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[U] Commonwealth v. Thomas

Superior Court of Pennsylvania

February 10, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
EDWARD CALVIN THOMAS, JR. Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered June 15, 2012 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0001914-2008

BEFORE: GANTMAN, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM

GANTMAN, J.

Appellant, Edward Calvin Thomas, Jr., appeals from the order entered in the Lehigh County Court of Common Pleas, denying his pro se petition for writ of habeas corpus. We vacate, remand for further proceedings, and deny counsel's petition to withdraw.

The relevant facts and procedural history of this appeal are as follows. At No. 1914 of 2008, Appellant pled guilty to retail theft. On July 22, 2008, the court sentenced Appellant to six (6) to twenty-three (23) months' incarceration. The order also specified that Appellant would serve his sentence at Lehigh County Prison. The court granted parole on October 10, 2008, but Appellant subsequently re-offended. Appellant pled guilty to new theft offenses at No. 1391 of 2009, and the court sentenced him to an aggregate term of eleven (11) to thirty-six (36) months' imprisonment. On July 30, 2009, the court conducted a parole revocation hearing at No. 1914 of 2008. At the conclusion of the hearing, the court revoked parole and re-sentenced Appellant to the balance of his original sentence, to be served consecutive to the sentence imposed at No. 1391 of 2009. Appellant did not file post-sentence motions or a notice of appeal.

On June 15, 2012, Appellant filed a pro se petition for writ of habeas corpus. In it, Appellant complained about his re-sentencing at No. 1914 of 2008. Specifically, Appellant argued that he "was denied due process by the action of…aggregating [the] county sentence into [a] state sentence by the [court]." (Habeas Corpus Petition, filed 6/15/12, at 1). Appellant further argued that he "was denied his constitutionally protected and guaranteed right to effective assistance of counsel…." (Id. at 2). Also on June 15, 2012, the court denied the pro se habeas corpus petition.

Appellant timely filed a pro se notice of appeal on July 5, 2012. On July 19, 2012, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Following the issuance of an extension, Appellant filed a pro se Rule 1925(b) statement on August 31, 2012. Appellant also filed a pro se motion for appointment of counsel, which the court granted.

As a preliminary matter, appellate counsel seeks to withdraw his representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded the issues to be raised are wholly frivolous; 2) file a brief referring to anything in the record that might arguably support the appeal; and 3) furnish a copy of the brief to the appellant and advise him of his right to obtain new counsel or file a pro se brief to raise any additional points the appellant deems worthy of review. Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance with these requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 2007). "After establishing that the antecedent requirements have been met, this Court must then make an independent evaluation of the record to determine whether the appeal is, in fact, wholly frivolous." Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982 (Pa.Super. 1997)).

In Santiago, supra, our Supreme Court addressed the briefing requirements where court-appointed appellate counsel seeks to withdraw representation:

Neither Anders nor McClendon[1] requires that counsel's brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal.
* * *
Under Anders, the right to counsel is vindicated by counsel's examination and assessment of the record and counsel's references to anything in the record that arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n the Anders brief that accompanies court-appointed counsel's petition to withdraw, counsel must: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel's conclusion that the appeal is frivolous; and (4) state counsel's reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Id. at 178-79, 978 A.2d at 361.

Instantly, appellate counsel's Anders brief summarizes the facts and procedural history of the case. Counsel refers to evidence in the record that may arguably support the issue raised on appeal, and he provides citations to relevant law. The brief also provides counsel's reasons for his conclusion that the appeal is wholly frivolous. In his petition to withdraw representation, counsel states he engaged in a thorough review of the record and concluded the appeal is frivolous and lacking merit. Counsel indicates he notified Appellant of the withdrawal request. Counsel also claims to have supplied Appellant with a copy of the brief and a letter explaining Appellant's right to proceed pro se or with new privately retained counsel. Counsel, however, failed to attach a copy of the letter he sent to Appellant. Consequently, this Court cannot verify the assertions in the withdrawal petition. See Commonwealth v. Woods, 939 A.2d 896, 900 (Pa.Super. 2007) (holding counsel's failure to provide copy of letter to client rendered withdrawal petition deficient; Superior Court evaluates counsel's letter to determine whether "letter may have added to, subtracted from, and/or conflicted with the petition"). Accordingly, counsel did not substantially comply with the requirements of Anders and Santiago.

As an equally important preliminary matter, the Post Conviction Relief Act ("PCRA")[2] "subsumes the writ of habeas corpus in circumstances where the PCRA provides a remedy for the claim." Commonwealth v. Stout, 978 A.2d 984, 986 (Pa.Super. 2009) (quoting Commonwealth v. Hackett, 598 Pa. 350, 362, 956 A.2d 978, 985 (2008), cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009)). The PCRA recognizes challenges to the legality of a sentence. Commonwealth v. Fowler, 930 A.2d 586 (Pa.Super. 2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008). Likewise, challenges to counsel's effectiveness are cognizable under the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(ii).

[T]he scope of the PCRA eligibility requirements should not be narrowly confined to its specifically enumerated areas of review. Such narrow construction would be inconsistent with the legislative intent to channel post-conviction claims into the PCRA's framework…and would instead create a bifurcated system of post-conviction review where some post-conviction claims are cognizable under the PCRA while others are not.

Stout, supra at 986 (internal citations omitted) (quoting Hackett, supra at 363, 956 A.2d at 986).

Further, an indigent petitioner is entitled to representation by counsel for a first PCRA petition. Commonwealth v. White, 871 A.2d 1291 (Pa.Super. 2005). This right to representation exists throughout the post-conviction proceedings, including any appeal from disposition of the PCRA petition. Id. "This right to counsel, although not constitutionally mandated, derives from the Pennsylvania Rules of Criminal Procedure, see Pa.R.Crim.P. 904(B)…." Stout, supra at 988. The right is unaffected even if the petition is untimely on its face. Id. See also Commonwealth v. Evans, 866 A.2d 442, 445 (Pa.Super. 2005) (stating, "The issue of whether the petitioner is entitled to relief is another matter entirely, which is to be determined after the appointment of counsel and the opportunity to file an amended petition"). Where a petitioner's right to representation has been effectively denied by the action of court or counsel, the petitioner is entitled to have his case remanded to the PCRA court for appointment of counsel to assist with the PCRA petition. Commonwealth v. Perez, 799 A.2d 848 (Pa.Super. 2002).

Instantly, Appellant's pro se petition for writ of habeas corpus challenged the court's authority to impose a state sentence following the revocation of Appellant's parole.[3] Appellant also claimed ineffective assistance of counsel. These issues generally fall under the PCRA. See Stout, supra; Fowler, supra; 42 Pa.C.S.A. § 9543(a)(2)(ii). The court, however, did not recognize the reach of the PCRA. Thus, the court evaluated the pro se habeas corpus petition independent of the PCRA and denied relief without appointing counsel to assist Appellant with the presentation of his claims.

Significantly, the current petition represents Appellant's first collateral attack upon the judgment of sentence. Because Appellant's pro se habeas corpus petition is the functional equivalent of a PCRA petition, the court should have confirmed Appellant's in forma pauperis status and appointed counsel.[4] See White, supra. Here, the court effectively denied Appellant the right to representation on his first PCRA petition. See Perez, supra.

The best resolution of this case is to vacate the order dismissing Appellant's pro se petition, remand the case for further proceedings, and deny counsel's petition to withdraw. Procedurally, Appellant will be placed in the same position he occupied when he initially filed his pro se petition for writ of habeas corpus in 2012. Upon remand, current or newly appointed counsel must consult with Appellant and file an amended first PCRA petition or a proper "no-merit" letter, which addresses Appellant's claims.

Order vacated; case remanded for further proceedings; counsel's petition to withdraw is denied. Jurisdiction is relinquished. Judgment Entered.


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