Com. v. Rodriguez Areralo, C. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CESAR OBDULIO RODRIGUEZ :
ARERALO :
: No. 773 MDA 2021
Appellant :
Appeal from the PCRA Order Entered May 13, 2021
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0000167-2018
BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: JUNE 7, 2022
Cesar Obdulio Rodriguez Areralo1 (Appellant) appeals, pro se, from the
order entered in the Franklin County Court of Common Pleas, dismissing his
first petition for collateral relief filed pursuant to the Post Conviction Relief Act
(PCRA).2 Appellant seeks relief from the judgment of sentence imposed
following his jury conviction of attempted involuntary deviate sexual
intercourse (IDSI)3 and related charges for his sexual assault of another man
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1 Appellant’s last name is spelled “Arevalo” in most of the trial court
documents, and in the prior appeal to this Court. Appellant, himself, has
spelled his name as both “Arevalo” and “Areralo” in various documents.
Because he spelled his name “Areralo” in the pro se notice of appeal sub
judice, we will refer to him accordingly. See Appellant’s Notice of Appeal,
6/15/21.
2 42 Pa.C.S. §§ 9541-9546.
3 18 Pa.C.S. §§ 901, 3123(a)(1).
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at a local gym. On appeal, he argues the PCRA court erred when it granted
appointed counsel’s petition to withdraw and dismissed his petition as
untimely filed. For the reasons below, we vacate the order dismissing his
petition and remand for further proceedings.
The relevant facts and procedural history are as follows. On the morning
of January 2, 2018, Appellant sexually assaulted a 29-year-old male, who is
“on the Asperger’s spectrum[,]”4 in the locker room of a local gym. See
Commonwealth v. Rodriguez Arevalo, 96 MDA 2019 (unpub. memo. at 1-
2) (Pa. Super. July 31, 2019). On November 8, 2018, a jury convicted
Appellant of two counts of attempted IDSI, and one count each of attempted
rape, indecent assault and indecent exposure.5 Appellant was sentenced to
an aggregate term of 117 to 540 months’ imprisonment on December 19,
2018.6 At both the jury trial and sentencing hearing, Appellant was assisted
by a Spanish interpreter.
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4 At trial, the victim’s mother described the victim’s “cognitive and social
challenges associated with his Asperger’s, which include severe anxiety and
ADHD, although she [portrayed] him as being ‘on the high [functioning] side
of his disability.’” Rodriguez Arevalo, 96 MDA 2019 (unpub. memo. at 2).
She further explained that he is a “very black-and-white person” who has a
“very strong will to please [and] do good.” Id.
5 See 18 Pa.C.S. §§ 3121(a)(1), 3126(a)(2), 3127(a).
6 Appellant was determined not to meet the criteria for classification as a
sexually violent predator under the Sexual Offender Registration and
Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10 to 9799.75. See Trial Ct.
Op., 8/6/21, at 2 n.5. However, as a Tier III sexual offender, he is required
to register as a sex offender for life. Id.; see 42 Pa.C.S. §§ 9799.14(d)(4),
(Footnote Continued Next Page)
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Appellant filed a timely direct appeal, challenging the trial court’s
admission of the victim’s hearsay statements through his mother, and the
sufficiency of the evidence supporting his convictions. See Rodriguez
Arevalo, 96 MDA 2019 (unpub. memo. at 8). Appellant was represented at
trial and on direct appeal by Shawn M. Stottlemyer, Esquire. On July 31,
2019, a panel of this Court affirmed, concluding Appellant’s claims were
waived or underdeveloped. See id. at 10-14. Appellant did not seek review
in the Pennsylvania Supreme Court; thus, for purposes of collateral review,
his judgment of sentence was final on August 30, 2019. See Pa.R.A.P.
1113(a) (petition for allowance of appeal in Supreme Court must be filed
“within 30 days after entry of the order . . . sought to be reviewed”); 42
Pa.C.S. § 9545(b)(3) (“[A] judgment becomes final at the conclusion of direct
review, including discretionary review in the . . . the Supreme Court of
Pennsylvania, or at the expiration of time for seeking the review.”).
On November 19, 2020, Appellant filed a pro se PCRA petition,7
asserting trial counsel was ineffective for failing to obtain a video of the
incident, failing to call an unnamed witness, and for informing him “the court
would not permit black people” on the jury. Appellant’s Motion for Post
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(14) (conviction of attempted IDSI under 18 Pa.C.S. § 3123 is a Tier III sexual
offense), 9799.15(a)(3) (individual convicted of a Tier III sexual offense shall
register for life).
7This petition, filed more than a year after Appellant’s judgment of sentence
was final, was facially untimely. See 42 Pa.C.S. § 9545(b)(1) (any petition
must be filed within one year of date judgment of sentence is final).
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Conviction Collateral Relief, 11/19/20, at 3. Since this was Appellant’s first
petition, the PCRA court appointed Erich Hawbaker, Esquire, to represent him,
and directed Attorney Hawbaker to file an amended petition within 45 days, if
he deemed an amendment necessary. See Order, 12/2/20. After requesting
and receiving two extensions of time, on March 19, 2021, Attorney Hawbaker
filed a motion to withdraw as counsel and a Turner/Finley8 “no merit” letter.
See Motion to Withdraw, 3/19/21; No Merit Letter, 3/19/21. He asserted that
he reviewed the record and corresponded with Appellant “by mail and by
telephone[,]” but determined that Appellant’s petition was untimely filed, and
that Appellant presented no claim that qualified as an exception to the PCRA’s
one-year timing requirements. No Merit Letter at 2-3 (unpaginated). Notably,
Attorney Hawbaker also stated that although Appellant required a Spanish
interpreter during the trial court proceedings, he “has had no difficulty
communicating with [Appellant] over the telephone, and all of his written
correspondence in English has been clear and fully understandable.” Id. at 2.
On April 22, 2021, the PCRA court issued Pa.R.Crim.P. 907 notice of its
intent to dismiss Appellant’s petition without first conducting an evidentiary
hearing, and an accompanying opinion in which the court determined
Appellant’s petition was untimely filed. See Order, 4/22/21; PCRA Ct. Op.
4/22/21, at 14. The court provided Appellant with 20 days to respond to the
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8Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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proposed dismissal of the petition and its intent to grant counsel’s petition to
withdraw. Order, 4/22/21.
Appellant filed a timely pro se response on May 11, 2021, in which he
asserted the following:9 (1) Attorney Hawbaker failed to consult with him
before petitioning to withdraw; (2) Attorney Hawbaker failed to discover and
raise meritorious claims of trial counsel’s ineffective assistance; (3) Appellant
is “from a foreign country” and is “in need of a translator[;]” (4) the delayed
filing of his petition was due to the prison’s “‘enhanced quarantine’ which
restricted prisoners’ access to [the] facility’s Law Library” as a result of the
Covid-19 pandemic; and (5) Attorney Hawbaker “could have amended
[Appellant’s] Petition to properly and fully plea[d] this claim[.]” See
Appellant’s Response to Proposed Dismissal of [Appellant’s] PCRA Petition &
Attorney Hawbaker’s Motion to Withdraw as Counsel, 5/11/21, at 1-3.
Appellant requested the PCRA court either deny Attorney Hawbaker’s petition
to withdraw or appoint new counsel. Id. at 1.
Two days later, on May 13, 2021, the PCRA court dismissed Appellant’s
petition as untimely filed and granted Attorney Hawbaker’s request to
withdraw. The PCRA court referred to its April 22nd opinion and stated,
summarily, that Appellant’s Rule 907 response and amended petition “fail to
prove any additional cognizable bases for exception to the PCRA’s timeliness
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9 Appellant attached a pro se amended petition to his response.
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requirement.” Order, 5/13/21, at 1 (unpaginated). This timely pro se appeal
followed.10
Appellant raises the following three issues for our review:
a. Whether the [PCRA] court erred in dismissing Appellant’s pro
se [PCRA petition] and granting Attorney Hawbaker’s Motion to
Withdraw as Counsel when Appellant explained the petition
met the exception to the PCRA’s timeliness requirement as the
reason for the petition’s untimeliness was due to governmental
shutdowns related to [the COVID-19] pandemic, and Appellant
requested that counsel not be allowed to withdraw without
assisting Appellant in developing legal arguments relating to
the petition[?]
b. Whether [PCRA] counsel, Attorney Hawbaker, rendered
ineffective assistance of counsel by not counseling with
Appellant concerning [the] reason why the petition met the
exception to the PCRA’s timeliness requirement and for failing
to identify and properly/fully plea[d] Appellant’s legal
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10Although Appellant’s notice of appeal was docketed on June 15, 2021, more
than 30 days after the order dismissing his petition, upon inquiry from this
Court, Appellant provided a cash slip and certificate of service reflecting that
he presented the document to prison authorities on June 7, 2021. Thus,
pursuant to the prisoner mailbox rule, Appellant’s appeal was timely filed. See
Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011)
(“Under the prisoner mailbox rule, we deem a pro se document filed on the
date it is placed in the hands of prison authorities for mailing.”).
We note, too, that Appellant complied with the PCRA court’s directive to
file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
The court issued an opinion pursuant to Pa.R.A.P. 1925(a) on August 6, 2021.
Thereafter, on August 17, 2021, Appellant filed two pro se motions
before this Court: one seeking the appointment of an interpreter, and the
other seeking the appointment of PCRA counsel. This Court denied both
motions on September 14th, without prejudice to Appellant to seek relief in
the trial court. See Order, 9/14/21. The trial court docket reveals Appellant
subsequently filed, in the PCRA court, three motions for the appointment of
both counsel and an interpreter, all of which were denied.
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arguments as well as for abandoning Appellant before the court
actually granted his Motion to Withdraw as Counsel[?]
c. Whether . . . Attorney Hawbaker[ ] rendered ineffective
assistance of counsel by failing to articulate Appellant’s reasons
to the court regarding why the petition met the exception to
the PCRA’s timeliness requirement and failing to submit
documentation in support of Appellant’s claims to prove
governmental shutdowns and institutional shutdowns in
relation to [the COVID-19] pandemic creating [a]
governmental interference regarding Appellant timely filing the
petition[?]
Appellant’s Brief at 2 (unpaginated) (some capitalization omitted).
When considering the propriety of an order dismissing a PCRA petition,
[o]ur standard of review . . . is whether that determination is
supported by the evidence of record and is free of legal error. The
PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.
Commonwealth v. Betts, 240 A.3d 616, 621 (Pa. Super. 2020) (citations
and quotation marks omitted).
In the opinion accompanying its Rule 907 notice, the PCRA court
determined that Appellant’s petition was untimely filed, and Appellant had
failed to prove the applicability of any of the PCRA’s timing exceptions.11 See
PCRA Ct. Op., 4/22/21, at 4-14. The court also indicated its intention to grant
Attorney Hawbaker’s petition to withdraw. In his timely response, Appellant
raised the ineffective assistance of Attorney Hawbaker, asserting counsel
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11 See 42 Pa.C.S. § 9545(b)(1)(i) (PCRA petition must be filed within one-
year of the date the judgment becomes final unless petitioner pleads and
proves, inter alia, “the failure to raise the claim previously was the result of
interference by government officials with the presentation of the claim in
violation of the Constitution or laws of this Commonwealth or the Constitution
or laws of the United States”).
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failed to consult with him before seeking to withdraw, secure the assistance
of an interpreter, and argue the applicability of the governmental interference
exception to the PCRA timeliness requirement as a result of “restrictions and
governmental shutdowns” due to the COVID-19 pandemic. See Appellant’s
Response to Proposed Dismissal of [Appellant’s] PCRA Petition & Attorney
Hawbaker’s Motion to Withdraw as Counsel at 1-3. The PCRA court
acknowledges that it did “not address [Appellant’s] allegations of PCRA
counsel’s ineffective representation” before dismissing the petition, and
“concede[s] that this may have been error.” PCRA Ct. Op., 8/6/21, at 5. We
agree.
It is well-established that a PCRA petitioner has a “rule-based right to
the appointment of counsel for a first PCRA petition.” Commonwealth v.
Bradley, 261 A.3d 381, 391 (Pa. 2021), citing Pa.R.Crim.P. 904. Moreover,
this rule-based right is enforceable regardless of the merits of the underlying
claims, and even when it appears the petition is untimely on its face. See
Commonwealth v. Kelsey, 206 A.3d 1135, 1139 (Pa. Super. 2019);
Commonwealth v. Ramos, 14 A.3d 894, 895 (Pa. Super. 2011) (when
petition is facially untimely, petitioner “is entitled to representation for
assistance in determining . . . whether any exception to the normal time
requirements is applicable.”). As our Supreme Court has explained: “The
guidance and representation of an attorney during collateral review ensures
that meritorious legal issues are recognized and addressed, and that meritless
claims are abandoned.” Bradley, 261 A.3d at 391-92.
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We also recognize, however, that appointed PCRA counsel may petition
to withdraw if, after a “diligent review of the case,” counsel concludes that the
issues the petitioner seeks to raise “lack merit.” Commonwealth v. Muzzy,
141 A.3d 509, 511 (Pa. Super. 2016). Following the dictates of
Turner/Finley, counsel must
submit a “no-merit” letter to the trial court, or brief on appeal to
this Court, detailing the nature and extent of counsel’s diligent
review of the case, listing the issues which petitioner wants to
have reviewed, explaining why and how those issues lack merit,
and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
“no merit” letter/brief; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the
right to proceed pro se or by new counsel.
Id. at 510–11 (citation omitted). When appointed counsel has satisfied these
technical requirements, the PCRA court (or this Court) “must then conduct its
own review of the merits of the case[, and if it] agrees with counsel[,] the
court will permit counsel to withdraw and deny relief.” Id. at 511 (citation
omitted).
Because they have a right to effective PCRA counsel, petitioners also
have the right to assert counsel’s ineffectiveness. Until recently — and at the
time of the PCRA proceedings in this case — “a petitioner was required to raise
PCRA counsel’s ineffectiveness in response to the PCRA court’s Rule 907 notice
of intention to dismiss the petition.” Bradley, 261 A.3d at 397. Otherwise,
any challenge asserting PCRA counsel’s ineffective assistance was deemed
waived. Id. In Bradley, however, the Supreme Court acknowledged that the
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Rule 907 approach was “largely impractical and ineffective[,]” and held a PCRA
petitioner should be permitted “to raise claims of ineffective assistance of
counsel at the first opportunity to do so, even when on appeal.” Id. at 399,
401. The Court further opined:
In some instances, the record before the appellate court will
be sufficient to allow for disposition of any newly-raised
ineffectiveness claims. However, in other cases, the appellate
court may need to remand to the PCRA court for further
development of the record and for the PCRA court to consider such
claims as an initial matter. Consistent with our prior case law, to
advance a request for remand, a petition would be required to
provide more than mere “boilerplate assertions of PCRA counsel’s
ineffectiveness[;]” however, where there are “material facts at
issue concerning [claims challenging counsel’s stewardship] and
relief is not plainly unavailable as a matter of law, the remand
should be afforded[.]”
Id. at 402 (citations omitted).
Under either approach (Bradley or pre-Bradley), Appellant properly
challenged PCRA counsel’s stewardship. In particular, Appellant argued that
Attorney Hawbaker failed to address Appellant’s claim that COVID-19 related
“restrictions and governmental shutdowns” interfered with his ability to file a
timely petition. See Appellant’s Response to Proposed Dismissal of
[Appellant’s] PCRA Petition & Attorney Hawbaker’s Motion to Withdraw as
Counsel at 3; Appellant’s Brief at 7, 9. Moreover, while the Commonwealth
suggests “[t]his very argument [has been] rejected by this Court” in a recent
unpublished memorandum decision, we conclude that decision is factually
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distinguishable. See Commonwealth’s Brief at 11-12, citing Commonwealth
v. Sturgis, 196 MDA 2021 (unpub. memo.) (Pa. Super. Dec. 22, 2021).12
In Sturgis, like here, the petitioner filed his first PCRA petition more
than one year after the judgment of sentence was final. See Sturgis, 196
MDA 2021 (unpub. memo. at 2). The PCRA court ultimately dismissed the
petition as untimely filed. Id. On appeal, the petitioner argued he satisfied
the “governmental interference” timeliness exception because “he was
prevented from filing his PCRA petition on time due to libraries being closed
at the prison.” Id. at 6. This assertion was based “on a letter he received
from the Acting General Counsel of the Department of Corrections that stated
the general libraries would be temporarily closed due to the COVID-19
pandemic[,]” and the petitioner’s mistaken belief that this notice applied to
the law libraries as well. Id. The letter at issue, however, “clearly state[d]
that services for the law library will continue as needed.” Id. In denying
relief, the Sturgis panel opined:
[T]he letter is not evidence that [the petitioner] was prevented
from accessing the law library to file his PCRA petition. Nor has
[he] presented any arguments regarding an inability to read the
letter, an explanation why he needed to use the law library to
prepare his petition, or if he made any attempt at all to access
services to file his petition and if those attempts were denied. His
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12Although we are not bound by the holding of an unpublished memorandum
decision, we may consider such decisions, filed after May 1, 2019, for their
persuasive value. See Commonwealth v. Holt, 270 A.3d 1230, 1236 n.2
(Pa. Super. 2022); Pa.R.A.P. 126(b) (“non-precedential” Superior Court
decisions filed after May 1, 2019 may be cited for persuasive value).
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apparent misinterpretation of the letter simply does not constitute
governmental interference.
Id. at 6-7.
In the present case, Appellant does not rely solely upon a similar letter
from the Department of Corrections. Rather, he asserts his access to the law
libraries was the result of “enhanced quarantine’ which restricted prisoners’
access to [the] facility’s Law Library and . . . to the Courts.” Appellant’s
Response to Proposed Dismissal of [Appellant’s] PCRA Petition & Attorney
Hawbaker’s Motion to Withdraw as Counsel at 3; Appellant’s Brief at 9
(unpaginated).13 Accordingly, Appellant should be provided the opportunity
to prove his claim of governmental interference with the assistance of
counsel.14
Moreover, while we recognize the PCRA court belatedly addressed
Appellant’s ineffectiveness claims and governmental interference argument in
its Rule 1925(a) opinion, “[b]y that point, the deprivation of Appellant’s right
to counsel was already a fait accompli.” Betts, 240 A.3d at 622 n.11. As in
Betts, here, it is evident that “the PCRA court neither recognized the
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13Appellant also claims that while he has attempted to obtain documents from
the Franklin County Prison supporting his allegations, he has been unable to
obtain all the relevant documents. Appellant’s Brief at 9 (unpaginated). Thus,
he seeks the assistance of counsel to prove his allegations. See id.
14But see Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010)
(appellant failed to demonstrate “restricted incarceration status of capital
inmates . . . constitutes governmental interference” pursuant to PCRA timing
exception because he did not “show any of the conditions of his incarceration
were illegal, as required to meet the . . . exception”).
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significance of [Appellant’s Rule 907 response], nor considered its contents
prior to dismissing Appellant’s PCRA petition.” Id. at 622 (footnote omitted).
Accordingly, we conclude Appellant is entitled to remand for the
appointment of PCRA counsel to assist him in litigating his allegations
concerning Attorney Hawbaker’s ineffective assistance. See Betts, 240 A.3d
at 624. Thus, we vacate the order dismissing Appellant’s PCRA petition, and
remand for the appointment of counsel to review Appellant’s pro se claims
asserting Attorney Hawbaker’s ineffectiveness, and the filing of a
supplemental brief addressing those claims. See id. at 625. “Thereafter, the
PCRA court shall have the discretion to proceed as it deems fit[,]” including
granting new counsel the opportunity to file an amended PCRA petition on
Appellant’s behalf or denying PCRA relief. Id.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/07/2022
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