Com. v. Johnson, K. ( 2018 )

J-S32033-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KENNETH JEROME JOHNSON :
:
Appellant : No. 1509 MDA 2017
Appeal from the PCRA Order August 29, 2017
in the Court of Common Pleas of Lycoming County
Criminal Division at No.: CP-41-CR-0000798-2013
BEFORE: PANELLA, J., NICHOLS, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED JULY 25, 2018
Appellant, Kenneth Jerome Johnson, appeals from the order dismissing
his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546, as untimely. We vacate and remand.
We take the following relevant facts and procedural background from
our independent review of the record. On January 28, 2014, a jury convicted
Appellant of rape of an unconscious person, sexual assault, and indecent
assault. The charges related to his rape of the victim when she lay
unconscious after they had been out drinking. On June 19, 2014, the court
sentenced Appellant to an aggregate term of not less than eighty-one nor
more than 168 months’ incarceration, followed by three years of probation.
Appellant timely appealed.
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* Retired Senior Judge assigned to the Superior Court.
J-S32033-18
The Superior Court affirmed the judgment of sentence on April 8, 2015.
(See Commonwealth v. Johnson, 121 A.3d 1124 (Pa. Super. 2015)
(unpublished memorandum)). Appellant did not seek permission to appeal to
our Supreme Court.
On December 9, 2016, Appellant filed a Pro Se Brief in Support of PCRA
Nunc Pro Tunc, which the court properly treated as a first PCRA petition. The
PCRA court appointed counsel and ordered her to file an amended petition or
a Turner/Finley1 letter by March 9, 2017. On January 3, 2017, after a conflict
was recognized, the court appointed conflict counsel, Julian Allatt, Esquire. He
did not file an amended petition on Appellant’s behalf or a Turner/Finley
letter.
On July 18, 2017, the court filed notice of its intent to dismiss the pro
se petition without a hearing. See Pa.R.Crim.P. 907(1). On August 10, 2017,
Appellant responded to the notice pro se, acknowledging the prohibition on
hybrid representation, but claiming that his efforts to contact Attorney Allatt
had been unsuccessful. (See Opposition to Opinion and Order, 8/10/17, at
unnumbered page 7, correspondence to PCRA court). The court dismissed
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1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Appellant’s PCRA petition on August 29, 2017. Appellant timely appealed pro
se.2
“We review the denial of a PCRA [p]etition to determine whether the
record supports the PCRA court’s findings and whether its [o]rder is otherwise
free of legal error.” Commonwealth v. Cherry, 155 A.3d 1080, 1082 (Pa.
Super. 2017) (citation omitted).
Defendants have a general rule-based right to the
assistance of counsel for their first PCRA Petition. [See]
Pa.R.Crim.P. 904(C). The indigent petitioner’s right to counsel
must be honored regardless of the merits of his underlying claims,
even where those claims were previously addressed on direct
appeal, so long as the petition in question is his first. Moreover,
once counsel is appointed, he . . . must take affirmative steps
to discharge his . . . duties.
When appointed, counsel’s duty is to either (1) amend
the petitioner’s pro se [p]etition and present the
petitioner’s claims in acceptable legal terms, or (2) certify
that the claims lack merit by complying with the mandates
of Turner/Finley. If appointed counsel fails to take either
of these steps, our courts have not hesitated to find that
the petition was effectively uncounseled.
Id. at 1082-83 (case citations, quotation marks, and footnote omitted;
emphases added). “Under such circumstances, we generally remand for
appointment of counsel to file either a proper amended PCRA petition or a
proper [Turner/]Finley letter.” Commonwealth v. Priovolos, 746 A.2d
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2 On November 9, 2017, Appellant filed a timely counseled, court-ordered
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). The
court filed an opinion on November 16, 2017, in which it relied on the reasons
stated in its July 18, 2017 notice. See Pa.R.A.P. 1925(a).
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621, 624 (Pa. Super. 2000), appeal denied, 758 A.2d 1198 (Pa. 2000)
(citations omitted).
In this case, the PCRA court properly appointed counsel for Appellant’s
first PCRA petition. However, counsel failed either to file an amended PCRA
petition or certify that Appellant’s claims lacked merit and seek to withdraw
pursuant to Turner/Finley.
Therefore, we conclude that Attorney Allatt abandoned Appellant in the
PCRA court, and that his appointment was analogous to appointing no counsel
at all.3 See Commonwealth v. Albrecht, 720 A.2d 693, 699-700 (Pa. 1998)
(“It is axiomatic that the right to counsel includes the concomitant right to
effective assistance of counsel. Indeed the right to counsel is meaningless
if effective assistance is not guaranteed.”) (citation omitted; emphasis
added). Hence, we are constrained to vacate the PCRA court’s order
dismissing Appellant’s PCRA petition. We direct the court to appoint new PCRA
counsel “to file either a proper amended PCRA petition or a proper
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3 Although Appellant’s brief asserts that, on April 17, 2017, the PCRA court
held “an off the record conference” with the assistant district attorney and
Attorney Allatt regarding Appellant’s PCRA petition, because there is no
transcript of this proceeding, we are unable to confirm this. (Appellant’s Brief,
at 12); see Commonwealth v. Johnson, 33 A.3d 122, 126 n.6 (Pa. Super.
2011), appeal denied, 47 A.3d 845 (Pa. 2012) (“[F]or purposes of appellate
review, what is not of record does not exist.”) (citation omitted).
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[Turner/]Finley letter.”4 Priovolos, supra at 624 (citations omitted); see
also Cherry, supra at 1082-83.5
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/25/2018
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4 For sake of completeness, we note that counsel’s lethargy continued in this
Court. On December 4, 2017, we ordered that Appellant’s brief was due on
January 16, 2018. After granting his requested ninety-day extension, counsel
filed the brief late. It raises two issues. However, after only two pages of
argument on the first issue, counsel addresses the second issue by
incorporating “the argument authored by Appellant.” (Appellant’s Brief, at
17).
5 Because of our disposition, we make no judgment on the merits of
Appellant’s claims on appeal, without prejudice to his re-raising them.
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