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Commonwealth v. Jackson

January 30, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
EUGENE CLINTON JACKSON, APPELLANT



Appeal from the PCRA Order entered November 15, 2007 In the Court of Common Pleas of Dauphin County Criminal No. CP-22-CR-0001248-2002.

The opinion of the court was delivered by: Fitzgerald, J.

BEFORE: LALLY-GREEN, FREEDBERG, and FITZGERALD,*fn1 JJ.

OPINION

¶ 1 Appellant, Eugene Clinton Jackson, appeals pro se from the order of the Dauphin County Court of Common Pleas, denying his second petition filed pursuant to the Post Conviction Relief Act (PCRA).*fn2 Appellant has also filed a petition to supplement his brief. We hold that the PCRA court erred when it dismissed appointed counsel sua sponte after the evidentiary hearing. Accordingly, we deny Appellant's petition as moot, but remand for appointment of counsel.

¶ 2 A previous panel of this Court set forth the relevant procedural history of this case:

On September 13, 2002, after a trial, the jury convicted

[A]ppellant of possession of controlled substances with intent to deliver, criminal conspiracy, and fleeing or attempting to elude a police officer. On December 19, 2002, the trial court sentenced [A]ppellant to an aggregate term of incarceration of 8 to 22 years. This [C]court affirmed the judgment of sentence on December 16, 2003, and our [S]supreme [C]court denied allowance of appeal on August 31, 2004. Commonwealth v. Jackson, 844 A.2d 1281 (Pa. Super. 2003) (unpublished memorandum), appeal denied, [ ] 579 Pa. 710, 858 A.2d 109 (2004).

Appellant, acting pro se, filed a PCRA petition on September 21, 2004, and the PCRA court appointed counsel to represent [A]ppellant. On November 15, 2004, counsel filed a "no-merit" letter and a motion to withdraw as counsel. See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On November 18, 2004, the PCRA court granted the motion to withdraw and issued notice, pursuant to Pa.R.Crim.P. 907, of its intention to dismiss the petition without a hearing. Subsequently, on December 14, 2004, the PCRA court dismissed the petition. This [C]court affirmed the order on November 17, 2005. Commonwealth v. Jackson, 890 A.2d 1100 (Pa. Super. 2005) (unpublished memorandum). Appellant did not seek allowance of appeal in our [S]supreme [C]court; however, on November 23, 2005, he filed the instant timely PCRA petition. On December 5, 2005, the PCRA court issued notice of its intention to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant filed an objection to the dismissal notice on December 14, 2005. Subsequently, on January 6, 2006, the PCRA court entered the order denying the petition.

Commonwealth v. Jackson, 928 A.2d 1123 (Pa. Super. 2007) (unpublished memorandum) (footnote omitted). The panel reversed the PCRA court's dismissal order, finding that Appellant properly preserved a layered claim of ineffective assistance of counsel for failing to object to his appearing before the jury in handcuffs. See id. The panel thus remanded for an evidentiary hearing. See id.

¶ 3 The PCRA court complied, conducting an evidentiary hearing on November 15, 2007. Appellant was represented by appointed counsel at the hearing. The court found no evidence that Appellant was ever shackled in view of the jury. PCRA Ct. Order, filed 11/19/07, at 1. It accordingly dismissed Appellant's second petition and "further ordered that Jeffrey Engle, Esquire, having been appointed for the purpose of representing [Appellant] at the November 15th hearing, is relieved of his appointment in this matter." PCRA Ct. Order, at 2. Appellant followed with this timely appeal. However, Appellant alleges that the PCRA court sent a Pa.R.A.P. 1925(b) order for a concise statement of matters complained of on appeal to the Dauphin County Prison, when he had already been transported to SCI-Camp Hill. He therefore contends that he did not receive the Rule 1925(b) order. The PCRA court thus found his issues waived, but also found that if the issues were preserved, it would rely on the reasons stated in its dismissal order of November 19, 2007. Appellant filed his appellate brief with this Court, along with a petition to supplement his brief.

¶ 4 Initially, we address his petition to supplement his brief. Appellant requests permission to supplement the argument section of his appellate brief, but in reality appears to seek avoidance of a finding of waiver for failure to file a timely Rule 1925(b) statement:

1. Petitioner requests permission to supplement Argument(1) [(regarding the propriety of the Rule 1925(b) order)] of the appellant [sic] brief filed in this [C]court on February 6, 2008.

2. Petitioner[']s argument is based on a 1925(B) order to file a concise statement of errors complained of on appeal no later than 21 days after entry of said order which was November 30, 2007.

3. Petitioner never receive[d] the November 30, 2007, order because it was sent to the Dauphin County Prison, when petitioner was already transported back to ...


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