after completing his five-year term of imprisonment,
Appellant began serving his probationary term in June of 2019. In February
____________________________________________
7 We note that this Court has since held “a challenge to the requirements
mandated by Subchapter I of SORNA II pertains to a collateral consequence
of one’s criminal sentence[,] does not fall within the purview of the PCRA[,]”
and may be considered by the trial court regardless of the PCRA’s time
restrictions. See Commonwealth v. Smith, 240 A.3d 654, 658 (Pa. Super.
2020).
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of 2020, Appellant’s probation officer filed an application to revoke his
probation. Following a hearing, on March 19th, the trial court revoked
Appellant’s probationary sentence, and imposed an aggregate term of two and
one-half to five years’ imprisonment. See Order, 3/19/20, at 1-2
(unpaginated). Appellant filed a timely direct appeal on April 15, 2020.
While that appeal was pending in this Court, on April 20, 2020, Attorney
Skala filed a motion seeking to restore Appellant’s PCRA rights pursuant to
the PCRA court’s September 25, 2018, order. As noted above, in that order,
the PCRA court purported to “suspend[ ] but preserve[ ] for further appeal”
the issues raised in Appellant’s first, timely PCRA petition while Appellant
pursued his post-sentence motion nunc pro tunc. See Order, 9/25/18. The
PCRA court conducted a status conference on May 1, 2020. On May 4th, the
court entered an order, providing, in relevant part:
[Appellant] presently has an appeal pending before the
Superior Court. At issue on the appeal is the revocation of [his]
State [Probation] and subsequent sentence. [Appellant’s]
1925(b) Statement is due May 12, 2020.
There are outstanding Post Collateral Relief issues
pending. Counsel shall, if deemed necessary, file an Amended
Petition and Scheduling Order on or before June 30, 2020. Should
counsel determine that an Amended Petition is not necessary,
counsel shall file a Scheduling Order with the Court on or before
June 30, 2020.
Appellant was previously represented by [Attorney
Szalkowski, who] has been appointed as an Assistant District
Attorney for Indiana County. As a result, the case is going to be
referred to the Office of the Attorney General.
Order, 5/4/20 (emphasis added).
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On May 26, 2020, Appellant, represented by Attorney Skala, filed a
motion seeking leave of court to file a motion to modify his probation
revocation sentence. The court properly denied the motion on June 11, 2020,
noting that it had no jurisdiction to modify Appellant’s probation revocation
sentence (1) more than 30 days after it was imposed, and (2) after an appeal
had been filed. See Order, 6/11/20.
Thereafter, pursuant to the PCRA court’s May 4th order, Appellant filed
a counseled, amended PCRA petition on June 30, 2020. Appellant challenged
the weight of the evidence supporting his convictions8 and presented six
allegations of ineffective assistance of trial counsel ─ the same claims that he
presented in his original, pro se petition filed in January of 2017. See
Appellant’s Amended Petition for Post Conviction Collateral Relief, 6/30/20, at
4-5 (unpaginated). The Commonwealth filed an answer asserting the PCRA
court had no jurisdiction to consider Appellant’s amended petition for two
reasons: (1) the appeal from his probation revocation sentence was pending
before the Superior Court, and (2) the amended petition was untimely filed.
See Commonwealth’s Answer to Appellant’s Amended Post Conviction Relief
Act (PCRA) Petition, 8/25/20, at 2-3. Following a hearing on August 28, 2020,
____________________________________________
8 Notably, Attorney Skala did not explicitly assert prior counsel was ineffective
for failing to file a post-sentence motion challenging the weight of the evidence
─ a claim that would have been appropriate since this Court deemed
Appellant’s weight challenge waived on direct appeal. See Appellant’s
Amended Petition for Post Conviction Collateral Relief, 6/30/20, at 4
(unpaginated); Hicks, 268 WDA 2015 (unpub. memo. at 3-5).
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the PCRA court directed the parties to brief the jurisdictional issue. See Order,
8/31/20. Both parties complied, and on December 7th, the PCRA court
entered an order denying Appellant’s petition “without prejudice to request a
hearing following a decision on the pending [probation revocation direct]
appeal . . . currently . . . before the Superior Court[.]” 9 Order, 12/7/20.
Ten days later, on December 17, 2020, this Court affirmed Appellant’s
probation revocation sentence. See Commonwealth v. Hicks, 511 WDA
2020 (Pa. Super. Dec. 17, 2020). Thereafter, on February 24, 2021, Appellant
filed a motion to reinstate his June 2020 PCRA petition. See Appellant’s
Motion to Reinstate Petition for Post Conviction Collateral Relief, 2/24/21.
Meanwhile, on March 12, 2021, he filed a counseled PCRA petition seeking
relief from his probation revocation sentence. See Appellant’s Petition for
Post Conviction Collateral Relief, 3/12/21. The PCRA court scheduled a
hearing on both petitions for April 29, 2021. The hearing was continued
several times, before eventually being held on August 17th.
At the August 17, 2021, hearing, the Commonwealth did not oppose the
court reinstating Appellant’s June 2020 PCRA petition, although it did oppose
____________________________________________
9 We note that the PCRA court was not precluded from considering the
amended PCRA petition related to Appellant’s original judgment of sentence
while his appeal from the probation revocation sentence was still pending.
See Commonwealth v. Williams, 215 A.3d 1019, 1023 (Pa. Super. 2019)
(because “revocation of probation does not materially alter the original
judgment of sentence[,]” petitioner may file PCRA petition “focused
exclusively on the underlying trial and conviction” while appeal from
revocation sentence is still pending; “challenges to the original trial and
sentencing are not affected by the revocation”).
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the granting of relief under that petition, asserting the claims were either
waived or previously litigated, and the petition was untimely filed. See N.T.,
8/17/21, at 5-6, 14-15. Attorney Skala argued that the June 2020 petition
should be considered timely, and Appellant testified regarding the alleged
ineffective assistance of probation revocation counsel. The court agreed to
keep the record open so that Attorney Skala could further investigate a claim
related to the probation revocation petition. See id. at 55. At the conclusion
of the hearing, Appellant requested to present “a habeas corpus type of
argument” before the court, which the trial court denied because he was
represented by counsel. See id. at 66. Appellant then stated that all he was
“asking for is some transcripts of [his] case.” Id. The court directed him to
speak with Attorney Skala. Id.
Following the hearing, on September 9, 2021, Attorney Skala filed a
motion to withdraw as counsel. He averred that he was alerted by the prison
that his “attorney control number was compromised . . . regarding mail sent
to” Appellant and “an investigation [had] begun into this matter.” Motion to
Withdraw as Counsel, 9/9/21, at 2 (unpaginated). Therefore, he did “not
believe it [was] in the best interest and welfare to continue to represent”
Appellant. Id. The PCRA court granted Attorney Skala’s motion on September
14th, and thereafter, appointed Timothy S. Burns, Esquire, to represent
Appellant “in this matter.” See Order, 9/14/21; Order, 10/21/21.
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On November 22, 2021, Attorney Burns filed a petition to withdraw as
counsel and a Turner/Finley10 “no merit” letter. Notably, however, Attorney
Burns reviewed only Appellant’s March 12, 2021, PCRA petition concerning
his probation revocation sentence. See Petition to Withdraw as PCRA Counsel
with Turner/Findley (sic) Letter, 11/22/21, at 1-5. Counsel did not mention
or address the claims raised in Appellant’s June 2020 PCRA petition
challenging his underlying judgment of sentence. The PCRA court scheduled
a hearing concerning counsel’s petition to withdraw for December 21, 2021.
At that hearing, Appellant stated he was not aware Attorney Burns had
been appointed until he received the petition to withdraw. See N.T.,
12/21/21, at 6. After the court explained the procedure and Attorney Burns’s
conclusion that Appellant’s claims were previously litigated, the following
exchange took place:
THE COURT: . . . I just want to make sure you understand
what we’re doing here today.
[Appellant]: You’re wanting to dismiss this PCRA; is that
correct?
THE COURT: That’s exactly right.
[Attorney Burns]: Actually, Your Honor, if I can interject.
You’re actually permitting me to withdraw.
THE COURT: Well, yeah. We’re permitting [Attorney Burns]
to withdraw as your counsel based on his no-merit letter. And
once he is withdrawn, then you can proceed representing yourself
____________________________________________
10 See Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc).
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or, if you wish, you can hire counsel to represent you. But as far
as [Attorney] Burns, he would be withdrawn from this case. So
that’s what’s going on here.
[Appellant]: And, if I want to proceed . . . pro se and
all that, how long would the courts give me to write up a
notification for that?
THE COURT: Well, I’ll explain that to you here in a little
bit.
Id. at 8-9 (emphases added).
The court then questioned Attorney Burns regarding his determination
that the issues raised in the probation revocation PCRA petition were
previously litigated before granting the petition to withdraw. See N.T.,
12/21/21, at 9-12. The court also stated that it agreed with counsel’s
assessment that the claims raised in the petition were previously litigated.
Id. at 12. Thereafter, the Commonwealth “clarif[ied] procedurally” that there
were two petitions at issue ─ the June 2020 “reinstated” petition and the
March 2021 probation revocation petition. See id. at 13. The PCRA court
agreed and asked Attorney Burns, “you were aware of the reinstated one also,
which is clearly, I believe, time-barred?” Id. Attorney Burns simply replied,
“Yes.” Id. As noted above, however, Attorney Burns did not address the
June 2020 petition in his motion to withdraw.
The PCRA court then informed Appellant that it intended to enter an
order the next day, granting Attorney Burns’s motion to withdraw, at which
time, Appellant could proceed pro se, or with retained counsel. See N.T.,
12/21/21, at 13-14. The court specifically told Appellant that he would have
30 days to file an appeal. See id. at 14. When advised he could not obtain
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new court-appointed counsel, Appellant stated “[t]hen I’ll go pro se[.]” Id. at
15. At the end of the hearing, the Commonwealth asked the court to clarify
if the PCRA court’s order would deny “both the June, 2020, petition and the
March 21, 2021, petition[.]” Id. at 16. The PCRA court replied, “Yes.” Id.
Appellant then requested clarification as to why the court intended to deny
both petitions. See id. at 17. The following exchange took place:
THE COURT: Well, I’m denying because I agree with
[Attorney] Burns that they don’t have merit. Basically, you’re
trying to relitigate items that have already been decided. You
can’t do that. [The] Superior [C]ourt has spoken on both of the
petitions in the past.
[Appellant]: Yeah, but that wasn’t ─ one of them was the
weight of evidence on [direct appeal counsel] and all that. That
has all the merit there is, that should be.
THE COURT: Well, we’re not talking about the actual merits
of the all[e]gation. The [S]uperior [C]ourt has stated that the
weight of the evidence claim was not properly raised and was
waived. So that’s why that’s denied.
[Appellant]: Okay.
Id. at 17 (emphases added).
The next day, December 22, 2021, the PCRA court entered an order and
opinion granting Attorney Burns’s petition to withdraw and denying both
Appellant’s March 2021 petition challenging his probation revocation
proceedings and his June 2020 amended petition challenging his underlying
judgment of sentence. With regard to the June 2020 petition, the PCRA court
summarily stated:
In [Appellant’s] June 30, 2020 Amended PCRA, [he]
attempts to raise the issue of the weight of the evidence at his
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trial held September 13 and 14[,] 2014. This Court does not have
jurisdiction over this matter. The Superior Court found this issue
had been waived. Commonwealth v. Hicks[,] 268 WDA 2015 .
..
Trial Ct. Op., 12/22/21, at 4.
That same day, Appellant placed in the prison mailbox11 a motion for
leave to proceed pro se and to amend his PCRA petition to include a claim that
Attorney Skala “did not raise” concerning Appellant’s “discovery of exculpatory
evidence that, had it been introduced at trial, would have probably altered the
outcome[.]” Appellant’s Motion for Leave to Proceed Self-Represented &
Amend or Withdraw Petition for Post-Conviction Relief, 12/22/21, at 1. This
petition was not received by the PCRA court until December 27, 2021.
On January 3, 2022, the PCRA court, now President Judge Thomas M.
Bianco, denied Appellant’s December 22nd motion as moot, referring to the
court’s December 22nd order disposing of both Appellant’s June 2020 and
March 2021 petitions. See Order, 1/3/22.12 That same day, Appellant placed
in the prison mailbox a pro se PCRA petition asserting, for the first time, newly
discovered evidence, judicial bias, and the denial of his access to the courts.
On January 10, 2022, Appellant filed a notice of appeal from the court’s
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11 “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.”
Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011).
Included in the certified record is the envelope in which Appellant mailed his
motion, which bears a postage date stamp of December 22, 2021.
12 The court entered an amended order on January 5, 2022, which simply
corrected the date of the December 22, 2021, order. See Order, 1/5/22.
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December 22, 2021, order. Thereafter, on January 11th, the PCRA court
entered two orders: (1) an order explaining that it could not “consider”
Appellant’s new January 2022, PCRA petition “until such time as appellate
review of this matter is completed[;]” and (2) an order directing Appellant to
file a Pa.R.A.P. 1925(b) concise statement concerning the issues he intended
to raise in his January 10th notice of appeal. See Orders, 1/11/22. Appellant
complied with the Rule 1925(b) order on January 27, 2022.
Appellant presents the following four issues in his brief on appeal:
I. Trial judge may not sit as PCRA judge.
II. Failure of judge to hear invocation of right to self-
representation by Appellant.
III. Failure of judge to address motion to proceed self-
represented and amend or withdraw petition for [PCRA]
relief by Appellant.
IV. Inherent bias of PCRA court.
Appellant’s Brief at iii (some capitalization omitted). We note that none of
Appellant’s complaints on appeal pertain to the denial of his March 2021 PCRA
petition relating to his probation revocation proceedings.
Our review of an order denying PCRA relief is well-established. “[W]e
examine whether the PCRA court’s determination is supported by the record
and free of legal error.” Commonwealth v. Mitchell, 141 A.3d 1277, 1283–
84 (Pa. 2016) (citation and quotation marks omitted).
As we stated at the outset, both appointed counsel and the PCRA court
demonstrated a misunderstanding of the law, which interfered with Appellant’s
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ability to present his claims in a timely manner. By way of background, first
we emphasize that once an appeal is taken, the trial court has no authority to
proceed further in the matter, with limited exceptions not relevant herein.
See Pa.R.A.P. 1701(a)-(b). Second, a trial court has no authority to grant
permission to file a post-sentence motion nunc pro tunc more than 30 days
after imposition of sentence. See Commonwealth v. Patterson, 940 A.2d
493, 498 n.3 (Pa. Super. 2007); Hicks, 325 WDA 2019 (unpub. memo. at 4).
Third, a PCRA court has “no jurisdiction to consider a subsequent PCRA petition
while an appeal from the denial of the petitioner’s prior petition in the same
case is still pending on appeal.” Commonwealth v. Beatty, 207 A.3d 957,
961 (Pa. Super. 2019). Moreover, “no court has jurisdiction to place serial
petitions in repose pending the outcome of an appeal in the same case.” Id.Fourth, a PCRA petitioner has a “rule-based right to the assistance of counsel
for their first PCRA petition[,]” which imposes a duty on appointed counsel “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.” Commonwealth v.
Cherry, 155 A.3d 1080, 1082-83 (Pa. Super. 2017) (citation & footnote
omitted).
Here, a review of the procedural history of Appellant’s case reveals the
following missteps:
- Attorney Szalkowski did not amend Appellant’s timely filed, pro
se petition filed in January of 2017, nor file a petition to
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withdraw; rather, she requested a hearing on Appellant’s pro
se claims.
- New counsel, Attorney Skala, improperly requested, and the
PCRA court improperly granted, permission to file an untimely
post-sentence motion nunc pro tunc.
- The PCRA court improperly entered an order “suspend[ing] but
preserv[ing]” the issues raised in Appellant’s timely PCRA
petition, when the order denying relief on that petition was
already before this Court on appeal.
- Relying on that (improper) order, Attorney Skala
discontinued Appellant’s timely appeal from the denial of his
first PCRA petition, foreclosing timely review.
- The PCRA court entered an order on May 4, 2020, permitting
counsel to amend Appellant’s previously filed (and previously
denied) PCRA petition, only to later conclude the amended
petition (filed on June 30, 2020) was untimely.
- The PCRA court improperly delayed disposition of the June 30th
amended petition while Appellant’s direct appeal from his
probation revocation sentence was pending.
- After Attorney Skala was permitted to withdraw, the PCRA
court appointed Attorney Burns to represent Appellant, but did
not indicate the representation was limited to the probation
revocation PCRA petition.
- Attorney Burns filed a motion to withdraw and “no merit” letter
that addressed only claims raised in the probation revocation
PCRA petition.
- The certified record does not include a letter from Attorney
Burns to Appellant “inform[ing him] of the right to proceed pro
se or to retain new counsel” as is required by the
Turner/Finley progeny.13
- The PCRA court conducted a hearing on Attorney Burns’s
petition to withdraw, and stated its intention to dismiss both
____________________________________________
13 See Commonwealth v. Knecht, 219 A.3d 689, 691 (Pa. Super. 2019).
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of Appellant’s petitions the next day, despite Appellant’s
statement that he wanted to proceed pro se.
- The PCRA court declined to address Appellant’s motion for
leave to amend his (now) untimely amended petition, which
was filed the same day as the court’s order denying relief.
Upon our review, we conclude that both prior counsel and the PCRA
court demonstrated a misunderstanding of the law, which led Attorney Skala
to forfeit appellate review of Appellant’s timely-pled ineffectiveness claims by
discontinuing Appellant’s appeal from the denial of his first PCRA petition.
While we agree the subsequently filed June 30, 2020, “amended” petition was
untimely filed,14 it is evident Attorney Skala did not believe that to be so ─
and, accordingly, he did not plead any exceptions to the timeliness
requirements. See 42 Pa.C.S. §§ 9545(b)(1)(i)-(iii).
Thereafter, newly appointed counsel ─ Attorney Burns ─ filed a motion
to withdraw and “no merit” letter, addressing only the claims raised in
Appellant’s (timely) petition challenging his probation revocation sentence.
During the hearing on counsel’s motion to withdraw, Appellant expressed his
desire to proceed pro se, and asked the court how much time he would have
to file a petition requesting pro se status. See N.T., 12/21/21, at 9. The
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14 Unfortunately, the PCRA court had no authority to either treat Appellant’s
June 30, 2020, petition as an extension of his January 2017 petition, or
reinstate the claims raised therein, which had been denied in October of 2017.
See Beatty, 207 A.3d at 963 (holding PCRA court had no authority (1) “to
put . . . second petition on pause until . . . pending appeal” from denial of first
petition concluded, or (2) “to ‘reinstate’ . . . second petition, after [appellant’s]
appeal on his first petition had ended, and then use the original filing date of
the second petition”).
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PCRA court told Appellant it would “explain that . . . in a little bit[,]” but then
proceeded to inform Appellant that it intended to deny both petitions the
next day (December 22nd). See id. at 9, 13-14. On December 22nd,
Appellant promptly filed a motion: (1) requesting to proceed pro se; (2)
seeking permission to file an amended petition for his trial-based claims; and
(3) asserting Attorney Skala’s ineffectiveness for failing to present a claim
concerning Appellant’s “discovery of exculpatory evidence.” See Appellant’s
Motion for Leave to Proceed Self-Represented & Amend or Withdraw Petition
for Post-Conviction Relief at 1. Such a claim might satisfy the “newly
discovered facts” exception to the PCRA’s timing requirements. 15 See 42
Pa.C.S. §§ 9545(b)(1)(ii) (exception to one-year filing requirement if
petitioner pleads and proves “the facts upon which the claim is predicated
were unknown to the petitioner and could not have been ascertained by the
exercise of due diligence”); (b)(2) (any petition invoking timeliness exceptions
“shall be filed within one year of the date the claim could have been
presented”).
Therefore, based on the unique circumstances presented here, we
conclude the PCRA court abused its discretion when it dismissed Appellant’s
June 30, 2020, petition without providing Appellant the opportunity to file an
amended petition, pro se. See Appellant’s Brief at 18-19. We emphasize the
following: (1) Attorney Skala discontinued Appellant’s timely appeal from
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15 We render no opinion on the merits of any of Appellant’s claims.
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denial of PCRA relief based on the PCRA court’s improper order purporting to
“suspend but preserve” the claims raised therein; (2) Attorney Skala did not
consider the June 30, 2020, petition to be untimely filed, but rather, a
restoration of the prior petition; (3) neither Attorney Skala, nor Attorney
Burns, sought to amend the PCRA petition after the court indicated it was
untimely filed; (4) Appellant promptly requested permission to proceed pro se
and amend his petition after Attorney Burns sought to withdraw from
representation of the probation revocation PCRA petition.16
Therefore, based on the reasons provided above, we vacate that part of
the PCRA court’s January 3, 2022, order, denying PCRA relief with respect to
Appellant’s June 30, 2020, petition. Because Appellant presents no challenge
to the denial of relief from his March 2021 probation revocation petition, we
affirm that part of the order. Furthermore, we remand this matter to the PCRA
court to permit Appellant the opportunity to file an amended petition
concerning his trial-based claims, and provide any bases to overcome the
timeliness requirements.17
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16 While Appellant did not file a response to Attorney Burns’s motion to
withdraw, as noted above, the record contains no letter from Attorney Burns
to Appellant informing him of his rights. Thus, we cannot conclude Appellant’s
request to proceed pro se was untimely.
17We briefly address Appellant’s claims concerning the PCRA court’s purported
bias. Appellant first asserts the trial court “may not sit in the capacity of PCRA
judge.” Appellant’s Brief at 13 (some capitalization omitted). This is simply
incorrect. As this Court has explained, “it is deemed preferable for the same
judge who presided at trial to preside over the [PCRA] since familiarity with
(Footnote Continued Next Page)
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Order affirmed in part and vacated in part. Case remanded for
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2023
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the case will likely assist the proper administration of justice.”
Commonwealth v. Martorano, 89 A.3d 301, 307 (Pa. Super. 2014) (citation
& quotation marks omitted; emphasis added). See also Pa.R.Crim. P. 903(A)
(directing that PCRA petition should be forwarded to trial judge, if available).
Moreover, with regard to Appellant’s fourth claim that the PCRA court
“evidenced an inherent bias,” (Appellant’s Brief at 20), we agree with the
Commonwealth that Appellant waived this claim by failing to file a recusal
motion before the PCRA court itself. See Commonwealth’s Brief at 5-6, citing
Commonwealth v. Timchak, 69 A.3d 765, 774 (Pa. Super. 2013). See also
Pa.R.A.P. 302(a) (issues not raised in trial court are waived on appeal).
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