Com. v. Hackley, C. ( 2023 )

J-S41018-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES WILLIAM HACKLEY :
:
Appellant : No. 125 MDA 2022
Appeal from the PCRA Order Entered November 30, 2021
In the Court of Common Pleas of Luzerne County
Criminal Division at CP-40-CR-0003539-2017
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED: FEBRUARY 1, 2023
Charles William Hackley (Appellant) appeals from the order denying his
first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. Consistent with our Supreme Court’s decision in
Commonwealth v. Parrish, 224 A.3d 682 (Pa. 2020), we remand so that
Appellant may file a Rule 1925(b) statement nunc pro tunc.
On August 7, 2018, the trial court convicted Appellant of “several
offenses related to a drug sale.” Commonwealth v. Hackley, No. 1769 MDA
2018, at *1 (Pa. Super. Ct. Sept. 23, 2019) (unpublished memorandum). The
trial court sentenced Appellant on September 20, 2018. Appellant timely
appealed, and this Court affirmed the judgment of sentence. See id.____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S41018-22
Appellant timely filed a pro se PCRA petition on August 17, 2020. Two
days later, the PCRA court appointed Jeffrey Yelen, Esquire, to represent
Appellant. The PCRA court explained:
Through [Attorney Yelen, Appellant] filed a supplemental petition
and request for hearing on September 4, 2020. The
Commonwealth filed a response to [Appellant’s] petition on
November 27, 2020. A PCRA hearing was held on April 13, 2021.
[Appellant’s] petition and supplemental petition were denied and
dismissed on November 30, 2021.
Attorney Yelen filed a “Notice of Appeal/Appeal Nunc Pro
Tunc/Application to Allow Appeal Nunc Pro Tunc on January 4,
2022. On January 12, 2022, th[e PCRA] court granted
[Appellant’s] Application to Allow a Nunc Pro Tunc Appeal and
directed [Appellant] to file a Concise Statement of Errors
Complained of on Appeal pursuant to Pa.R.A.P. 1925(b)
(“Statement”). On January 13, 2022, Attorney Yelen sought to
withdraw as counsel and requested this court appoint appellate
counsel for [Appellant]. The motion was granted and Michael
Kostelaba, Esquire, was appointed counsel for [Appellant] on
January 24, 2022. Attorney Kostelaba entered his appearance on
January 26, 2022. [Appellant] neither filed a Statement or a
motion requesting an extension of time to do so.
Upon consideration of [Appellant’s] failure to properly file a
Statement, it would appear that there are no issues preserved for
appellate review. See Commonwealth v. Butler, 812 A.2d 631(Pa. 2002); Commonwealth v. Lord, 719 A. 2d 306 (Pa. 1998);
Pa.R.A.P. 1925(b). …
However, this court respectfully recognizes that the
Superior Court may choose to remand the matter to this court.
See Commonwealth v. Parrish, 224 A.3d 682, 702 (Pa. 2020)
(“[W]henever post-conviction counsel’s performance is so
deficient that it has entirely denied the post-conviction petitioner
the right to appeal, remand to the lower court is the
appropriate remedial action so that new counsel can take
the necessary steps to restore that right.”)
PCRA Court Opinion, 3/3/22, at 2-3 (emphasis added).
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Attorney Kostelaba subsequently filed a motion to withdraw as counsel. The
PCRA court granted the motion and appointed Appellant’s current attorney,
Matthew P. Kelly, Esquire, to represent Appellant. Order, 4/28/22.
Appellant presents the following claim:
I. No Concise Statement of Matters Complained of on Appeal
pursuant to Pa. R.A.P. 1925(b) was filed.
Appellant’s Brief at 1.
Like the PCRA court, Appellant cites Parrish, and “respectfully requests
this matter be remanded to the PCRA court so that undersigned counsel can
file an appropriate 1925(b) Statement.” Id. at 4. The Commonwealth argues
waiver, but concedes:
Parrish stands for the proposition that, where postconviction
counsel’s performance is so deficient that he has entirely denied
the post-conviction petitioner the right to appeal, remand to the
lower court is the appropriate remedial action so that new counsel
can take the necessary steps to restore that right.
Commonwealth Brief at 8, citing Parrish, 224 A.3d at 702.
The PCRA court has issued an opinion. However, the Supreme Court in
Parrish addressed the PCRA court being “forced … to guess which of its rulings
were being challenged,” and explained that
waiver of all appellate issues is mandated by
Pa.R.A.P. 1925(b)(4)(vii), which provides that “[i]ssues ... not
raised in accordance with the provisions of this paragraph (b)(4)
are waived.” Pa.R.A.P. 1925(b)(4)(vii).
This conclusion is not altered by the fact that the PCRA court
authored an opinion addressing a large number of the
ineffectiveness claims raised in [a]ppellant’s four amended PCRA
petitions. … [T]he mere fact that a court has authored an opinion
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addressing potential appellate issues does not excuse an appellant
from complying with Pa.R.A.P. 1925(b). As [a]ppellant has
cogently argued, the burden is on appellate counsel to comply
with Rule 1925(b), and it is not the trial court’s responsibility to
assume that burden and identify potential appellate issues and
frame them for a litigant in an opinion without receiving any
guidance from appellate counsel. Pa.R.A.P. 1925(b)(4)(ii)
establishes the minimum guidance appellate counsel must provide
to the trial court about the specific issues he or she will be
pursuing on appeal, and, consequently, plays a vital role in
facilitating the appellate process.
Parrish, 224 A.3d at 700.
Accordingly, we are compelled to remand so that Appellant may file a
Rule 1925(b) statement within 21 days of the filing of this decision. The PCRA
court shall have the option of filing a supplemental Rule 1925(a) opinion within
30 days of Appellant filing his Rule 1925(b) statement.
Case remanded with instructions. Jurisdiction retained.
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