Com. v. Helms, R. ( 2014 )

J-S63003-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD DALE HELMS,
Appellant No. 404 MDA 2014
Appeal from the PCRA Order February 4, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000395-2006, CP-06-CR-0002897-
2006, CP-06-CR-0002898-2006, CP-06-CR-0004789-2006
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD D. HELMS,
Appellant No. 405 MDA 2014
Appeal from the PCRA Order February 4, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002897-2006
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD DALE HELMS, SR.,
J-S63003-14
Appellant No. 406 MDA 2014
Appeal from the Order Entered February 4, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002898-2006
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD DALE HELMS, SR.,
Appellant No. 407 MDA 2014
Appeal from the Order Entered February 4, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0004789-2006
BEFORE: BOWES, PANELLA, and PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 15, 2014
Richard Dale Helms, Sr. appeals from the February 4, 2014 order
denying PCRA relief. We reverse and remand for further proceedings.
Appellant was charged at four criminal actions, which were
subsequently consolidated, with various crimes involving the sexual abuse of
four young boys. During Appellant’s direct appeal, we recited the factual
basis for the charges:
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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The charges filed at 395-06 arose out of allegations that
Appellant sexually molested K.W. from the age of 11 until the
age of 15. When K.W. was 11, he began visiting Appellant’s farm
to perform work on weekends and during summers when he was
not in school. On occasion, K.W. spent the night at the farm,
sleeping in a trailer behind Appellant’s farmhouse. K.W. testified
that he and Appellant slept in the same bed during these
overnight visits. Two months after K.W. started visiting
Appellant’s farm, Appellant began fondling K.W.’s penis. In
addition, six months after K.W.’s visits began, Appellant
performed oral sex on K.W. and forced K.W. to perform oral sex
on him. K.W. reported over 20 instances of molestation.
The charges filed at 2897-06 relate to allegations of
Appellant’s sexual abuse of A.S. According to the trial
testimony, Appellant took A.S. to his farm when A.S. was under
11 years of age. On two occasions, Appellant lured A.S. into a
bedroom and instructed him to remove his clothing and lie down
on his stomach. Appellant then attempted to have anal
intercourse with A.S. Although A.S. could not see Appellant’s
penis, A.S. felt pain inside and outside his buttocks.
Information 2898-06 involves Appellant’s alleged
molestation of S.S. who was then between six and eight years
old. The testimony at trial showed that, on several occasions,
Appellant took S.S. into his bedroom or the trailer behind his
farmhouse, attempted to kiss S.S. on the lips or cheek, and
performed oral sex on S.S. Information 2898-06 also
encompasses an incident during which K.W. witnessed Appellant
perform oral sex on K.W.’s nephew, T.G., who was three or four
years old at the time.
Finally, the charges filed by the Commonwealth at 4789-06
related to allegations that Appellant molested a preschooler
known as J.T. The Commonwealth’s evidence at trial showed
that, before J.T. was old enough to attend school, his mother
dropped him off at Appellant’s farm for childcare during the
hours when she worked. On more than five occasions, Appellant
took J.T. into a trailer, removed his clothing, and performed oral
sex on him. J.T. reported Appellant’s abuse after his mother told
him not to let anyone touch him.
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Commonwealth v. Helms, 998 A.2d 1012 (Pa.Super. 2010) (unpublished
memorandum at 3-5).
On February 6, 2008, Appellant pled guilty to involuntary deviate
sexual intercourse and endangering the welfare of a child as to each victim.
Sentencing was deferred to permit an evaluation by the Sexual Offenders
Assessment Board, and Appellant filed a pre-sentence motion to withdraw
his plea. After the motion was granted and Appellant was permitted to
change counsel twice, the four criminal cases proceeded to a jury trial.
On June 25, 2008, a jury found Appellant guilty of multiple sex
offenses, and Appellant was sentenced to 124 years to 248 years
incarceration. His original appeal was quashed as untimely, but Appellant
successfully obtained reinstatement of his direct appeal rights. We affirmed
and rejected allegations that the sentence was excessive, the trial court
improperly permitted introduction at trial of Appellant’s prior convictions
involving sexual abuse, the trial court incorrectly applied the Rape Shield
Law with respect to prior actions of victim K.W., and a continuance should
have been granted. Id. Our Supreme Court denied allowance of appeal on
October 13, 2010. Commonwealth v. Helms, 8 A.3d 898 (Pa. 2010).
Appellant filed a timely PCRA petition on September 14, 2011, and
counsel was appointed. On January 10, 2014, PCRA counsel filed a no-merit
letter and petition to withdraw. On January 10, 2014, the PCRA court
allowed counsel to withdraw and issued a notice of its intent to dismiss the
PCRA petition without a hearing. Appellant responded by filing an amended
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PCRA petition, which was dismissed on February 4, 2014. This appeal
followed. Appellant raises these contentions on appeal:
A) Whether PCRA court erred when it denied Appellant[’]s pro
se motion to waive counsel and proceed pro-se without
conducting a Grazier hearing[?].
B) Whether PCRA court erred by failing to hold Grazier
hearing to ensure that Appellant intelligently, knowingly and
voluntarily waived his right to post conviction representation
and failing to apply the six areas of inquiry under
Pennsylvania Rules of Criminal Procedure Rule 121. . . .
Appellant’s brief at i.
Initially, we note that our Supreme Court has observed that limited
appellate review applies in the PCRA context. Commonwealth v. Spotz,
84 A.3d 294 (Pa. 2014). As delineated in Commonwealth v. Feliciano, 69
A.3d 1270, 1274-75 (Pa.Super. 2013) (citation omitted),
Our standard of review of the denial of a PCRA petition is
limited to examining whether the court's rulings are supported
by the evidence of record and free of legal error. This Court
treats the findings of the PCRA court with deference if the record
supports those findings. It is an appellant's burden to persuade
this Court that the PCRA court erred and that relief is due.
In this case, issue two is merely an iteration of the first one. The
question is whether Appellant invoked his right to proceed pro se and should
have been afforded a hearing to ensure a voluntary and knowing waiver of
his right to counsel. The following procedural background is pertinent. In
his September 14, 2011 pro se PCRA petition, Appellant averred that trial
counsel was ineffective for failing to call defense witnesses, investigate
medical records, and present mitigating evidence during sentencing. He also
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said that he did not have a lawyer, could not afford one, and asked “the
court to appoint a lawyer to represent me.” PCRA Petition, 9/14/11, at 7.
On September 22, 2011, Osmer S. Deming, Esquire, was appointed to
represent Appellant. On five occasions, counsel requested continuances to
either file an amended PCRA petition or no-merit letter, and these requests
were granted. In the final order, which was entered July 1, 2013, the court
granted counsel an extension until August 30, 2013, for counsel to file either
a no-merit letter or amended petition. It also indicated that no further
extensions would be granted.
On August 12, 2013, Appellant filed a motion seeking to represent
himself. See Application for Self-Representation, 8/12/13. Appellant
complained about counsel’s lack of diligence in prosecuting the matter and
also clearly and unequivocally expressed a desire to represent himself. Id. at
¶ 6 (“Defendant believes, and therefore avers that in the interest of Justice,
and his own Interest, it would be better served by Self-Representation[.]”).
He also sought a hearing pursuant to Pa.R.Crim.P. 121, which outlines the
parameters of a waiver-of-counsel colloquy. Id. at ¶ 7. Additionally,
Appellant filed a memorandum that contained the law supporting that he
enjoyed a constitutional right to self-representation. See Memorandum of
Law in Support of Application for Self Representation, 8/12/13.
On August 19, 2013, Appellant’s request to proceed pro se was denied
on the basis that counsel had been appointed and Appellant was not entitled
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to hybrid representation. Appellant filed a pro se appeal from the
August 19, 2013 order, and thereafter, a number of additional petitions
asking to represent himself. That appeal was quashed on September 4,
2013. Appellant then sent a letter to the President Judge of Berks County
complaining about the denial of his constitutional right to self-representation
and the PCRA court’s refusal to conduct the appropriate colloquy.
After these proceedings and well past the August 30, 2013 deadline,
appointed counsel filed what purported to be a no-merit letter. In that
document, counsel averred that he “sent a letter enclosing an Amended
PCRA Petition to the Defendant.” No-Merit Letter Pursuant to Finley and
Turner Requesting Leave of Court to Withdraw as Counsel, 1/10/14, at 6.
Counsel continued that, in the letter, counsel instructed Appellant to review
the amended PCRA petition, sign the verification, and return the executed
verification to counsel. Counsel reported that Appellant had failed to
respond to the letter and return the verification. Counsel averred that he
could no longer proceed without Appellant’s cooperation, and he sought
withdrawal on that basis.
The court granted the request to withdraw and cursorily examined the
issues raised in the initial PCRA petition. It issued a notice of its intent to
dismiss the PCRA petition without a hearing. Appellant responded by filing
an amended PCRA petition reasserting his original issues and raising a
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number of additional allegations of ineffective assistance of counsel. At that
point, the court dismissed the PCRA proceeding.
The applicable law regarding the right to self-representation is as
follows. “In all criminal prosecutions the accused has a right to be heard by
himself and his counsel.” 42 Pa.C.S. § 2501(b). The right to proceed pro se
is not absolute. Commonwealth v. Clyburn, 42 A.3d 296 (Pa.Super.
2012). Rather, a “defendant's request to proceed pro se must be timely and
unequivocal, and not made for purpose of disruption or delay.” Id. at 299
(citing Commonwealth v. Davido, 868 A.2d 431, 438 (Pa. 2005)).
Additionally, the court must conduct an appropriate colloquy to ensure that
the waiver of counsel is knowing, voluntary, and intelligent. Clyburn,
supra.Herein, the request to proceed pro se was absolutely clear and
unequivocal. Appellant filed a petition seeking self-representation and an
accompanying memorandum that provided legal citation referencing his
constitutional right to do so. Appellant’s request was also timely filed since,
when the petition invoking the right to self-representation was filed, counsel
had performed no action. Thus, the request was not interposed for delay; to
the contrary, it was presented to advance this matter, which was languishing
due to counsel’s dilatory conduct.
Moreover, the PCRA court committed legal error when it denied
Appellant that right. It denied the petition based upon the position that
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Appellant had counsel and was not entitled to hybrid representation.
However, Appellant was not seeking hybrid representation. He asked to
represent himself and have counsel removed. The PCRA court further
indicated in its Pa.R.A.P. 1925(a) opinion that Appellant’s issues are moot
since Appellant is now proceeding pro se. However, this issue is not moot
because Appellant has never obtained proper review, in the first instance, of
the issues raised in his amended PCRA petition, which counsel belatedly
sought to file.
For two years, counsel failed to perform any action in this matter,
except to file extensions. When Appellant repeatedly and emphatically
asked to proceed pro se to file the amended PCRA petition that counsel was
unable to complete, he was denied that right. In 2014, two and one-half
years after the initial petition was filed, counsel obtained withdrawal based
upon an utterly defective no-merit letter.
Specifically, Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc),
govern the procedure for withdrawal of court-appointed counsel for purposes
of post-conviction proceedings. “Independent review of the record by
competent counsel is required before withdrawal is permitted” in the PCRA
setting. Commonwealth v. Widgins, 29 A.3d 816, 817 (Pa.Super. 2011)
(quoting Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009)).
That independent review requires:
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1) A “no-merit” letter by PCRA counsel detailing the nature and
extent of his review;
2) The “no-merit” letter by PCRA counsel listing each issue the
petitioner wished to have reviewed;
3) The PCRA counsel's “explanation”, in the “no-merit” letter, of
why the petitioner's issues were meritless;
4) The PCRA court conducting its own independent review of the
record; and
5) The PCRA court agreeing with counsel that the petition was
meritless.
Widgins, supra at 818 (quoting Pitts, supra at 876 n.1).1
In this case, counsel neither outlined the parameters of his review of
the record, nor did counsel provide any analysis of the merits of the issues
raised in the initial PCRA petition and the amended PCRA petition. Instead,
counsel stated that he was unable to discharge his duties due to Appellant’s
lack of cooperation. The letter indicates an amended PCRA petition was to
be filed, and, thus, it actually supports that there were issues of arguable
merit to raise before the PCRA court.
Accordingly, we reverse the denial of PCRA relief and remand for the
conduct of a proper waiver-of-counsel colloquy. Appellant thereafter shall
have the right to file an amended PCRA petition.
____________________________________________
1
There are additional requirements that are not pertinent herein. See
Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa.Super. 2011).
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Order reversed. Case remanded with directions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2014
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