March 7, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
CHRISTOPHER MCENEANEY, Appellant
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. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013). Whether a petition is timely, presents a question of law. Id.
Appellant argued in his PCRA petition that the PCRA court should reinstate his PCRA appellate rights nunc pro tunc "due to his initial P.C.R.A. [c]ounsel's having abandoned him by failing to file a timely notice of appeal from the February 11, 2010 dismissal of Appellant's first P.C.R.A. petition." Appellant's brief at 10. In addition, he submitted that his petition was timely filed as to his claim that his sentence was unconstitutional based having submitted a supplement to his petition within sixty days of Miller, supra. The PCRA court declined to afford relief, finding Appellant's petition untimely.
The PCRA court accurately recognized that a petitioner's request for the reinstatement of his PCRA appellate rights nunc pro tunc must be timely filed. Commonwealth v. Fairiror, 809 A.2d 396 (Pa.Super. 2002). It then examined the newly-discovered fact exception, citing Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007). In Bennett, our Supreme Court held that PCRA counsel's abandonment can serve as a newly-discovered fact. Relying extensively on Commonwealth v. Huddleston, 55 A.3d 1217 (Pa.Super. 2012), the PCRA court held that Appellant did not exercise due diligence. It reasoned that Appellant did not file a nunc pro tunc PCRA motion "until at least five months after he learned about Mr. Galloway's failure to appeal from [its] order dismissing his PCRA petition." PCRA Court Opinion, 3/20/13, at 8. The PCRA court continued that Appellant learned of initial PCRA counsel's abandonment no later than January 13, 2012.
According to the PCRA court, the appropriate manner for Appellant to have proceeded would have been to appeal to this Court after the February 11, 2011 final order dismissing his first petition. Id. at 4. It also erroneously contended that present counsel had sought leave to file a concise statement for purposes of the interlocutory appeal on February 16, 2011, when the appeal period for the initial petition had yet to expire. However, PCRA counsel did not enter an appearance until July 26, 2011, and filed the concise statement referred to on October 11, 2011. Furthermore, the PCRA court erred in finding that current counsel did not allege initial PCRA counsel's ineffectiveness for not filing a timely appeal in the interlocutory appeal concise statement.
The PCRA court's legal conclusions overlook the procedural difficulties of Appellant actually filing an appeal from the denial of his initial amended petition where original PCRA counsel still technically represented him, but appears to have abandoned him at this stage of the proceedings. Indeed, the Commonwealth argued in Appellant's prior appeal that his pro se filing was a legal nullity because he was represented by original PCRA counsel. Hence, had Appellant filed a pro se notice of appeal from the final order, the question of whether such an appeal was proper would have arisen.
In Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011), our Supreme Court held that a pro se notice of appeal is not automatically a legal nullity. In Cooper, there was both a counseled and uncounseled notice of appeal, with the uncounseled appeal preceding both the counseled appeal and a counseled post-sentence motion. The Cooper Court held that the pro se appeal was premature because it occurred before the court addressed Appellant's counseled post-sentence motion. Instantly, there was never a counseled notice of appeal from the February 10, 2011 final order.
We acknowledge that pro se documents that require merits review, i.e., motions, Pa.R.A.P. 1925(b) statements, petitions, briefs, etc., are legal nullities when they are filed by a defendant represented by counsel. Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.Super. 2007) (pro se post-sentence motion a nullity); Commonwealth v. Ali, 10 A.3d 282 (Pa. 2010) (pro se 1925(b) statement a nullity). This, however, is due to the bar against hybrid representation and a desire by both this Court and our Supreme Court to refrain from overburdening the system by requiring courts to address both pro se and counseled filings. The same rationale does not apply to a notice of appeal, which requires no substantive review.
Further, there would not have been competing filings in this case. Rather, Appellant could have filed a pro se notice of appeal while still represented, and counsel likely would have taken no action. In similar situations, we have not treated the pro se filing as a nullity. See Commonwealth v. Robinson, 970 A.2d 455 (Pa.Super. 2009); Commonwealth v. Brown, 836 A.2d 997 (Pa.Super. 2003); Commonwealth v. Librizzi, 810 A.2d 692 (Pa.Super. 2002).
However, to expect Appellant to understand these highly technical nuances is untenable. The real issue as it pertains to initial PCRA counsel's abandonment, in our view, is whether Appellant had to file a serial PCRA petition alleging abandonment of counsel as a newly-discovered fact, or whether he could have sought leave to file an amended petition setting forth this claim. To allege a timeliness exception based on abandonment of counsel, Appellant must act with due diligence and file a serial petition within sixty days of discovering PCRA counsel's abandonment.
In this case, Appellant discovered PCRA counsel's abandonment prior to the February 10, 2011 final order. Was Appellant therefore required to file either an amended petition alleging abandonment of counsel, or a pro se notice of appeal from the February final order and address the issue therein, or submit a serial petition averring counsel abandoned him? In fact, Appellant sought leave to amend his petition based on PCRA counsel's abandonment. The PCRA court overly simplifies the complexities in this matter by stating that Appellant could have asked his original PCRA counsel to file a timely appeal from the February final order. This position overlooks Appellant's assertions that PCRA counsel already informed him in January that he would not represent Appellant. "It is illogical to believe that a counsel that abandons his or her client for a requested appeal[, ]" see Bennett, supra at 1275, will file such an appeal.
Further, Appellant did request relief within sixty days of discovering counsel's abandonment; he simply did so in his response to the court's Pa.R.Crim.P. 907 notice rather than a serial petition. This effort indicates due diligence and a prompt request for relief after discovering counsel's abandonment, although admittedly Appellant did not file a serial petition making these same allegations until after this Court quashed his interlocutory appeal. In light of recent jurisprudence by the Pennsylvania Supreme Court regarding PCRA counsel ineffectiveness claims, Appellant's initial actions were prescient. See Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009) (PCRA counsel ineffectiveness claim must be brought at PCRA level); Commonwealth v. Jette, 23 A.3d 1032, 1044 n.14 (Pa. 2011) ("if an appellant remains adamant that the claims foregone by counsel provide the better chance for success, he can avoid the potential loss of those claims by timely exercising his desire to self-represent or retain private counsel prior to the appeal."). Frankly, Appellant likely did not file a serial petition because he was attempting to litigate counsel's very abandonment in his interlocutory appeal to this Court. This Court's summary quashal of Appellant's interlocutory appeal without any explanation or citation to authority provides an additional layer of complexity.
To be sure, the safest course of action would have been for Appellant to file both a notice of appeal from the February final order and simultaneously file a serial petition alleging abandonment of counsel, and request a stay during the pendency of that appeal. In this instance, he may have been protected. We cannot fault Appellant for these failures where, at the time of his initial PCRA proceeding, it appears that original PCRA counsel abandoned his client and he sought to litigate that issue before the PCRA court in the first instance.
Counsel is to be appointed in a PCRA case to adequately and fully develop legal issues by filing an amended petition precisely because a pro se petitioner is not learned in the law. See Commonwealth v. Hampton, 718 A.2d 1250 (Pa.Super. 1998) (collecting cases); see also Commonwealth v. McGill, 832 A.2d 1014, 1024 (Pa. 2003) (discussing Pa.R.Crim.P. 905 and stating, "This rule indicates the desire of this Court to provide PCRA petitioners with a legitimate opportunity to present their claims to the PCRA court in a manner sufficient to avoid dismissal due to a correctable defect in claim pleading or presentation."). Rule 904, relative to appointment of counsel, and Rule 905, pertaining to amending petitions, work in tandem.
Absent the filing of an adequate amended petition or Turner/Finley no-merit letter during Appellant's first proceeding, where no evidentiary hearing transpired, he was, at best, constructively without counsel. Hampton, supra; see also Commonwealth v. Powell, 787 A.2d 1017, 1019 (Pa.Super. 2001); Commonwealth v. Priovolos, 746 A.2d 621, 625 (Pa.Super. 2000); Commonwealth v. Ollie, 450 A.2d 1026 (Pa.Super. 1982); Commonwealth v. King, 384 A.2d 1314 (Pa.Super. 1978); Commonwealth v. Irons, 385 A.2d 1004 (Pa.Super. 1978); Commonwealth v. Sangricco, 415 A.2d 65, 68-69 (Pa. 1980); see also Commonwealth v. Wiley, 966 A.2d 1153 (Pa.Super. 2009) (remanding for additional proceedings despite finding that petition was facially untimely where counsel failed to meaningfully participate in earlier PCRA proceedings); Commonwealth v. Blackwell, 936 A.2d 497 (Pa.Super. 2007); Commonwealth v. Perez, 799 A.2d 848 (Pa.Super. 2002); Commonwealth v. Davis, 526 A.2d 440 (Pa.Super. 1987).
Where a first-time petition is dismissed without counsel filing an amended petition or representing his client in any meaningful manner, any subsequent petition may be treated as a first petition relating back to the original pro se petition. Commonwealth v. Tedford, 781 A.2d 1167, 1171 (Pa. 2001) ("the PCRA court erred by dismissing Appellant's pro se PCRA Petition rather than directing Appellant to file an amended petition with legal assistance"); Commonwealth v. Duffey, 713 A.2d 63 (Pa. 1998); Commonwealth v. Williams, 828 A.2d 981, 990 (Pa. 2003) ("Tedford and Duffey stand for the proposition that if a court dismisses a pro se petition prior to the appointment of counsel, a subsequent counseled petition may not be treated as an untimely second petition.").
Admittedly, this case is distinct from Tedford, Duffey, and Williams, in that counsel herein was appointed and did file barebones amended petitions. Nonetheless, as revealed by the Commonwealth's own arguments below, those petitions were materially defective. Similar to the petitioners in Tedford, Duffey, and Williams, Appellant was diligent in pursuing collateral relief. He did so by seeking a new attorney during the litigation of his initial petition. Our review of the record does not leave us satisfied that Appellant was meaningfully represented and received a merits review during his PCRA proceeding. This Court and our Supreme Court have recognized that "when appointed counsel fails to amend an inarticulately drafted pro se [post-conviction] petition, or fails otherwise to participate meaningfully, this court will conclude that the proceedings were, for all practical purposes, uncounselled and in violation of the representation requirement...." Perez, supra at 852 (emphasis in original). Where counsel's actions or inactions deprive a petitioner of the opportunity "to advance his position in acceptable legal terms[, ]'" he is effectively without counsel. Commonwealth v. Sangricco, 415 A.2d 65, 68 (Pa. 1980); Perez, supra; Hampton, supra.
Accordingly, based on the precise facts herein, we find that Appellant's subsequent counseled petition should not have been treated as an untimely second petition, absent an evidentiary hearing to fully develop prior PCRA counsel's alleged abandonment. See Wiley, supra; Blackwell, supra. Since Appellant's petition raised issues of material fact relative to original PCRA counsel's abandonment, see Pa.R.Crim.P. 908(A)(2), we vacate the order and remand this matter for additional proceedings consistent with this decision.
As our resolution of this matter results in a remand, we are not required to reach Appellant's Miller issue. Nevertheless, we note that in Commonwealth v. Cunningham, 2013 WL 5814388; 81 A.3d 1 (Pa. 2013), our Supreme Court declined to find Miller applied retroactively. To the extent Appellant's second petition could be treated as a timely first if he was constructively denied PCRA counsel, it is possible that he may be able to forward arguments not made in Cunningham.
Case remanded with instructions.
Judge Strassburger files a Dissenting Statement.
The PCRA "confers no authority upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar in addition to those exceptions expressly delineated in the Act." Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (internal quotation omitted). Therefore, although the Majority may be right that it is unrealistic to expect someone in Appellant's petition to understand the "highly technical nuances" of the complex rules and applicable case law, I would affirm the PCRA court's order dismissing Appellant's PCRA petition as untimely.