Com. v. Samuel, J. ( 2023 )

J-A29023-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JERMAINE SAMUEL :
:
Appellant : No. 173 WDA 2022
Appeal from the PCRA Order Entered January 19, 2022
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0000667-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JERMAINE SAMUEL :
:
Appellant : No. 174 WDA 2022
Appeal from the PCRA Order Entered January 19, 2022
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0002674-2011
BEFORE: BENDER, P.J.E., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY OLSON, J.: FILED: February 14, 2023
Appellant, Jermaine Samuel, appeals from the order entered on January
19, 2022, dismissing as untimely Appellant’s second petition filed pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We vacate
and remand for the appointment of PCRA counsel.
A prior panel of this Court set forth the facts of this case as follows:
J-A29023-22
[The case began as a] result of an investigation by the Office of
the Attorney General of Pennsylvania into an operation in which
[Appellant] and multiple other people conspired to bring large
quantities of cocaine from Baltimore[, Maryland] to Pennsylvania
for distribution in Altoona. The investigation included the use of
confidential informants and multiple means of electronic
surveillance, including body wires on the confidential informants
and wiretaps and pen registers on at least four telephone
numbers. The investigation resulted in 12 arrests.[1] During his
week-long trial, the evidence established that [Appellant]
coordinated and received quantities of cocaine from Maryland,
warehoused them in an office above a bar in Altoona, cut the drugs
and repackaged them for sale to particular street-level dealers.
[Appellant] was convicted of [numerous counts of possession with
intent to deliver narcotics, criminal use of a communication
facility, dealing in unlawful proceeds and corrupt organizations2]
and sentenced to an aggregate term of 46 ½ to 103 years of
incarceration.
Commonwealth v. Samuel, 102 A.3d 1001, 1003 (Pa. Super. 2014). This
Court affirmed Appellant’s judgment of sentence by opinion entered on
October 17, 2014. See id. On March 22, 2016, our Supreme Court denied
further review. Commonwealth v. Samuel, 134 A.3d 56 (Pa. 2016).
Thereafter, the PCRA court explains the procedural history of this matter
as follows:
[Appellant] filed a timely PCRA petition [on] May 3, 2016. [The
PCRA] court granted [relief on] the PCRA petition on the issue of
sentencing, and denied [relief] on [] issue[s pertaining to]
ineffective assistance of counsel. The Commonwealth appealed
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1 “The Commonwealth presented information regarding the investigation to
the Thirty-Third Statewide Investigating Grand Jury seated in Harrisburg,
Pennsylvania, which issued its presentment [on] February 16, 2012.” PCRA
Court Opinion, 1/19/2022, at 1.
2 35 P.S. § 780–113(a)(30); 18 Pa.C.S.A. §§ 7512(a), 5111, and 911(b)(3).
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[the] sentencing decision but ultimately discontinued the
appeal.[3]
[The trial] court re-sentenced [Appellant] on June 24, 2020.[4]
Following resentencing, PCRA counsel filed a timely notice of
appeal [] as well as a motion to withdraw as counsel. Her
withdrawal as counsel was permitted on September 18, 2020, and
following a Grazier[5] hearing on January 25, 2021, [Appellant
received] permission to represent himself [pro se]. [On January
25, 2021, while Appellant’s direct appeal from his June 2020
sentence was pending and upon Appellant’s pro se request to
“amend the appeal filed by his previous counsel,” the trial court
entered an order instructing Appellant to ask this Court for a
remand of the matter because it “believe[d] it ha[d] lost
jurisdiction and [could not] rule on [Appellant’s request to amend]
and that [Appellant] must request [this Court] to remand this case
[] for [the trial court’s] consideration.”] In a motion to withdraw
[the] appeal filed [on] March 11, 2021, [Appellant] instead asked
the Superior Court to withdraw his appeal in its entirety.[6]
[Appellant] filed various pro se motions following the
discontinuance of his appeal, including a motion for
compassionate release due to Coronavirus, filed February 8,
2021; [an amended post-trial motion filed May 26, 2021; and,] a
motion for judgment of acquittal, filed July 9, 2021[. the PCRA
court treated the latter two motions as petitions filed under the
PCRA and convened] a hearing on these [submissions] on October
20, 2021 [wherein Appellant] appeared pro se.
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3 From our review of the certified record, it does not appear that Appellant
appealed from the denial of relief pertaining to his claims of ineffective
assistance of counsel.
4 The trial court resentenced Appellant to an aggregate sentence of 20 to 40
years of incarceration with eligibility for the Recidivism Risk Reduction
Incentive (RRRI), see 61 Pa.C.S.A. § 4501 et seq.
5 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
6 From our review of the certified record and the PCRA court’s opinion, it is
unclear whether the trial court ruled on any request for amendment of the
appeal after the discontinuance.
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PCRA Court Opinion, 1/19/2022, at 2-3 (unnecessary capitalization omitted).
Although the trial court treated Appellant’s May 26, 2021 and July 9,
2021 filings as pro se petitions under the PCRA, it nonetheless concluded that
the claims advanced in these submissions were time-barred because they
challenged the substantive merits of Appellant’s convictions, not his
newly-imposed sentence, and he filed these claims more than one year after
his original judgment of sentence became final. More simply, the court
determined that the claims set forth in Appellant’s May 26, 2021 and July 9,
2021 filings contravened the PCRA’s one-year jurisdictional deadline. In
concluding that Appellant’s original judgment of sentence in 2017, rather than
his newly-imposed sentence in 2020, governed the timeliness of Appellant’s
claims under the PCRA, the court cited our decisions in Commonwealth v.
McKeever, 947 A.2d 782 (Pa. Super. 2008) and Commonwealth v. DeHart,
730 A.2d 991 (Pa. Super. 1999), where we held that “a successful first PCRA
petition does not ‘reset the clock’ for the calculation of the finality of the
judgment of sentence for purposes of the PCRA where the relief granted in the
first petition neither restored a petitioner's direct appeal rights nor disturbed
his conviction, but, rather, affected his sentence only.” McKeever, 947 A.2d
at 785; see also PCRA Court Opinion, 1/19/2022, at 4-6.
This timely pro se appeal resulted. Appellant filed two separate notices
of appeal, one at each of the docket numbers captioned above, on January
31, 2022. On February 22, 2022, this Court received correspondence from
the PCRA court indicating it had not given Appellant notice of its intent to
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dismiss Appellant’s claims under the PCRA and requesting the cases be
remanded to give proper notice. On March 1, 2022, this Court entered an
order directing the parties to show cause why the PCRA court’s order should
not be vacated and the case remanded. The Commonwealth timely responded
that Appellant’s claims were dismissed following a hearing and, therefore,
notice of intent to dismiss was unwarranted. See Pa.R.Crim.P. 908(D)(1)
“Upon the conclusion of [a] hearing the judge shall determine all material
issues raised by the defendant's petition and […i]f the judge dismisses the
petition, the judge promptly shall issue an order denying relief”). On March
29, 2022, after discovering that a hearing was held wherein Appellant
represented himself pro se, this Court entered an order, corresponding to
each trial court docket, remanding the record and directing the PCRA court to
determine whether Appellant should have had counsel appointed to represent
him. On May 12, 2022, the PCRA court entered what it deemed a “clarifying
order” stating that Appellant expressed a desire to proceed pro se during a
colloquy at a prior hearing in accordance with Grazier. On March 29, 2022,
this Court subsequently discharged the rule to show cause orders and
consolidated the appeals sua sponte.
On appeal pro se, Appellant presents the following issues7 for our
review:
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7 Because we believe Appellant’s issue pertaining to the appointment of PCRA
counsel is dispositive, as discussed at length below, we have reordered
Appellant’s issues for ease of discussion.
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I. Did the lower court err and/or abuse its discretion when
adopting Appellant’s post-sentence motions into a petition
under the [PCRA], then failing to appoint PCRA counsel to
represent Appellant, and for dismissing said PCRA petition
without notice?
II. Did the lower court err and/or abuse of its discretion when
failing to rule on Appellant’s post-sentence motions which
allege severe defects at the very foundation of his conviction
and sentence?
Appellant’s Brief, at 2 (complete capitalization omitted).
Appellant claims that he was entitled the appointment of PCRA counsel.
“Our review of a post-conviction court's grant or denial of relief is limited to
determining whether the court's findings are supported by the record and the
court's order is otherwise free of legal error.” Commonwealth v. Perez, 799
A.2d 848, 850 (Pa. Super. 2002) (citation omitted). The Pennsylvania
Supreme Court has “stated that the rules of criminal procedure require the
appointment of counsel in PCRA proceedings.” Commonwealth v. Smith,
818 A.2d 494, 498 (Pa. 2003) (citation omitted); see also 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.”). “The PCRA mandates that petitions be
filed within one year of the date on which the [j]udgment of [s]entence
becomes final[, the one-year] rule is jurisdictional in nature, and there are
only three narrow exceptions to its application.” Smith, 818 A.2d at 498,
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citing 42 Pa.C.S.A. § 9545 (case citation omitted). However, our Supreme
Court has stated:
Even though the timeliness requirements of the PCRA leave a
court without jurisdiction to consider the merits of an untimely
petition, they do not preclude a court from appointing counsel to
aid an indigent petitioner in attempting to establish an exception
to the time-bar. Although the PCRA court determines the issue of
timeliness prior to reaching the merits of a PCRA petition, the
PCRA court is not divested of its jurisdiction until it analyzes the
facts and makes the determination that the petition is
time-barred. Therefore, an indigent petitioner, who files his first
PCRA petition, is entitled to have counsel appointed to represent
him during the determination of whether any of the exceptions to
the one-year time limitation apply.
Smith, 818 A.2d at 498. “[W]here an appellant's right to representation has
been effectively denied by the action of court or counsel, the petitioner is
entitled to a remand to the PCRA court for appointment of counsel to prosecute
the PCRA petition. The remand serves to give the petitioner the benefit of
competent counsel at each stage of post-conviction review.” Perez, 799 A.2d
at 852. The appointment of counsel under the PCRA is derived from our
procedural rules of court and is therefore distinct from a Sixth Amendment
right to counsel at trial and on direct appeal. See Commonwealth v. Haag,
809 A.2d 271, 282 (Pa. 2002) (“While a PCRA petitioner does not have a Sixth
Amendment right to assistance of counsel during collateral review, this
Commonwealth, by way of procedural rule, provides for the appointment of
counsel during a prisoner's first petition for post[-]conviction relief.”).
“[W]here an indigent, first-time PCRA petitioner was denied his right to
counsel—or failed to properly waive that right—this Court is required to raise
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this error sua sponte and remand for the PCRA court to correct that mistake.”
Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011) (citation
omitted).
Our review of the record confirms that Appellant elected to proceed pro
se and expressly rejected the appointment of counsel at a hearing held on
January 25, 2021. As the court acknowledged, however, the January 25, 2021
hearing was convened within the context of a “direct appeal from
resentencing” and after trial counsel had been permitted to withdraw. See
N.T., 1/25/2021, at 5. As such, Appellant was permitted to represent himself
pro se on direct appeal from resentencing. Ultimately, Appellant withdrew
his direct appeal, on March 11, 2021, thereby concluding that matter and
transforming his 2020 judgment of sentence into a final order. See
Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008)
(judgment of sentence final for PCRA purposes when appeal is discontinued
voluntarily).
Thereafter, Appellant filed three pro se motions filed on February 8,
2021, May 26, 2021, and July 9, 2021. The court determined that the May
26, 2021 and July 9, 2021 submissions should be treated as PCRA petitions
since they were filed after Appellant’s 2020 sentence became final. Because
the May 26, 2021 and July 9, 2021 submissions were filed after Appellant’s
2020 judgment of sentence became final, these filings constituted a first
petition under the PCRA. See Commonwealth v. Lesko, 15 A.3d 345, 374
(Pa. 2011) “[A] petitioner may file a PCRA petition asserting claims related to
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resentencing proceedings within one year of the date that the new judgment
of sentence becomes final.”); see also Commonwealth v. Williams, 828
A.2d 981, 993 (Pa. 2003) (holding petitioner's subsequent PCRA petitions
constituted amendments to first-filed petition, where first petition remained
pending because the court had taken no action). As such, the filings triggered
the automatic appointment of counsel pursuant to Pa.R.Crim.P. 904(C). This
is so even if the claims advanced in those filings might ultimately be deemed
untimely because they challenged the merits of Appellant’s original conviction,
an aspect of Appellant’s original judgment of sentence which became final in
2017 and which did not become subject to new challenges when Appellant
was subsequently awarded relief in the form of resentencing. See Smith,
818 A.2d at 498 (an indigent petitioner is entitled to the appointment of
counsel on a first petition even if the court lacks jurisdiction over its untimely
claims); see also McKeever, 947 A.2d at 785 (collateral relief in the form of
resentencing does not, without establishment of an exception to the timeliness
requirement, resurrect a petitioner’s right to challenge the substantive merit
of his convictions where such claims have become untimely due to the passage
of time). Put differently, after Appellant’s direct appeal from resentencing was
withdrawn and his new judgment of sentence became final, Appellant acquired
a rule-based right to counsel on his first PCRA petition, within which he could
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assert challenges to the legality of his newly-imposed sentence.8 If Appellant
or counsel elects to litigate claims challenging Appellant’s underlying
convictions, the petition will need to plead and prove the application of an
exception to the PCRA’s one-year time bar since those claims are now untimely
and Appellant’s newly-imposed sentence did not restart the clock on
challenges to the merits of Appellant’s convictions.
Rather than undertake a comprehensive waiver colloquy aimed at
ascertaining whether Appellant intended to exercise his rule-based right to
counsel within the context of the newly-initiated collateral relief proceedings,
the court instead simply asked Appellant at a status conference held on July
12, 2021, whether “it [was his] continued wish to represent himself and not
have counsel appointed.”9 N.T., 7/12/2021, at 2. Thereafter, Appellant
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8 We note that Appellant’s pro se claims largely pertain to the grand jury
investigation conducted in this matter. The time to raise such claims on
appeal was when the trial court granted his request for resentencing under
the PCRA and denied relief on his remaining claims. See Pa.R.Crim.P. 910
(“An order granting, denying, dismissing, or otherwise finally disposing of a
petition for post-conviction relief shall constitute a final order for purposes of
appeal.”).
9 We further note that this colloquy was not sufficient. See Commonwealth
v. Robinson, 970 A.2d 455, 459–460 (Pa. Super. 2009) (en banc) (original
brackets omitted) (“[I]f a PCRA defendant indicates a desire to represent
himself, it is incumbent upon the PCRA court to elicit information from the
defendant that he understands the items outlined in Pa.R.Crim.P.
121(A)(2)(a), (d), (e), and (f). A court must explain to a defendant that he
has the right to counsel, in accordance with (a), that he is bound by the rules
as outlined in (d), and that he may lose rights, as indicated in (f). Subsection
(e) must be appropriately tailored so that a defendant is informed that “there
are possible defenses to these charges that counsel might be aware of, and if
(Footnote Continued Next Page)
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represented himself pro se at a subsequent hearing held on October 20, 2021.
The court did not conduct a waiver of counsel colloquy at that hearing.
Here, Appellant’s newly-imposed judgment of sentence became final
when he discontinued his direct appeal following resentencing on March 11,
2021. See McKeever, 947 A.2d 782, 785 (Pa. Super. 2008) (judgment of
sentence final for PCRA purposes when appeal is discontinued voluntarily). As
such, the submissions Appellant subsequently filed on May 26, 2021 and July
9, 2021, qualified as PCRA petitions and represented his first opportunity to
assert collateral challenges to his newly-imposed sentence. See
Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013) (citation
omitted) (“[A]ll motions filed after a judgment of sentence is final are to be
construed as PCRA petitions.”). Appellant was thus entitled, under
Pa.R.Crim.P. 904(C), to the appointment of counsel at that stage of the
newly-initiated collateral proceeding. Because Appellant was entitled to a
separate, rule-based appointment of PCRA counsel under Rule 904(C),
regardless of whether Appellant’s collateral claims were timely, and because
the court failed to vindicate that right (or confirm a valid waiver of that right),
we are constrained to vacate the order denying relief on January 19, 2022.
Order vacated. Case remanded for the appointment of counsel.
Application for writ of certiorari denied. Jurisdiction relinquished.
____________________________________________
these defenses are not raised in a PCRA petition, they may be lost
permanently.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2023
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