Com. v. Baker, B. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRANDON S. BAKER
Appellant No. 320 WDA 2017
Appeal from the PCRA Order Dated December 7, 2016
In the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-CR-0000481-2015
CP-56-CR-0000639-2006
BEFORE: BOWES, J., SOLANO, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SOLANO, J.: FILED DECEMBER 26, 2017
Appellant Brandon S. Baker appeals from the order dismissing his first
petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546, in two separate cases, Docket Number CP-56-CR-0000639-
2006 and Docket Number CP-56-CR-0000481-2015. Appellant’s counsel
also filed a Turner/Finley1 petition to withdraw and Appellant has filed a
pro se “Emergency Petition for the ‘Writ of Habeas Corpus.’” The appeal
from the order at Docket No. 639-06 is quashed. For Docket No. 481-15,
after careful review, we deny counsel’s petition to withdraw and order
counsel to file an advocate’s brief or a new Turner/Finley brief within thirty
days of the date of this memorandum. The Commonwealth may file a brief
within thirty days after service of the brief from Appellant’s counsel.
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1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Additionally, we forward Appellant’s “Emergency Petition for the ‘Writ of
Habeas Corpus’” to counsel for further action.
On March 6, 2007, at Docket No. 639-06, Appellant pleaded guilty to
driving under the influence (“DUI”) of alcohol in violation of Section 3802(c)
of the Vehicle Code (highest rate of alcohol, blood alcohol concentration
(“BAC”) of 0.16% or higher, second offense). See 75 Pa. C.S. 3802(c). On
May 3, 2007, Appellant was sentenced to confinement for four months to
five years. N.T., 5/3/07, at 11.2 On July 8, 2015, Appellant’s parole was
revoked, and he was ordered “to serve the balance of his sentence.” Order,
7/8/15, at 1.
For Docket No. 481-15, we adopt the facts and procedural history as
described by the PCRA court:
The record reflects that [Appellant] entered a negotiated plea of
guilty to one count of Driving Under the Influence, a fourth
offense under 75 Pa. C. S. A. § 3802(a)(1) with a refusal to
undergo blood alcohol testing, graded as a misdemeanor of the
first degree. On January 7, 2016, he was sentenced to serve not
less than 12 months nor more than 5 years in a State
Correctional Institution. In addition, because this was
[Appellant]’s third offense, his sentence included a mandatory
minimum sentence of one year incarceration pursuant to 75 Pa.
C. S. A. § 3803(b)(2). No post sentence motions or appeal were
filed.
PCRA Ct. Mem., 12/27/16, at 1 (not paginated).
On August 4, 2016, Appellant, acting pro se, filed a PCRA petition that
listed both Docket Nos. 639-06 and 481-15. In that petition, for Docket No.
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2
Appellant was also sentenced on two additional DUIs, all on separate
dockets, on that date.
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481-15, Appellant contended that he was entitled to relief because police
“did not obtain a search warrant . . . to draw blood from a person[’]s body
for the level of BAC in a conviction” and should not have obtained his
“medical records [without] consent and[/]or order of the court.” Pro se
PCRA Pet., 8/4/16, at 2 (not paginated). Appellant continued that he “in fact
had a right to refuse under the 4th Amendment,” citing to Birchfield v.
North Dakota, 136 S. Ct. 2160 (2016). Pro se PCRA Pet., 8/4/16, at 3.3
Appellant also argued that his “medical records are protected by federal and
state regulations,” specifically the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”) and “PA code 255, Pa code 257, and
Act 63.” Id. Appellant further alleged “[e]rrors” in “sentencing,” including
that he received “[e]nhanced penalties for refusal” at both Docket Nos. 639-
06 and 481-15. Id. at 2-4. Finally, he requested “[d]iscovery information”
for Docket No. 481-15. Id. at 4.
On August 9, 2016, the PCRA court appointed private counsel,
Megan Will, Esquire, to represent Appellant for the cases at both docket
numbers. Order, 8/9/16, at 1. PCRA counsel did not file an amended PCRA
petition for either case.
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3
Although Appellant’s pro se PCRA petition never specifically named
Birchfield v. North Dakota, he cited to United State Supreme Court docket
numbers 14-1468, 14-1470, and 14-1507, which were the docket numbers
for Birchfield and the two other cases consolidated with Birchfield, and he
included the date Birchfield was decided, June 23, 2016. Pro se PCRA Pet.,
8/4/16, at 3, 5.
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On November 29, 2016, the PCRA court denied relief for the claim
Appellant raised regarding Docket No. 639-06. The court served this order
on PCRA counsel, who did not file a notice of appeal.
Following a hearing on the PCRA petition for Docket No. 481-15, the
PCRA court “took the matter under advisement[.]” PCRA Ct. Mem.,
12/27/16, at 2. On December 27, 2016, the PCRA court dismissed the PCRA
petition for Docket No. 481-15 and filed a memorandum in support of its
order. Based upon the copies of that December 27, 2016 order and the
docket in the certified record, it appears that PCRA counsel was not served
with the December 27, 2016, order, although a copy apparently was mailed
to Appellant on December 29, 2016.4 PCRA counsel never filed a notice of
appeal.
On December 29, 2016, Appellant mailed a letter to the Clerk of
Courts asking for an update on Docket No. 481-15. On January 3, 2016, the
Clerk of Courts sent Appellant a copy of the docket and a “court summary”
for Docket No. 481-15. Service is shown on both the docket and in a
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4
The docket states that copies of the PCRA court’s memorandum and order
were served on “Somerset County Adult Probation Unit,” “Somerset County
District Attorney’s Office,” “Somerset County Prison,” “Somerset County
Public Defender’s Office,” and “Baker, Brandon Scott Sr.” All of these
recipients are listed as served via interoffice mail, except for “Baker,
Brandon Scott Sr.,” who is listed as having been served via first class mail.
The docket does not state that the memorandum and order were served on
Appellant’s PCRA counsel, who was private counsel and not an attorney with
the public defender’s office.
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handwritten note on the bottom of the Clerk’s letter, but the record does not
reflect service on Appellant’s counsel.
On February 7, 2017, Appellant filed this appeal. Appellant’s pro se
notice of appeal listed both Docket Nos. 639-06 and 481-15.
Subsequently, Appellant filed a pro se petition for an extension of time
to file a brief and for appointment of counsel. On March 23, 2017, this Court
entered the following order:
AND NOW, upon consideration of Appellant Baker’s pro se
March 17, 2017 “Petition for Extension of time to File Brief and
Appointed Counsel,” and upon review of the lower court docket
noting Megan E. Will, Esquire, was appointed to represent
Appellant on August 9, 2016, and as there is no indication that
counsel was granted permission to withdraw, the following is
hereby ORDERED: the record is REMANDED to the trial court
for a period of time not to exceed thirty (30) days during which
time the trial court shall make a determination as to the status
of Appellant's counsel. If Appellant has counsel, then counsel
shall enter her appearance in this Court forthwith. If Appellant is
not currently represented by counsel, but is entitled to the
appointment of counsel, the trial court shall appoint counsel.
The lower court shall notify this Court, within thirty days, of any
actions taken thereon. The briefing schedule is SUSPENDED
and a new briefing schedule shall be set upon the return of the
record to this Court. Jurisdiction of this Court is RETAINED.
Order, 3/23/17 (emphasis in original).
On April 11, 2017, the PCRA court “determined that Ms. Will has not
withdrawn her representation, and therefore she continues to represent
[Appellant] on the record.” Order, 4/11/17, at 2.
On May 3, 2017, at 9:41 A.M., Appellant, pro se, filed a Pa.R.A.P.
1925(b) statement raising seventeen issues, some of which were
substantially identical to each other. Some of these issues were not raised
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in his PCRA petition. Some issues related only to his case at Docket No.
639-06. Later that morning, at 11:20 A.M., PCRA counsel filed a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
raising the following issues:
Whether the [PCRA c]ourt was incorrect that:
1. The Appellant’s privacy rights were violated, as
enumerated under the Health Insurance Portability and
Accountability Act of 1996 when his medical records were
sent without his consent to the Commonwealth of
Pennsylvania to aid in his prosecution.
2. The Appellant was illegally sentenced in the
aforementioned cases.
On May 8, 2017, PCRA counsel filed a Turner/Finley letter and brief
with this Court, along with a motion to withdraw as counsel.5 This counseled
brief to this Court raised the following issue:
Whether the [PCRA] court’s findings concerning Appellant’s
[PCRA] petition were supported by the record, such that the
[PCRA] court’s legal conclusions that Appellant was not illegally
sentenced and his rights of privacy were not violated were
appropriate.
Turner/Finley Brief at 7. Except for a bald heading that “the [PCRA] court’s
dismissal of Appellant’s PCRA was not supported by the record as Appellant
was illegally sentenced and his rights of privacy under HIPAA were violated,”
the Turner/Finley brief cites no legal authority and merely argues why
counsel believes Appellant’s PCRA petition to be frivolous:
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5
Counsel’s Turner/Finley brief attached counsel’s Rule 1925(b) statement
and pro se Appellant’s Rule 1925(b) statement, which suggests counsel was
aware of the issues Appellant wished to raise on appeal.
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[Appellant]’s sentence falls within the standard guidelines for the
offense committed and the challenge to this sentence occurred
some thirteen (13) months after Appellant was sentenced. As
such, the sentence was appropriately granted by the [trial c]ourt
and his claim is untimely . . .
The record is clear that [the Chemical Testing Warning and
Report of Refusal to Submit a Chemical Testing as Authorized by
Section 1547 form, a document forming the basis for Appellant’s
HIPAA issue,] was not a form that would give rise to HIPAA
protections or that would, in any way, be violative of Appellant’s
rights to privacy. The [PCRA c]ourt’s dismissal is wholly
supported by the record and the conclusions of law were
appropriate.
Id. at 13. Counsel concluded that Appellant’s “claim of an illegal sentence is
untimely and the form in question is not a form protected by HIPAA.” Id. at
14. The Turner/Finley brief did not address the issue raised in Appellant’s
pro se PCRA petition — whether Appellant was subjected to enhanced
sentences for refusing to submit to a blood test without a search warrant in
violation of the Fourth Amendment and Birchfield, 136 S. Ct. 2160. See
Pro se PCRA Pet., 8/4/16, at 2-3, 5; see also Pro se Statement at 1-2 ¶¶ 4-
5.
On May 12, 2017, Appellant, pro se, filed an application for
appointment of counsel. This Court denied the application on May 30, 2017.
On May 31, 2017, the PCRA court filed an order that its memorandum
of December 27, 2016, would serve as its opinion pursuant to Pa.R.A.P.
1925(a).
On June 21, 2017, the Commonwealth filed its brief with a one-
sentence argument: “Appellant’s PCRA petition was properly dismissed for
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reasons discussed in Appellant’s brief and the [PCRA] court’s Order and
Memorandum dated December 27, 2016.” Commonwealth’s Brief at 2.
On June 27, 2017, Appellant filed a pro se appellate brief. On
November 13, 2017, Appellant, pro se, filed in this Court an “Emergency
Petition for the ‘Writ of Habeas Corpus,’” contending that his sentences are
illegal and should be vacated. Emergency Pet. for the “Writ of Habeas
Corpus,” 11/13/17, at 1-3. On November 30, 2017, the Commonwealth
filed a response to the “Emergency Petition.”
Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
by the record evidence and free of legal error. Commonwealth v. Wilson,
824 A.2d 331, 333 (Pa. Super.) (en banc), appeal denied, 839 A.2d 352(Pa. 2003); see also Commonwealth v. Andrews, 158 A.3d 1260, 1262-
63 (Pa. Super. 2017).
The Appeal Regarding Docket No. 639-06
Pa.R.A.P. 341 requires that separate notices of appeal be filed from
cases at different docket numbers. Appellant’s notice of appeal stated that it
was “from the order entered in this matter on the 27th day of December,
2016[.]” No order was entered at Docket No. 639-06 on December 27,
2016. The PCRA petition at No. 639-06 was dismissed on November 29,
2016, and, although PCRA counsel was served with that order, no notice of
appeal was timely filed from that order. Thus, insofar as Appellant’s appeal
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seeks to raise issues regarding the order dismissing his PCRA petition at
Docket No. 639-06, we do not consider it.6
The Appeal Regarding Docket No. 481-15
Jurisdiction
Appellant’s pro se appeal from the PCRA court’s December 27, 2016
order dismissing his petition at Docket No. 481-15 was filed on February 7,
2017. Because an appeal must be filed no later than thirty days after entry
of the order from which the appeal is taken, Pa.R.A.P. 903(a), Appellant’s
appeal is untimely. We decline to dismiss it, however, because it is apparent
that there was a breakdown in the PCRA court’s operations that resulted in a
failure to properly serve Appellant’s counsel with notice of the December 27,
2016 order. We therefore deem Appellant’s February 7, 2017 appeal to be
properly before this Court.
Petition to Withdraw as Counsel
Before we review Appellant’s claim, we must ascertain whether
counsel satisfied the requirements to withdraw. Commonwealth v.
Freeland, 106 A.3d 768 (Pa. Super. 2014). The Court in Freeland
explained:
The Turner/Finley decisions provide the manner for post-
conviction counsel to withdraw from representation. The
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6
Appellant, within sixty days of this Court’s disposition of the instant PCRA
petition, may file another PCRA petition addressing whether PCRA counsel
should have filed a notice of appeal for Docket No. 639-06.
Commonwealth v. Hernandez, 79 A.2d 649, 651-52 (Pa. Super. 2013);
see 42 Pa.C.S. § 9545(b)(2).
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holdings of those cases mandate an independent review of the
record by competent counsel before a PCRA court or appellate
court can authorize an attorney’s withdrawal. The necessary
independent review requires counsel to file a “no-merit” letter
detailing the nature and extent of his review and list each issue
the petitioner wishes to have examined, explaining why
those issues are meritless. The PCRA court, or an appellate
court if the no-merit letter is filed before it, see Turner,
supra, then must conduct its own independent evaluation of the
record and agree with counsel that the petition is without merit.
In [addition,] counsel is required to contemporaneously serve
upon his client his no-merit letter and application to withdraw
along with a statement that if the court granted counsel’s
withdrawal request, the client may proceed pro se or with a
privately retained attorney.
Freeland, 106 A.3d at 774-75 (emphasis added; citations omitted).
Neither the Turner/Finley “no-merit” letter to Appellant nor the
Turner/Finley Brief to this Court list all of the issues that, according to
Appellant’s pro se PCRA petition, Appellant wishes to have examined; nor do
they explain why PCRA counsel believes those issues to be meritless. See
Freeland, 106 A.3d at 774-75 (the “no-merit” letter must “list each issue
the petitioner wishes to have examined” (emphasis added)). In
particular, Appellant alleged in his PCRA petition that he was subject to
enhanced sentences for refusing to submit to a blood test without a search
warrant in violation of the Fourth Amendment and Birchfield, 136 S. Ct.
2160. Pro se PCRA Pet., 8/4/16, at 2-4. This issue is not addressed in PCRA
counsel’s Turner/Finley “no-merit” letter or brief.
Appellant also contends that his sentence improperly included a
mandatory minimum. See Pro se PCRA Pet., 8/4/16, at 2 (“[e]rrors
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sentencing [within] the para[m]eters”). Although the Turner/Finley Brief,
at 13, states that “[Appellant]’s sentence falls within the standard guidelines
for the offense committed” and that “the challenge to this sentence occurred
some thirteen (13) months after Appellant was sentenced,” Turner/Finley
Brief at 13, counsel does not otherwise explain why Appellant’s mandatory
minimum sentence claim does or does not lack merit.
Finally, Appellant alleged that the Commonwealth is in violation of
HIPAA. PCRA Pet., 8/4/16, at 2. Although PCRA counsel briefly states that
“[t]he record is clear that [the Chemical Testing Warning and Report of
Refusal to Submit a Chemical Testing as Authorized by Section 1547 form]
was not a form that would give rise to HIPAA protections or that would, in
any way, be violative of Appellant’s rights to privacy,” Turner/Finley Brief
at 13, she does not explain why Appellant’s issue lacks merit.7
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7
On this issue, the PCRA court wrote:
Turning to the HIPAA issue, we note that the document
challenged by [Appellant] is not a document produced or
provided by a medical facility. Rather a form identified as a DL-
26, “Chemical Testing Warnings and Report Of Refusal To Submit
To Chemical Testing . . .” is the document in question which was
marked and admitted, without objection, as Commonwealth’s
Exhibit “A” during the hearing in this matter. There is nothing in
the record or on the Exhibit itself which suggests that this is
anything other than a document prepared by the arresting
Trooper which, inter alia, memorializes that the Trooper read the
implied consent information to [Appellant] and that [Appellant]
refused to submit to a chemical test of his blood. We find
nothing in this record nor in the arguments of counsel, which
establishes that this is a document protected by HIPAA.
Accordingly, we find no merit in this argument.
(Footnote Continued Next Page)
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Because PCRA counsel’s Turner/Finley “no-merit” letter and brief
failed to comply with the requirements articulated in Freeland, 106 A.3d at
774-75, we deny counsel’s petition to withdraw and order counsel to submit
either an advocate’s brief or a new Turner/Finley brief within thirty days of
the date of this memorandum that fully complies with the requirements set
forth in Freeland. The Commonwealth may file a brief within thirty days of
service of the brief from Appellant’s counsel.8
Appellant’s Emergency Petition for “Writ of Habeas Corpus”
Appellant’s November 13, 2017 pro se “Emergency Petition for the
‘Writ of Habeas Corpus,’” contends that his sentences are illegal and should
be vacated. Emergency Pet. for the “Writ of Habeas Corpus,” 11/13/17, at
1-3. Because we deny counsel’s petition to withdraw and are ordering
counsel to file an advocate’s brief or a compliant Turner/Finley brief, we
refer Appellant’s pro se petition to counsel for further action. See
Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (stating, “we
reiterate that the proper response to any pro se pleading is to refer the
pleading to counsel, and to take no further action on the pro se pleading
unless counsel forwards a motion” to change counsel).
_______________________
(Footnote Continued)
PCRA Ct. Mem., 12/27/16, at 3.
8
If the Commonwealth does not intend to file a brief in response, we
request that the Commonwealth send a letter to this Court’s Prothonotary
informing this Court of that decision as soon as possible.
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The appeal from the order at Docket No. 639-06 is quashed. With
respect to the appeal from the order at Docket No. 481-15, we order the
following: counsel’s petition to withdraw denied; Appellant’s pro se petition
referred to counsel; Appellant’s counsel ordered to file an advocate’s brief
or a new Turner/Finley brief within thirty days of the date of this
memorandum, after which the Commonwealth may file a brief within thirty
days of Appellant’s counsel’s brief. Jurisdiction retained.
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