Com. v. Britt, K. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
KEVIN BRITT, :
:
Appellant : No. 784 WDA 2016
Appeal from the PCRA Order April 19, 2016
in the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0004137-2006
BEFORE: SHOGAN, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 07, 2017
Kevin Britt (Appellant) appeals pro se from the order entered on April
19, 2016, dismissing his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we remand for
proceedings consistent with this memorandum.
In light of our disposition, a complete recitation of the factual and
procedural history is unnecessary. Pertinent to this appeal, in July 2007,
following a jury trial, Appellant was found guilty of, inter alia, robbery,
criminal conspiracy, and burglary. Appellant was sentenced to an aggregate
term of incarceration of 38½ to 77 years. On December 8, 2008, this Court
affirmed Appellant’s judgment of sentence, and our Supreme Court denied
Appellant’s petition for allowance of appeal soon thereafter.
* Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Britt, 965 A.2d 289 (Pa. Super. 2008) (unpublished
memorandum), appeal denied, 983 A.2d 725 (Pa. 2009).
Appellant’s first PCRA petition resulted in no relief. Commonwealth
v. Britt, 50 A.3d 238 (Pa. Super. 2012) (unpublished memorandum).
Appellant filed the petition that is the subject of the instant appeal on June
20, 2014, and requested the appointment of counsel. Within his petition,
Appellant claimed that he is entitled to relief because of newly-discovered
information concerning his trial attorney and an alleged Brady1 violation.
On July 2, 2014, the PCRA denied Appellant’s request for counsel and issued
notice pursuant to Pa.R.Crim.P. 907 that it intended to dismiss Appellant’s
PCRA petition without holding an evidentiary hearing. Appellant filed a
response to the Rule 907 notice on July 23, 2014, and on September 10,
2014, the PCRA court issued an order scheduling a hearing.
At the hearing on November 24, 2014, the PCRA court was informed
that Appellant was in the process of retaining private counsel and granted a
continuance for counsel to enter his appearance. Patrick K. Nightingale,
Esquire, entered his appearance on behalf of Appellant on February 24,
2015, and requested the PCRA court schedule a hearing. Attorney
Nightingale eventually filed an amended petition. Following several
continuances, a hearing was held on November 20, 2015. The PCRA court
ordered briefs and took the matter under advisement.
1
Brady v. Maryland, 373 U.S. 83 (1963).
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On March 24, 2016, the trial court filed a Rule 907 notice,2 and
Appellant responded pro se, opposing the court’s intention to dismiss his
petition. On April 19, 2016, the PCRA court dismissed Appellant’s petition.
On May 18, 2016, Appellant pro se filed a notice of appeal, motion to
proceed in forma pauperis, and request for the appointment of counsel. The
PCRA court granted Appellant’s request to proceed in forma pauperis but
denied his request for counsel.3
Before we address the issues set forth on appeal, we must first
determine if Appellant was entitled to the appointment of counsel by the
PCRA court. In doing so, we are mindful of the following.
“On a second or subsequent petition, when an unrepresented
defendant satisfies the judge that the defendant is unable to afford or
otherwise procure counsel, and an evidentiary hearing is required as
provided in Rule 908, the judge shall appoint counsel to represent the
defendant.” Pa. R. Crim. P. 904(D). “[T]he appointment of counsel shall be
effective throughout the post-conviction collateral proceedings, including any
appeal from disposition of the petition for post-conviction collateral relief.”
Pa. R. Crim. P. 904(F)(2).
2
A notice pursuant to Pa.R.Crim.P 907 is only required if the PCRA court
intends to dismiss a petition without a hearing.
3
Appellant and the PCRA court complied with the directives of Pa.R.A.P.
1925.
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Because the PCRA court scheduled a hearing on Appellant’s petition,
Appellant was entitled to the appointment of counsel. Here, although the
trial court initially filed a notice, notifying Appellant that it intended to
dismiss his petition, it later decided, following Appellant’s pro se response to
its Rule 907 notice, that a hearing was warranted. At that juncture, for the
reasons cited supra, counsel should have been appointed. Nonetheless, the
trial court was later informed at the scheduled hearing that Appellant was
procuring private counsel, and granted a continuance for further
proceedings. Counsel eventually entered his appearance on Appellant’s
behalf, filed an amended petition, and represented Appellant at the
November 20, 2015 hearing. However, although Appellant now proceeds
pro se, there is no indication in the record or court docket that suggests
Attorney Nightingale subsequently withdrew his appearance.
[A] criminal defense counsel may not unilaterally abandon a
client. Pa.R.Crim.P. [120(d)]. Under the applicable rules, once
counsel enters his appearance, he may not withdraw his
appearance except by leave of court. Counsel is required under
this rule to file a motion to withdraw and serve it upon the court,
the attorney for the Commonwealth and the client. Leave to
withdraw shall be granted, unless the interests of justice
otherwise require.
Commonwealth v. Qualls, 785 A.2d 1007, 1010 (Pa. Super. 2001) (some
citations omitted).
In light of the foregoing, we are constrained to remand this case due
to counsel’s apparent continued representation of Appellant since he has
failed to withdraw his appearance. Upon remand, the PCRA court should
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inquire as to the status of Appellant’s representation and determine if
counsel seeks permission to withdraw. If counsel does and his request to
withdraw is granted, the PCRA court shall appoint new counsel. In the
alternative, if Appellant wishes to proceed pro se, a Grazier4 hearing is
required.
Case remanded for proceedings consistent with this memorandum.
Jurisdiction Relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2017
4
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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