Appeal from the Order October 16, 2012 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001914-2006
BEFORE: BENDER, P.J., BOWES, [*] and STRASSBURGER, [**] JJ.
Christopher McEneaney appeals from the order denying his post-conviction relief petition filed pursuant to the Post-Conviction Relief Act, 42 Pa.C.S. § 9541-9546. We vacate the order and remand for an evidentiary hearing as to whether initial PCRA counsel constructively denied Appellant representation, thereby according him the right to have his second petition treated as a timely first petition.
A jury found Appellant, age sixteen at the time of the commission of the crime, guilty of first-degree murder. The trial court sentenced him on May 7, 2007, to a mandatory term of life imprisonment without parole. Appellant sought collateral relief by filing a timely pro se PCRA petition on August 3, 2009. The court appointed counsel who filed an amended petition on February 10, 2010. Neither Appellant's pro se nor original amended petition included a claim that his mandatory sentence was illegal.
The Commonwealth filed a response in which it indicated that Appellant's amended petition was so defective that it could not adequately respond to the merits of Appellant's arguments. The court then directed counsel to file a second amended petition. Counsel complied on June 17, 2010, but did not aver that Appellant's sentence was a violation of the cruel and unusual punishment clause contained in the federal constitution or the cruel punishment clause of the Pennsylvania Constitution.
The Commonwealth again filed a response. Therein, the Commonwealth maintained that Appellant's second amended petition remained defective. It also indicated that Appellant should address the pleading deficiencies, and that an evidentiary hearing was likely required. Rather than direct PCRA counsel to submit adequate pleadings or schedule an evidentiary hearing, which the Commonwealth itself posited was potentially needed to resolve issues of material fact, the PCRA court issued a notice of intent to dismiss.
Appellant responded by filing a motion for leave to replace counsel. Therein, he alleged that counsel had constructively abandoned him by filing inadequate pleadings. He also, for the first time, averred that Graham v. Florida, 130 S.Ct. 2011 (2010), prohibited his sentence of life imprisonment without parole. Appellant specifically asked that new counsel be allowed to amend his petition, i.e., he sought leave to file an amended petition. Concluding that Appellant was not entitled to hybrid representation, but not discussing that he was entitled to meaningful representation, see Commonwealth v. Burkett, 5 A.3d 1260, 1277 (Pa.Super. 2010) (collecting cases), the PCRA court dismissed Appellant's motion. It further erroneously stated that counsel had raised all of the issues Appellant claimed his PCRA attorney omitted, except two additional claims not pertinent hereto. However, the second amended petition did not address the constitutionality of Appellant's sentence, an issue Appellant set forth in his response to the court's notice of dismissal.
Appellant then filed a pro se interlocutory appeal from the PCRA court order denying his request for new counsel on February 3, 2011. The PCRA court issued a final order on February 10, 2011, dismissing Appellant's petition. Original PCRA counsel did not file a timely notice of appeal from that final order. In addition, the court, on that same date, improperly directed Appellant's PCRA counsel to file a concise statement within seven days of its order. See Pa.R.A.P. 1925(b) (allowing twenty-one days to file the statement). Ultimately, on March 8, 2011, the court recognized its error and vacated that order. On April 5, 2011, the court again directed original PCRA counsel to file a concise statement within the appropriate paradigm. Initial PCRA counsel did not comply, nor did he move to withdraw based on the fact that Appellant's interlocutory appeal was premised on counsel's abandonment. Thereafter, current PCRA counsel entered her appearance before the PCRA court on July 26, 2011.
Meanwhile, on July 25, 2011, Appellant requested this Court afford him an extension of time to file a Pa.R.A.P. 1925(b) concise statement. On August 15, 2011, new counsel also requested that this Court remand Appellant's interlocutory appeal in order to file an amended PCRA petition. In a per curiam order, this Court addressed Appellant's multiple requests. The order denied Appellant's request to amend his petition without prejudice to seek relief in his brief. In addition, this Court denied Appellant's request to file a Pa.R.A.P. 1925(b) statement without prejudice to his right to request that relief before the PCRA court. Accordingly, on October 11, 2011, current counsel asked for leave to file a concise statement. The PCRA court granted that motion on December 27, 2011, and for the first time indicated that Appellant was appealing from its order denying his request for new counsel, and not prematurely appealing its final order. See Pa.R.A.P. 905(a)(5).
Appellant submitted his 1925(b) statement on January 17, 2012. Thereafter, Appellant filed a brief with this Court and the Commonwealth filed a motion to quash. Appellant answered. In a one-line per curiam order, this Court quashed Appellant's appeal on June 8, 2012. On June 18, 2012, current PCRA counsel filed a subsequent PCRA petition. Appellant supplemented that petition with a claim that Miller v. Alabama, 132 S.Ct. 2455 (2012), rendered his petition timely filed since that decision was handed down on June 25, 2012.
The PCRA court, in violation of Pa.R.Crim.P. 907, initially failed to provide Appellant with notice of intent to dismiss. Appellant objected, and the Court rescinded its order and issued a boilerplate notice of dismissal. On October 16, 2012, the court issued its final order. This timely appeal ensued. The docket does not reflect that the PCRA court directed Appellant to comply with Pa.R.A.P. 1925(b); however, Appellant filed a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The PCRA court subsequently authored a Pa.R.A.P. 1925(a) opinion. The matter is now ready for our review. Appellant's sole issue on appeal is, "[d]id the P.C.R.A. [c]ourt violate Appellant's rights under the Sixth, Eighth and Fourteenth Amendments by finding that the P.C.R.A. [p]etition was not timely filed thereby precluding a review of Appellant's claims on their merits?" Appellant's brief at 4.
We review an order granting a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008). Our scope of review includes the findings of the PCRA court and the evidence of record. Id. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. Id. However, our standard of review is de novo for questions of law. Commo ...