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[U] Commonwealth v. Cataquet

Superior Court of Pennsylvania

March 10, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
JOHN CATAQUET Appellant

NON-PRECEDENTIAL DECISION

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. [*]

MEMORANDUM

WECHT, 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 Nonetheless, on February 25, 2010, trial counsel, whose appearance already had been withdrawn, filed a motion for reconsideration of sentence that was denied by the trial court on March 8, 2010.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.[1]

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.[2] We proceed accordingly.[3]

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.[4] 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 ...

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