March 10, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
JOHN CATAQUET Appellant
Appeal from the Order of June 22, 2012 In the Court of Common Pleas of Lackawanna County Criminal Division at No.: CP-35-CR-0001318-2008
BEFORE: BOWES, J., WECHT, J., and PLATT, J. [*]
John Cataquet appeals the PCRA court's order dismissing without a hearing his petition under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541, et seq. For the reasons that follow, we find that Cataquet should have had an opportunity to present evidence regarding the alleged deprivation of his right to file a direct appeal from his judgment of sentence. Consequently, we vacate the PCRA court's order, and we remand for further proceedings.
On or about September 21, 2009, Cataquet was found guilty by a jury of two counts of aggravated indecent assault of a person fewer than thirteen years of age, 18 Pa.C.S. § 3125(a)(7); two counts of involuntary deviate sexual intercourse with a person fewer than sixteen years of age, 18 Pa.C.S. § 3123(a)(7); one count of indecent assault of a person fewer than thirteen years of age, 18 Pa.C.S. § 3126(a)(7); and one count each of endangering the welfare of children, 18 Pa.C.S. § 4304, corruption of minors, 18 Pa.C.S. § 6301(a)(1), and unlawful contact with a minor, 18 Pa.C.S. § 6318(a)(1). On February 22, 2010, the trial court sentenced Cataquet in the aggregate to seventeen to thirty-four years' incarceration, to be followed by eight years' probation. On that date, trial counsel filed a petition for leave to withdraw as counsel, which the trial court granted on that same day. Nonetheless, on February 25, 2010, trial counsel, whose appearance already had been withdrawn, filed a motion for reconsideration of sentence that was denied by the trial court on March 8, 2010. No direct appeal was filed.
Cataquet contends that he provided his first pro se petition for PCRA relief to prison authorities for mailing on or about January 9, 2011. The record contains postal receipts showing that the petition was mailed on January 12, 2011, and signed and time-stamped by someone in the Lackawanna County Court of Common Pleas on January 18, 2011. See Attachment to Letter, John Cataquet to Clerk of Judicial Records, filed 1/27/2012. In either event, Cataquet's pro se petition ("First Petition") was timely filed. We proceed accordingly.
In his First Petition, Cataquet set forth the following bases for relief (reproduced verbatim): "That my Pa. St. Const. rights violated Art I-Sec10, 5th Amend. U.S.C.A. of double Jeopardy. That trial counsel was ineffective, incompetent for not knowing same-elements occurred, Jeopardy is attached. That This is exculpatory evidence that counsel failed to know in representing Petitioner." Motion for Post-Conviction Collateral Relief, 2/11/2011, at 3.
In a pro se, self-styled "Supplemental Petition to Post Conviction Relief Act, " handwritten on legal paper and filed on March 29, 2011 (hereinafter, "First Supplement"), Cataquet elaborated at greater length on the same issue presented in his first petition – that his convictions and/or sentences violated the parallel Pennsylvania and federal constitutional prohibitions against double jeopardy.
By order entered February 2, 2012, more than a year after Cataquet transmitted his First Petition, the PCRA court appointed Kurt Lynott, Esq. (hereinafter, "PCRA counsel"), to represent Cataquet in pursuing collateral relief. On the same day, the PCRA court issued a Rule to Show Cause, returnable by the Commonwealth on or before March 1, 2012, why an evidentiary hearing should not be held regarding Cataquet's PCRA petition. The record contains no response from the Commonwealth.
By order entered on March 7, 2012, the PCRA court granted PCRA counsel's motion to withdraw as counsel pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). Notably, the docket does not reflect the filing of counsel's motion to withdraw. However, a purported Turner/Finley no-merit letter dated February 20, 2012, appears in the certified record as an attachment to the PCRA court's order granting counsel's petition. In that document, PCRA counsel briefly set forth reasons why Cataquet's double jeopardy claim, which was raised in his First Petition and First Supplement, lacked merit.
Thereafter, on March 12, 2012, Cataquet filed what he dubbed a "Motion for Waiver of Counsel to Proceed Pro Se for Appeal" (hereinafter "Motion for Waiver"). Therein, Cataquet challenged PCRA counsel's assertion that Cataquet's petition lacked merit. Cataquet explained that trial counsel was ineffective for failing, inter alia, "to request DNA evidence and results." Motion for Waiver at 2. He further asserted that PCRA counsel was ineffective for failing to recognize, and seek relief for, trial counsel's ineffectiveness in this and other regards.
Cataquet also contended that he had been denied a requested direct appeal. Specifically, he noted that, "had [PCRA] counsel truly checked the record, he would have found that trial counsel was indeed ineffective . . . . [I]t was made clear to [me] via [trial counsel, ] who stated clearly [that] the public defender's office dropped the ball on my appeal." Id. In support of this contention, he attached a letter from trial counsel, dated December 16, 2010, which warrants partial reproduction:
I checked with all my sources and found that you are correct. You have no attorney appointed to process your appeal. Therefore, no appeal was ever filed.
You filled out the paperwork for a court-appointed attorney and your parents said that they delivered it personally to the Public Defender's Office. The Public Defender's Office dropped the ball. They never filed an appeal. Therefore, all appeal times have run and you must serve your sentence.
The alternative you have is to file a PCRA [petition] . . . . Clearly, the Public Defender's Office dropped the ball on your appeal and, therefore, before you can give your reasons for the appeal, you must show that you have a right to appeal. The only avenue you have is to file a [PCRA] petition stating that the Public Defender's Office ineffectively represented you in not protecting your appellate rights. . . . You have one year from the date of your original sentence to file this petition. So, therefore, time is of the essence.
* * * *
After you file the PCRA, you must convince [the PCRA court] that you were ineffectively represented either at trial by me or by the Public Defender's Office by not filing the appeal (a better claim). You will need your parents to testify at the hearing that you attempted to have the Public Defender's Office represent you in the appeal and they never filed one. . . .
Motion for Waiver, Exh. A at 1-2. (Letter from trial counsel to John Cataquet, 12/16/2010).
Further confusion arose during the last phase of this case's journey to this Court. On June 21, 2012, the PCRA court docketed Cataquet's "Second Supplemental Amended PCRA Petition Requesting Permission to File a Direct Appeal Nunc Pro Tunc Also Raising New Claim Under the Authority of Martinez v. Ryan" (hereinafter "Second Supplement"), which was dated June 13, 2012. Once again, Cataquet argued, inter alia, that PCRA counsel was ineffective "for failing to raise trial counsel's ineffectiveness for failing to file a direct appeal on behalf of petitioner as requested." Second Supplement at 2.
At about the same time, in an order docketed on June 22, 2012, but dated June 19, 2012, the PCRA court dismissed Cataquet's First Petition without a hearing. The court appeared to incorporate by reference the reasons set forth in PCRA counsel's Turner/Finley notice in support of its order, which the court attached to its brief order. The docket and certified record do not indicate that the PCRA court ever issued a notice of its intent to dismiss Cataquet's First petition without a hearing, affording Cataquet twenty days within which to respond to the notice. This is a step the PCRA court must take before dismissing a PCRA petition without a hearing. See Pa.R.Crim.P. 907 ("If the judge is satisfied . . . that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, . . . the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice."); see Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa. Super. 2007) ("[T]he notice requirement set forth in Rule 907 has been held to be mandatory . . . .").
Then, on July 2, 2012, in an order dated June 26, 2012, the PCRA court filed a Rule 907 notice signaling the court's intent to dismiss Cataquet's "post-conviction request for relief dated June 21, 2012, " i.e., Cataquet's "Second Supplement." In support thereof, the PCRA court cited Commonwealth v. Lawson, 549 A.2d 107 (Pa. 1988), in which our Supreme Court held that a serial PCRA petition for collateral relief should be dismissed absent a showing of a "miscarriage of justice." See also Pa.R.Crim.P. 907, cmt. (citing Commonwealth v. Szuchon, 633 A.2d 1098, 1099 (Pa. 1993); Lawson, supra). As of September 20, 2012, the PCRA court docket does not indicate that the court had dismissed Cataquet's Second Supplement.
On July 19, 2012, Cataquet filed a notice of appeal of the PCRA court's order dated June 19, 2012, and docketed on June 22, 2012, in which the PCRA court dismissed Cataquet's First Petition. Before this Court, Cataquet raises the following issues:
I. Was trial counsel ineffective for failing to request [that] DNA evidence be presented at trial, that would prove that [Cataquet] did not commit this crime, and was trial counsel ineffective for failing to request a lie detector [test] be done on the alleged victim, to make sure she was telling the truth, a[nd] [Cataquet] had requested counsel to do so[?]
II. Was appellate counsel ineffective for failing to raise trial counsel's ineffectiveness for failing to file a direct appeal to the appellate Court, as trial counsel had informed [Cataquet] that he would, and was appellate counsel also ineffective for failing to amend [Cataquet's] PCRA petition, and for filing a request for Reconsideration of sentence, instead of filing Nunc Pro Tunc a direct appeal to this appellate Court[?]
III. [Was] the evidence presented at trial insufficient to substain [sic] the conviction for involuntary deviate sexual intercourse, indecent assault, corruption of minors, endangering the welfare of children[, ] and unlawful contact with a minor[?]
IV. Did the Lower Court err in failing to turn over the trial transcripts as requested by [Cataquet], to perfect his appeal in the appellate Court, thereby violating his Constitutional right to appeal his conviction[?]
Brief for Cataquet at 3. Because we find that Cataquet's second issue requires vacatur of the PCRA court's order and a remand for further proceedings, and in turn calls into question the finality of his judgment of sentence, we need not resolve the other issues raised.
Our review of a PCRA court order dismissing a petition under the PCRA is subject to the following standard:
We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary.
Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012) (quoting Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012); internal citations omitted)).
Before proceeding further, we must consider the prospect that Cataquet failed to preserve his claim related to the failure of trial counsel or the public defender's office to perfect a requested appeal. It is axiomatic that this Court may not review an issue raised on appeal of a denial of a PCRA petition that was not presented before the PCRA court. Commonwealth v. Albrecht, 720 A.2d 693, 704 (Pa. 1998); Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). In order to resolve the issue, we first must determine which of Cataquet's several filings we may consider.
Inasmuch as responses in opposition to a Turner/Finley no-merit letter and to a Rule 907 notice of intent to dismiss without a hearing are permissible as of right to an event that occurs mid-stream in the process of disposing of a PCRA petition, those responses are fundamentally unlike amended or supplemental PCRA petitions. See Pa.R.Crim.P. 907(1) ("The defendant may respond to the proposed dismissal within 20 days of the date of the notice."); Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008) (providing that counsel filing a no-merit letter must provide that letter to his client with a separate letter explaining that the petitioner may proceed pro se or retain counsel to do so). Notably, Cataquet's Motion for Waiver patently was filed directly in response to PCRA counsel's no-merit letter. Therein, Cataquet alleged ineffectiveness of trial counsel and PCRA counsel. See Motion for Waiver at 1-2 (acknowledging receipt of PCRA counsel's no-merit letter and asserting ineffectiveness of PCRA counsel).
In Rykard, this Court held as follows:
[A] claim of PCRA counsel ineffectiveness set forth for the first time in a Rule 907 response to a notice of intent to dismiss during a petitioner's first PCRA proceeding is not a second or serial petition, nor is it an amended petition. Rather, the claim is more properly viewed as an objection to dismissal.
55 A.3d at 1187. In so ruling, we employed the following reasoning:
[S]ince petitioners are not authorized to pursue hybrid representation, and counsel cannot allege his own ineffectiveness, claims of PCRA counsel ineffectiveness cannot ordinarily be raised in the state post-conviction proceeding below. As [the petitioner's] post-conviction matter was his first and was not complete when he filed his response to the PCRA court's pre-dismissal notice, there was no completed prior post-conviction proceeding. Furthermore, only after counsel sought to withdraw was [the petitioner] able to allege that his PCRA attorney was ineffective.
Id. at 1188.
It is now settled that a challenge to the effectiveness of PCRA counsel must first be raised before the PCRA court, either in a response to PCRA counsel's Turner/Finley letter (if any), a response to a PCRA court Rule 907 notice, or in a new PCRA petition. See Commonwealth v. Ford, 44 A.3d 1190, 1197-98 (Pa. Super. 2012) (citing, inter alia, Commonwealth v. Pitts, 981 A.2d 875, 879 n.3, 880 n.4 (Pa. 2009) (finding challenge to PCRA counsel's effectiveness waived because petitioner failed to "challenge PCRA counsel's stewardship after receiving counsel's withdrawal letter and the notice of the PCRA court's intent to dismiss his petition")). Thus, in Ford, we held that, "when counsel files a Turner/Finley no-merit letter to the PCRA court, a petitioner must allege any claims of ineffectiveness of PCRA counsel in a response to the court's notice of intent to dismiss." 44 A.3d at 1198.
Ford and Rykard essentially compel us to treat Cataquet's Motion for Waiver as a constructive or prospective response to the Rule 907 notice that the PCRA court failed to provide before granting counsel leave to withdraw and dismissing Cataquet's PCRA petition without an evidentiary hearing. To find otherwise would deny Cataquet the benefit of the mandatory Rule 907 notice, or require us to vacate the PCRA court's dismissal and its order granting PCRA counsel leave to withdrawal, despite the fact that Cataquet has not specifically challenged the PCRA court's violation of Rule 907, and therefore has waived it. see Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa. Super. 2007). Not only would the latter course violate Boyd, it would also disserve our interest in assuring the "just, speedy and inexpensive determination" of this case. Pa.R.A.P. 105.
Our decision is reinforced by the fact that the overarching considerations relied upon in Rykard apply here. In his Motion for Waiver, Cataquet specifically asserted PCRA counsel's ineffectiveness for not identifying and asserting prior counsel's ineffectiveness for failing to pursue restoration nunc pro tunc of Cataquet's right to a direct appeal. He could not have done so at any earlier point without running afoul of the prohibition on hybrid representation. In furtherance of his claim, he attached the letter of trial counsel excerpted above, which contained statements creating a question of fact as to whether Cataquet completed, and whether his family submitted to the public defender's office, a request for representation in post-conviction proceedings. Consequently, we find that Cataquet's Motion for Waiver preserved his claim.
As noted supra, in his First Petition, Cataquet asserted trial counsel ineffectiveness only on the basis that trial counsel failed to recognize and seek relief from purported violations of Cataquet's right not to be held in jeopardy twice for the same crime, either in the convictions themselves or in sentencing. In his Turner/Finley letter, PCRA counsel concluded that these issues lacked any merit because the convictions for two counts each of the crimes Cataquet was found to have committed related "to separate incidents and involve[d] different factual bas[e]s for each charge." Turner/Finley Letter at 2. Moreover, PCRA counsel noted, the imposition of consecutive sentences does not present a substantial question warranting review of the discretionary aspects of sentencing Id. at 2 (citing, inter alia, Commonwealth v. L.N., 787 A.2d 1064, 1071 (Pa. Super. 2001)).
In his pro se Motion for Waiver, however, Cataquet argued, in relevant part, that PCRA counsel was ineffective for failing to seek restoration of Cataquet's right to a direct appeal because "the public defender's office dropped the ball on [Cataquet's] appeal." Motion for Waiver at 2. Thus, we find that Cataquet preserved his challenge to PCRA counsel's effectiveness for failing to address the alleged deprivation of Cataquet's constitutional right to file a direct appeal with the assistance of counsel. See generally Commonwealth v. Wrecks, 931 A.2d 717, 722 (Pa. 2007) (emphasizing the constitutional dimension of these rights). Moreover, in so doing, Cataquet properly layered his claims of trial counsel and PCRA counsel's ineffectiveness. See generally Commonwealth v. McGill, 832 A.2d 1014, 1021, 1022 (Pa. 2003) (holding that defendant asserting a layered ineffectiveness of counsel claim must plead and prove ineffectiveness separately for each relevant attorney in the chain of defendant's representation). Consequently, we may consider Cataquet's claim that PCRA counsel was ineffective for failing to raise prior counsel's failure to perfect a requested direct appeal.
This issue is governed by the following standard:
In Pennsylvania, counsel is presumed effective, and a defendant bears the burden of proving otherwise. In order to be entitled to relief on a claim of ineffective assistance of counsel, the PCRA petitioner must plead and prove by a preponderance of the evidence that (1) the underlying claim has arguable merit; (2) counsel whose effectiveness is at issue did not have a reasonable basis for his action or inaction; and (3) the PCRA petitioner suffered prejudice as a result of counsel's action or inaction. When determining whether counsel's actions or omissions were reasonable, we do not question whether there were other more logical course of actions which counsel could have pursued: rather, we must examine whether counsel's decisions had any reasonable basis. Further, to establish prejudice, a petitioner must demonstrate that but for the act or omission in question, the outcome of the proceedings would have been different. Where it is clear that a petitioner has failed to meet any of the three, distinct prongs . . ., the claim may be disposed of on that basis alone, without a determination of whether the other two prongs have been met.
Commonwealth v. Steele, 961 A.2d 786, 796-97 (Pa. 2008) (citations and internal quotation marks omitted; emphasis in original).
While this standard, in expression and application, places a considerable burden upon a petitioner seeking relief for ineffective assistance of counsel, Pennsylvania decisional law traditionally has treated allegations that a petitioner was denied a requested direct appeal of a judgment of sentence with more solicitude. It is well settled that counsel is per se ineffective for failing to file a requested direct appeal. Commonwealth v. Lantzy, 736 A.2d 564, 571-72 (Pa. 1999); see also id. at 571 n.7 (collecting cases); Commonwealth v. Hernandez, 755 A.2d 1 (Pa. Super. 2000); cf. Romero v. Tansy, 46 F.3d 1024, 1030-31 (10th Cir. 1995)("[I]f counsel's failure to perfect a direct appeal violated appellant's right to effective assistance of counsel, then appellant has demonstrated both cause and prejudice for purposes of overcoming any procedural bar to his claim on federal habeas review.").
In the instant case, Cataquet pleaded to the PCRA court, and argues before this Court, that he sought to file a direct appeal, but that the public defender failed to address his application for representation and the appeal. Consequently, no direct appeal was ever filed. See Motion for Waiver at 2; Brief for Cataquet at 6. While Cataquet's pleading is muddled, we recognize that he has been left to fend for himself by PCRA counsel's withdrawal. Because Cataquet challenges the propriety of PCRA counsel's withdrawal, it would be unfair to hold the consequences of that withdrawal against him. Although we have held that pro se status "confers no special benefit on an appellant, " subject to that caveat we nonetheless have indicated that we are "willing to construe liberally materials filed by a pro se litigant." Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003). In this instance, the lack of clarity in Cataquet's Motion for Waiver lies chiefly in Cataquet's intermingling of the denial of his appeal with other issues. As well, trial counsel was permitted to withdraw before the trial court resolved Cataquet's motion for reconsideration of his sentence, when Cataquet's appellate rights had not yet ripened. This left Cataquet without any representation to pursue his appeal.
This turn of events goes to the very heart of an important constitutional right jealously protected by our case law and the binding case law of the United States Supreme Court. See, e.g., Evitts; Lantzy, supra. Moreover, Cataquet's Motion for Waiver was before the PCRA court for several months before the court dismissed Cataquet's petition without a hearing and without any documented review of whether Cataquet improperly had been denied a direct appeal of his judgment of sentence. In connection with the PCRA court's obligation to review the record independently before permitting counsel to withdraw or dismissing Cataquet's petition without a hearing, we find that the PCRA court erred in failing materially to address this contention either in connection with a summary dismissal or following a full and fair hearing at which Cataquet could have sought to establish an evidentiary basis for his allegations in this regard.
For the foregoing reasons, neither the PCRA court nor we have the benefit of a factual record upon which to assess whether Cataquet's constitutional right to a direct appeal was violated in this case. Consequently, we must remand this case for the PCRA court to conduct further proceedings in furtherance of developing the necessary record and ruling appropriately on Cataquet's allegations that prior counsel were ineffective in failing to perfect his direct appeal, despite his request that counsel do so.
This leaves us with the question of whether and how to address the balance of Cataquet's issues. It is well-settled that, when an appellant may have been denied a direct appeal that he wished to be filed, the correct remedy is to remand the case for an evidentiary hearing to determine whether this was the case. If the appellant was denied a requested direct appeal, counsel is deemed per se ineffective and the appellant's right to appeal must be restored nunc pro tunc. Commonwealth v. Bronaugh, 670 A.2d 147, 149-50 (Pa. Super. 1995); see Commonwealth v. Hoyman, 561 A.2d 756, 758 (Pa. Super. 1989) (citing Commonwealth v. Ciotto, 555 A.2d 930 (Pa. Super. 1989)) ("Once the [PCRA] court concluded that appellant was denied his right of direct appeal the proper course would have been to grant appellant leave to file a direct appeal nunc pro tunc.").
For the foregoing reasons, we vacate the PCRA court's order in its entirety. We remand to the PCRA court for further proceedings as follows: First, the PCRA court must appoint new counsel, inasmuch as Cataquet is entitled to the assistance of counsel on a first petition under the PCRA, see Pa.R.Crim.P. 904(C), and prior PCRA counsel's stewardship has been challenged, rendering PCRA counsel unfit to resume representing Cataquet. See Rykard, supra. Thereafter, the PCRA court must permit Cataquet, with the assistance of appointed counsel, to amend his PCRA petition. Assuming Cataquet presses ineffectiveness of trial and prior PCRA counsel premised upon the denial of his allegedly requested direct appeal, the PCRA court is directed to conduct an evidentiary hearing to determine the merit of this contention. If, after taking evidence, the PCRA court finds that Cataquet is not entitled to the nunc pro tunc restoration of his right to file a direct appeal, the PCRA court is directed to rule upon any other issues Cataquet includes in his amended petition. As to those other issues, we emphasize that the PCRA court retains discretion to dismiss such issues without the taking of evidence, should the court find that it is appropriate to do so under Rule 907.
Application for relief denied. PCRA Order vacated. Case remanded with instructions.