Com. v. Mayo, R. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
RAKIN MAYO, :
:
Appellant : No. 1558 WDA 2017
Appeal from the PCRA Order August 29, 2017
in the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0002813-2008
BEFORE: OLSON, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 28, 2018
Rakin1 Mayo (Appellant) appeals pro se from the August 29, 2017
order which dismissed his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We vacate the order and remand
with instructions.
In September 2009, Appellant was sentenced to ten to twenty years of
incarceration after pleading guilty to crimes related to his possession of
controlled substances. He did not file a direct appeal. In February 2015,
Appellant pro se filed a petition for credit time. The lower court granted it in
part and denied it in part, awarding some additional credit for time he
served in New York. On appeal, this Court held that the petition should have
1 While Appellant in some places in the record is referred to as Rakim Mayo,
it appears from both his brief and that of the Commonwealth that Appellant’s
first name is Rakin. We have amended the caption accordingly.
*Retired Senior Judge assigned to the Superior Court.
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been treated as Appellant’s first PCRA petition, which required the
appointment of counsel or a waiver-of-counsel colloquy. Commonwealth
v. Mayo, 168 A.3d 314 (Pa. Super. 2017) (unpublished memorandum).
Therefore, we vacated the order and remanded for further proceedings
consistent with our memorandum decision. Id. (unpublished memorandum
at 8).
By order of April 10, 2017, the PCRA court appointed Paul M. Puskar,
Esquire, to represent Appellant, granted Attorney Puskar 60 days to file an
amended PCRA petition, and scheduled a status conference to take place on
June 29, 2017. Neither the record nor the docket contains any indication
that an amended PCRA petition was filed, or that the status conference was
conducted on the record. The next docket entry is an order filed on June 29,
2017, indicating that a conference with counsel had been held, that the
Commonwealth had 20 days to file “its motion to dismiss the PCRA petition
as being untimely,” and directing the court administrator to schedule an
evidentiary hearing. Order, 6/29/2017 (unnecessary capitalization omitted).
The Commonwealth filed its motion on July 13, 2017, and the PCRA
court held a hearing on August 29, 2017. Attorney Puskar appeared at the
hearing on Appellant’s behalf, and Appellant participated via video
conferencing. Counsel indicated that Appellant filed his petition within one
month of discovering that he had not been given all of the credit for time
served that Appellant had been promised. N.T., 8/29/2017, at 2. The
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Commonwealth’s position was that Appellant had not pled an exception to
the PCRA’s one-year timeliness requirement, that Appellant had plenty of
opportunity to learn his credit-time status before he did, and that he has
been given the proper credit time. Id. at 1-3. After indicating its opinion
that this Court erred in its March 14, 2017 holding, the PCRA court took the
Commonwealth’s motion under advisement. Id. at 10.
On August 30, 2017, the PCRA court entered an order dismissing
Appellant’s petition as untimely filed, indicating therein that the order was
without prejudice for Appellant to seek relief in the Commonwealth Court
against the Department of Corrections. While the order was not docketed in
full compliance with Pa.R.Crim.P. 114(C)(2), a stamp on the order indicates
that it was served on “counsel of record” on August 30, 2017.
On September 7, 2017, Appellant pro se filed a petition for the
transcript of the August 29, 2017 hearing. There is no indication in the
record or on the docket that this petition was forwarded to Attorney Puskar
as required by Pa.R.Crim.P. 576(A)(4). In a handwritten letter to the clerk
of courts dated September 21, 2017, Appellant requested a copy of the
order dismissing his petition, stating that he had not received it although it
had been almost 30 days, but that he required it to “put in” his appeal.
Letter, 9/21/2017. The envelope is postmarked September 28, 2017, and it
was docketed on October 2, 2017. The record reflects that the requested
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order was sent to Appellant on October 2, 2017, but does not denote that
Appellant’s letter was forwarded to his attorney of record.
The next docket entry is Appellant’s pro se handwritten notice of
appeal, which is dated September 28, 2017. The notice is time-stamped as
having been received by this Court’s prothonotary on October 4, 2017, and
received by the Blair County prothonotary on October 10, 2017. The docket
reflects that the notice was forwarded to Attorney Puskar.2
On October 13, 2017, the PCRA court entered an order directing the
filing of a statement of errors complained of on appeal pursuat to Pa.R.A.P.
1925(b). The order was sent both to Appellant and his counsel. Appellant
pro se filed a statement on October 30, 2017. The PCRA court thereafter
informed the Blair County prothonotary that it “will stand on the record
relative to this appeal.” Letter, 11/1/2017.
Before we address the issues Appellant raises in this Court, we
consider whether he is properly proceeding pro se. “Counsel for a defendant
may not withdraw his or her appearance except by leave of court.”
Pa.R.Crim.P. 120(B)(1). In the context of PCRA proceedings, a first-time
petitioner has a rule-based right to counsel that “extends throughout the
post-conviction proceedings, including any appeal from the disposition of the
2 The docket also has an entry for a corrected notice of appeal filed on
October 13, 2017. This typewritten notice is dated October 4, 2017, and
marked as filed in the Superior Court on October 12, 2017. There is no
indication that this second notice was forwarded to Appellant’s counsel.
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PCRA petition.” Commonwealth v. Smith, 121 A.3d 1049, 1053 (Pa.
Super. 2015). “[O]nce counsel has entered an appearance on a
[petitioner’s] behalf he is obligated to continue representation until the case
is concluded or he is granted leave by the court to withdraw his
appearance.” Id. (citation and internal quotation marks omitted).
[B]efore an attorney can be permitted to withdraw from
representing a petitioner under the PCRA, Pennsylvania law
requires counsel to file and obtain approval of a ‘no-merit’
letter pursuant to the mandates of [Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc)].
Commonwealth v. Willis, 29 A.3d 393, 400 (Pa. Super. 2011) (quoting
Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003))
(emphasis added).
There is no indication on the docket or in the certified record that
Attorney Puskar sought or was granted leave to withdraw from his
representation of Appellant.3 Rather, Attorney Puskar remains Appellant’s
counsel of record, and has the obligation to represent his client unless and
until he is allowed to withdraw. For reasons not apparent from the record
before us, it appears that Attorney Puskar may not have fulfilled those
obligations.
3 However, from Appellant’s brief to this Court, it appears that Attorney
Puskar may have informed Appellant of his intent to seek to withdraw.
Appellant’s Brief at 3. Again, the record before us does not show that
Attorney Puskar filed any request to do so.
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“Given the significant rights at issue… and the incomplete record
before us, the best resolution of this case is to vacate and remand for PCRA
[] counsel to file a new amended PCRA petition on Appellant’s behalf and for
further proceedings.”4 Commonwealth v. Williams, 167 A.3d 1, 6 (Pa.
Super. 2017).
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2018
4 The record reflects that the relationship between Appellant and Attorney
Puskar had been strained. See, e.g., N.T., 8/29/2017, at 4 (Attorney
Puskar representing “there has been a bit of a history between Mr. Mayo and
I [sic]….”). Should the PCRA court deem it more appropriate, it may appoint
new PCRA counsel for the proceedings on remand.
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