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Commonwealth v. Wooden

Superior Court of Pennsylvania

July 19, 2019

COMMONWEALTH OF PENNSYLVANIA
v.
STEVE T. WOODEN, Appellant

          Appeal from the PCRA Order February 26, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009452-2007

          BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

          OPINION

          MURRAY, J.

         Steve T. Wooden (Appellant) appeals pro se from the order dismissing his first petition filed pursuant to the Post Conviction Relief Act[1] (PCRA). Consistent with the requests of both the PCRA court and the Commonwealth, we vacate the order because the PCRA court did not provide Appellant with notice pursuant to Pennsylvania Rule of Criminal Procedure 907. Accordingly, we remand for further proceedings.

         On April 14, 2008, Appellant pled guilty to attempted rape and robbery.[2]On October 2, 2008, the trial court determined that Appellant was a sexually violent predator and sentenced him to two terms of 10 to 20 years of imprisonment, to run consecutively, for an aggregate term of 20 to 40 years of imprisonment. The court imposed both sentences "under second strike provisions."[3] Order, 10/2/08. Appellant took a direct appeal, and this Court affirmed his judgment of sentence. Commonwealth v. Wooden, 428 EDA 2011 (Pa. Super. Nov. 4, 2011) (unpublished). Appellant did not seek allowance of appeal with the Pennsylvania Supreme Court.

         On November 1, 2012, Appellant timely filed the underlying PCRA petition pro se, claiming ineffective assistance of counsel and challenging his "second strike" sentence on the basis that he had not been previously convicted of a "crime of violence" as prescribed by 42 Pa.C.S.A. § 9714(a)(1). The trial court docket indicates that during the pendency of the petition, Appellant has been represented by three different attorneys.[4] Beginning in February of 2017, the docket entries reference Appellant's third lawyer, Attorney Sandjai Weaver.

         On September 12, 2017, nearly five years after Appellant filed his pro se petition, Attorney Weaver filed an amended petition on Appellant's behalf, reiterating Appellant's pro se claims of ineffective assistance of counsel and an illegal "second-strike" sentence. This was the last filing by Attorney Weaver, and approximately eight months later, on May 14, 2018, Appellant appears on the record pro se, having filed an inmate document request, and at the same time, a pro se notice of appeal to the PCRA court's February 26, 2018 order dismissing the petition. The trial docket and record do not indicate that Attorney Weaver was granted leave to withdraw from representation. However, we take judicial notice that as of this writing, the Disciplinary Board of the Supreme Court of Pennsylvania has placed Attorney Weaver on administrative suspension. Disciplinary Board of Supreme Court of Pennsylvania, https://www.padisciplinaryboard.org/for-the-public/find- attorney/attorney-detail/55184 (last visited June 26, 2019).

         On February 22, 2018, the Commonwealth filed a motion to dismiss Appellant's PCRA petition.[5] Also on that date, according to the PCRA court, the case was reassigned from Judge Trent to Judge Brinkley. PCRA Court Opinion, 12/19/18, at 1. Nevertheless, four days later, on February 26, 2018, Judge Trent entered the underlying order dismissing the PCRA petition without a hearing. More than 30 days later, on May 14, 2018, Appellant filed the aforementioned pro se notice of appeal and inmate document request. On May 17th, Appellant filed a pro se "attachment," averring that no Pa.R.Crim.P. 907 notice was provided to him or Attorney Weaver prior to the dismissal of his petition. On June 4, 2018, Appellant filed a motion for appointment of counsel.[6] On December 19, 2018, the PCRA court filed its opinion. The docket does not indicate any further response by the PCRA court regarding Appellant's representation - or lack of representation. Appellant has filed a pro se brief with this Court.

         Appellant raises seven issues on appeal. See Appellant's Brief at 2-3. In his first issue, Appellant asserts that the PCRA court "erred and abused its discretion by dismissing Appellant's petition without notice contrary to statute (42 Pa.R.Crim.P § 907) . . . ." Id. at 2. This issue has merit. However, we first address jurisdiction.

         We recognize that the timeliness of Appellant's notice of appeal implicates this Court's jurisdiction. See Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011). Here, Appellant's PCRA petition was dismissed on February 26, 2018. Appellant then had 30 days, or until March 28, 2018, to file a notice of appeal. See Pa.R.A.P. 903(a) (notice of appeal shall be filed within 30 days after entry of the order from which appeal is taken). The pro se notice of appeal was not filed until May 11, 2018.

         On July 2, 2018, this Court issued a per curiam rule to show cause to Appellant as to why the appeal should not be quashed as untimely. Appellant filed a pro se response, averring that neither the PCRA court nor his attorney notified him of the February 26, 2018 dismissal, and he "didn't know that his PCRA was denied on 2/26/18, until May 2018 when he received his dkt. entry report, and when he found out he immediately filed a notice of appeal nunc pro tunc . . . ." Appellant's Response, 7/12/18, at 1. Appellant also averred that he should not be penalized because his attorney abandoned him. Id. at 2. This Court deferred ruling to the merits panel. Order, 7/17/18.

         Preliminarily, we note that although Attorney Weaver has remained as counsel of record, it was proper for both the trial court clerk and this Court's Prothonotary to docket Appellant's pro se notice of appeal. See Pa.R.Crim.P. 576(A)(4) (if a represented criminal defendant submits for filing a written notice that has not been signed his attorney, the clerk of courts shall accept it for filing, and a copy of the time-stamped document shall be forwarded to the defendant's attorney and the Commonwealth within 10 days); Superior Ct. O.P. § 65.24 (pro se notice of appeal received from trial court shall be docketed, even where appellant is represented by counsel); Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016) (although hybrid representation is not permitted, a notice of appeal protects a constitutional right and is distinguishable from other filings that require counsel to provide legal knowledge and strategy, and thus this Court is required to docket a pro se notice of appeal despite appellant being represented by counsel).

         Moreover, upon careful review, the record appears to support Appellant's claim regarding the abandonment of counsel, whose last documented action of record was the filing of Appellant's amended PCRA petition on September 12, 2017. Our Supreme Court, with respect to the role of appointed counsel in PCRA proceedings, has stated:

As part of the PCRA process, indigent petitioners may apply for the assistance of counsel for purposes of their first PCRA petition. We have held this rule to be absolute inasmuch as we have concluded that a petitioner need not establish that his petition is timely before he or she is entitled to the appointment of counsel. See, e.g., Commonwealth v. Smith,818 A.2d 494 ([Pa.] 2003). To this end, it can be assumed that the PCRA court will appoint appropriate counsel, i.e., counsel that can and will raise potentially meritorious claims. In this same vein, while the performance of PCRA counsel is not necessarily scrutinized under the Sixth Amendment, the performance of counsel must comply with some minimum norms, which would include not abandoning a client for purposes of appeal. See ...

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