Com. v. Black, T. ( 2015 )

J-S13011-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS JAMES BLACK,
Appellant No. 715 WDA 2014
Appeal from the PCRA Order Entered March 26, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001125-2012
BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 09, 2015
Appellant, Thomas James Black, appeals pro se from the post-
conviction court’s March 26, 2014 order denying his timely petition for relief
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
After careful review, we are compelled to vacate that order and remand for
further proceedings.
On September 18, 2012, Appellant was convicted by a jury of
attempted murder, aggravated assault, and other related charges. On
November 26, 2012, he was sentenced to an aggregate term of 25 to 50
years’ incarceration. Appellant filed a timely motion for reconsideration of
his sentence, which was denied. He did not file a direct appeal with this
Court.
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On January 1, 2014, Appellant filed a counseled PCRA petition.
Appellant was represented by privately retained counsel, Adam J. Williams,
Esq. In the petition, Appellant requested a new trial, alleging that he
discovered two witnesses who would each proffer ostensibly exculpatory
testimony on Appellant’s behalf. The PCRA court directed the
Commonwealth to file a response to Appellant’s petition, and the
Commonwealth complied. On February 21, 2014, Appellant filed a pro se
document entitled, “Response and Counterstatement to Conflict of Interest
Commonwealth’s Response to Defendant’s Petition for Post Conviction
Collateral Relief.” On March 26, 2014, the PCRA court issued a Pa.R.Crim.P.
907 notice of its intent to dismiss Appellant’s petition, and an opinion
explaining its reasons for that dismissal. Appellant did not file a response to
the court’s Rule 907 notice and, on April 23, 2014, the PCRA court issued an
order dismissing his petition.
On April 24, 2014, Appellant filed a pro se notice of appeal. The Office
of Clerk of Courts of Erie County forwarded a copy of Appellant’s pro se
notice of appeal to Attorney Williams, who was still Appellant’s counsel of
record. See Docket Entry 27, 4/25/14 (“Case Correspondence – Rule 576
letter to Atty Williams in re: Notice of Appeal”). Apparently, Attorney
Williams sent a letter to the Clerk of Courts stating that he no longer
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represented Appellant.1 See Docket Entry 28, 4/30/14 (“Case
Correspondence from Attorney Adam Williams informing us that he is no
longer representing the defendant”). Accordingly, the Clerk of Courts
accepted Appellant’s pro se notice of appeal and forwarded a copy thereof to
this Court. See id.
Appellant is now before this Court pro se. However, there is no
indication in the certified record that Attorney Williams sought (or was
granted) leave of court to withdraw his representation of Appellant. See
Pa.R.Crim.P. 120(A)(4) (“An attorney who has been retained or appointed by
the court shall continue such representation through direct appeal or until
granted leave to withdraw by the court pursuant to paragraph (B).”);
Pa.R.Crim.P. 120(B)(1) (“Counsel for a defendant may not withdraw his or
her appearance except by leave of court.”). The Comment to Rule 120
states that “counsel must file a motion to withdraw in all cases, and
counsel’s obligation to represent the defendant, whether retained or
appointed counsel, remains until leave to withdraw is granted by the court.”
Comment to Rule 120 (emphasis added) (citing Commonwealth v.
Librizzi, 810 A.2d 692, 693 (Pa. Super. 2002)).
We also emphasize that it is unclear from the record whether Appellant
is currently indigent and, therefore, entitled to court-appointed counsel to
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1
That letter is not included in the certified record.
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represent him in the current appeal. See Pa.R.Crim.P. 904(C) (“[W]hen an
unrepresented defendant satisfies the judge that the defendant is unable to
afford or otherwise procure counsel, the judge shall appoint counsel to
represent the defendant on the defendant’s first petition for post-conviction
collateral relief.”); Commonwealth v. Stout, 978 A.2d 984, 988 (Pa.
Super. 2009) (“Generally speaking, an indigent petitioner is entitled to the
appointment of counsel on his first post-conviction attack of his
conviction.”); Commonwealth v. Jackson, 965 A.2d 280, 283 (Pa. Super.
2009) (stating that the indigent petitioner’s right to PCRA counsel extends
through the appeal process).
We acknowledge that in Appellant’s pro se brief, he does not argue
that he is entitled to court-appointed counsel, or raise any issue regarding
Attorney Williams’ failure to represent him on appeal. Nevertheless, we
decline to overlook Attorney Williams’ failure to properly withdraw his
representation of Appellant as the Pennsylvania Rules of Criminal Procedure
require. More importantly, we are compelled to raise the issue of Appellant’s
representation sua sponte to ensure that he is afforded the right to court-
appointed PCRA counsel, if he is so entitled. See Commonwealth v.
Albrecht, 720 A.2d 693, 699 (Pa. 1998) (citation omitted) (stating that
“[t]he denial of PCRA relief cannot stand unless the petitioner was afforded
the assistance of counsel”); Commonwealth v. Stossel, 17 A.3d 1286,
1290 (Pa. Super. 2011) (holding “that where an indigent, first-time PCRA
petitioner was denied his right to counsel - or failed to properly waive that
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right – this Court is required to raise this error sua sponte and remand for
the PCRA court to correct that mistake). Accordingly, we vacate the PCRA
court’s order and remand for further examination of these issues by the
PCRA court.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2015
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