Com. v. Madejczyk, C. ( 2022 )


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  • J-S41044-22
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    CARMINE A. MADEJCZYK                       :
    :
    Appellant               :   No. 188 MDA 2022
    Appeal from the PCRA Order Entered January 13, 2022
    In the Court of Common Pleas of Luzerne County Criminal Division at
    No(s): CP-40-CR-0001377-2018
    BEFORE:      LAZARUS, J., MURRAY, J., and STEVENS, P.J.E.*
    MEMORANDUM BY STEVENS, P.J.E.:                 FILED: DECEMBER 19, 2022
    Appellant, Carmine A. Madejczyk, appeals from the order entered in the
    Luzerne County Court of Common Pleas denying as untimely his first petition
    filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A §§ 9541-
    9546.      Appellant's counsel, Matthew Kelly, Esquire (Counsel), has filed
    a Turner/Finley1 brief and application to withdraw as counsel. We vacate the
    PCRA court’s order, deny Counsel’s petition, and remand for further
    proceedings consistent with this decision.
    The PCRA court has filed a Pa.R.A.P. 1925(a) opinion providing a salient
    history of pertinent facts and procedural history relating to the untimely filing
    of the present PCRA petition, as follows:
    ____________________________________________
    *   Former Justice specially assigned to the Superior Court.
    1Commonwealth v. Turner, 
    544 A.2d 927
     (Pa. 1988); Commonwealth v.
    Finley, 
    550 A.2d 213
     (Pa. Super. 1988) (en banc).
    J-S41044-22
    While represented by Assistant Public Defender Brian Corcoran,
    the Defendant [hereinafter referred to as “Appellant”] pleaded
    guilty to one count of aggravated assault, 18 Pa.C.S.A. §
    2702(a)(1) (F1). With the benefit of a presentence investigation
    report (PSI), [the trial court] imposed a lower-end guideline range
    sentence of fifty-four (54) months to one hundred eight (108)
    months incarceration, to be served in a state correctional
    institution. N.T. 7/18/18 at 3-4.
    A counseled motion for reconsideration of sentence was filed on
    Appellant’s behalf, but while that motion was pending, Appellant
    filed a pro se notice of appeal to the Superior Court, and, shortly
    thereafter, a pro se motion for post-conviction collateral relief that
    raised, among other things, an allegation that Attorney Corcoran
    had rendered ineffective assistance. The [trial court] denied the
    counseled motion for reconsideration of sentence, but took no
    action on Appellant’s pro se PCRA petition.
    In light of the allegation of ineffectiveness contained in the pro se
    PCRA petition, the Public Defender’s Office filed a motion for the
    appointment of conflict counsel. Attorney Matthew Kelly was
    appointed, and a counseled direct appeal was filed on September
    11, 2018.fn 1 After Attorney Kelly filed a timely[, court-ordered]
    Rule 1925(b) Statement . . . , [the trial court] filed a responsive
    Rule 1925(a) Opinion and transmitted the record to the Superior
    Court.
    FN 1 Attorney Kelly moved to quash the pro se
    [direct] appeal, and the Superior Court dismissed it as
    duplicative of the counseled appeal.
    Attorney Kelly then filed an Anders [2] brief with the Superior
    Court, seeking to withdraw as counsel. Appellant was notified of
    the request to withdraw. After reviewing the Anders brief and
    making a full examination of the proceedings, the Superior Court
    affirmed Appellant’s judgment of sentence and granted Attorney
    Kelly’s request to withdraw.
    ____________________________________________
    2   Anders v. California, 
    386 U.S. 738
    , 
    87 S.Ct. 1396
    , 
    18 L.Ed.2d 493
     (1967).
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    J-S41044-22
    In the Superior Court’s memorandum opinion, it indicated that
    “[t]he trial court properly took no action on the PCRA petition, as
    a petition for PCRA ‘relief may only be filed after direct appeal is
    concluded.’” [Commonwealth v. Madejczyk, 1524 MDA 2018,
    
    2019 WL 1752806
     at *1, n. 1, unpublished memorandum (Pa.
    Super. filed April 17, 2019)]. Additionally, the Superior Court
    stated that “[t]o the extent that Appellant averred in this
    premature PCRA petition that his plea was unlawfully induced by
    counsel, that claim is properly pursued through the PCRA after
    Appellant’s judgment of sentence becomes final. See 42 Pa.C.S.
    § 9543(a)(2)(iii).” [Madejczyk, 1524 MDA 2018, 
    2019 WL 1752806
     at *4, n. 4.]
    Appellant did not seek review to the Pennsylvania Supreme Court,
    nor did he file a PCRA [petition] to pursue the claim that his plea
    was unlawfully induced by counsel, as suggested by the Superior
    Court’s memorandum. The record was thus returned to [the trial
    court] and stored.
    Then, on June 4, 2020, more than a year after [Appellant’s
    judgment of sentence became final], a motion for the appointment
    of conflict counsel was filed by the Luzerne County Public
    Defender’s Office. In light of the procedural posture of this case,
    as outlined above, where there were no pending matters before
    this (or any) court, [the trial court] denied the motion to appoint
    counsel.
    Nonetheless, when the Public Defender’s Office filed a second
    motion for appointment of conflict counsel [the trial court] granted
    the motion out of an abundance of caution as to the protection of
    Appellant’s rights and appointed Attorney Jeffrey Yelen as conflict
    counsel. Attorney Yelen filed a PCRA petition on Appellant’s
    behalf, seeking to raise a claim that trial counsel’s ineffectiveness
    caused Appellant’s plea to be involuntary. A hearing was held,
    and the parties were permitted to submit briefs, limited to the
    issue of whether Appellant’s request for post-conviction relief was
    timely.
    Based on the testimony at this hearing, the procedural history of
    this case, and the applicable case and statutory law, [the trial
    court] determined that it was without jurisdiction to address the
    merits of Appellant’s request for relief because he had not
    complied with the time requirements of the PCRA.
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    J-S41044-22
    A counseled appeal of the dismissal of Appellant’s PCRA petition
    was filed, and Attorney Michael Kostelaba was appointed to
    represent Appellant for purposes of that appeal.         Attorney
    Kostelaba later requested and was granted permission to
    withdraw as counsel because he was leaving the Office of Conflict
    Counsel, and Attorney Kelly was re-appointed in his stead.
    Attorney Kelly filed a timely Rule 1925(b) Statement, arguing that
    Appellant’s August 13, 2018 pro se PCRA petition was not a legal
    nullity and that the Appellant’s request for post-conviction relief
    should have been deemed timely.
    PCRA Court’s Pa.R.A.P. Opinion, 7/25/2022, at 1-3.
    Preliminarily, we must address Counsel’s motion to withdraw before we
    may proceed to the merits of the claims raised on appeal. Counsel is required
    to adhere to all of the Turner/Finley requirements, stated as follows:
    Counsel petitioning to withdraw from PCRA representation must
    proceed under Turner, supra[,] and Finley, supra[,] and must
    review the case zealously. Turner/Finley counsel must then
    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.
    Where counsel submits a petition and no-merit letter that satisfy
    the technical demands of Turner/Finley, the court—[PCRA] court
    or this Court—must then conduct its own review of the merits of
    the case. If the court agrees with counsel that the claims are
    without merit, the court will permit counsel to withdraw and deny
    relief.
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    Commonwealth v. Doty, 
    48 A.3d 451
    , 454 (Pa. Super. 2012) (original
    brackets and ellipses omitted), quoting Commonwealth v. Wrecks, 
    931 A.2d 717
    , 721 (Pa. Super. 2007).
    Instantly,   Counsel   has   satisfied   the   technical   requirements   of
    Turner/Finley.     In his appellate brief, Counsel raised two issues for our
    review and explained why he deemed the issues meritless. Appellant's Brief
    at 7-8, 11-26. Counsel also filed a petition to withdraw with this Court and
    sent Appellant a no-merit letter pursuant to Commonwealth v. Friend, 
    896 A.2d 607
    , 615 (Pa. Super. 2006) informing him of his right to proceed pro
    se or retain new counsel in this appeal. Appellant has not filed a response to
    Counsel's letter, the appellate brief, or the petition to withdraw. Accordingly,
    we proceed to conduct an independent review of the record to determine if
    the appeal lacks merit.
    In addressing Appellant's appeal, we are mindful of our well-settled
    standard and scope of review of an order denying a PCRA petition. Proper
    appellate review of a PCRA court's denial of a petition is limited to the
    examination of “whether the PCRA court's determination is supported by the
    record and free of legal error.” Commonwealth v. Miller, 
    102 A.3d 988
    ,
    992 (Pa. Super. 2014) (citation omitted). “The PCRA court's findings will not
    be disturbed unless there is no support for the findings in the certified
    record.”   Commonwealth v. Lawson, 
    90 A.3d 1
    , 4 (Pa. Super. 2014)
    (citations omitted). “This Court grants great deference to the findings of the
    PCRA court, and we will not disturb those findings merely because the record
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    could support a contrary holding.” Commonwealth v. Hickman, 
    799 A.2d 136
    , 140 (Pa. Super. 2002) (citation omitted). In contrast, we review the
    PCRA court's legal conclusions de novo. Commonwealth v. Henkel, 
    90 A.3d 16
    , 20 (Pa. Super. 2014) (en banc), appeal denied, 
    101 A.3d 785
     (Pa. 2014).
    We begin by noting that Appellant’s judgment of sentence became final
    on May 17, 2019, after the time to file a notice of appeal to the Pennsylvania
    Supreme Court had expired. See Pa.R.A.P. 903(a) (stating that “the notice
    of appeal required by Rule 902 (manner of taking appeal) shall be filed within
    30 days after the entry of the order from which the appeal is taken.”).
    Accordingly, Appellant had until Monday, May 18, 2020, to file a timely PCRA
    petition. See 42 Pa.C.S.A. § 9545(b)(1). Because the Defender’s Office filed
    its motion seeking PCRA filing rights on behalf of Appellant 17 days beyond
    this date, the motion was patently untimely.
    However, Pennsylvania courts may consider an untimely PCRA petition
    where the petitioner can explicitly plead and prove one of three exceptions:
    (i) 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;
    (ii) the facts upon which the claim is predicated were unknown to
    the petitioner and could not have been ascertained by the exercise
    of due diligence; or
    (iii) the right asserted is a constitutional right that was recognized
    by the Supreme Court of the United States or the Supreme Court
    of Pennsylvania after the time period provided in this section and
    has been held by that court to apply retroactively.
    -6-
    J-S41044-22
    42 Pa.C.S.A. § 9545(b)(1).
    Counsel’s Turner/Finley brief identifies two discrete issues Appellant
    wishes to raise in an attempt to qualify for a statutory exception, and it
    explains why Counsel believes they lack merit. Specifically, each issue claims
    a different exception to the PCRA time-bar, with the first asserting that the
    trial court’s failure to notify Appellant that it would not act on his premature,
    pro se PCRA petition implicates the government interference exception, and
    the second asserting that Conflict Counsel’s failure to advise Appellant that his
    PCRA petition had been ignored as a nullity left him incapable of ascertaining
    this fact, thus implicating the newly-discovered fact exception.
    Turning to the Turner/Finley brief’s first issue, we observe the trial
    court followed well-settled, controlling decisional law when it regarded as a
    legal nullity Appellant’s premature, pro se PCRA petition filed while he was
    represented by counsel. Commonwealth v. Mojica, 
    242 A.3d 949
    , 953 (Pa.
    Super. 2020) (holding it is error for a court to accept a pro se petition from a
    petitioner represented by counsel; PCRA court should consider such a filing to
    be a legal nullity). Similarly, the trial court possessed an alternate basis on
    which to consider the pro se petition a legal nullity, as it was clear Appellant
    did not wish to waive his direct appeal rights given his filing of both a pro se—
    albeit invalid—direct appeal and a subsequent counseled direct appeal.
    Commonwealth v. Smith, 
    244 A.3d 13
    , 16-17 (Pa. Super. 2020) (holding a
    PCRA petition may be filed only after petitioner has waived or exhausted his
    direct appeal rights; PCRA court has no jurisdiction to accept, hold, and later
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    J-S41044-22
    dispose of a premature PCRA petition, which shall instead be deemed a legal
    nullity).
    Thus understood as a legal nullity under our jurisprudence, the
    premature, pro se petition in the case sub judice was to be regarded as if it
    had never been filed in the first place. It was for this reason we observed in
    Appellant’s direct appeal that the trial court properly took no action on the pro
    se PCRA petition. Accordingly, we discern no merit to Appellant’s claim that
    the trial court’s lack of overt action on the pro se petition amounted to
    government interference with his ability to present a timely PCRA petition.
    Appellant’s remaining claim posits that the failure of both Conflict
    Counsel and the Defender’s Office to inform him of the need to file a new PCRA
    petition within one year after judgment of sentence became final entitles him
    to the benefit of the exception for newly-discovered facts as provided in
    Section 9545(b)(1)(ii).
    Our appellate courts have explained:
    The timeliness exception set forth in Section 9545(b)(1)(ii)
    requires a petitioner to demonstrate he did not know the facts
    upon which he based his petition and could not have learned those
    facts earlier by the exercise of due diligence. Commonwealth v.
    Bennett, 
    593 Pa. 382
    , 395, 
    930 A.2d 1264
    , 1271 (2007). Due
    diligence demands that the petitioner take reasonable steps to
    protect his own interests. Commonwealth v. Carr, 
    768 A.2d 1164
    , 1168 (Pa. Super. 2001). A petitioner must explain why he
    could not have learned the new fact(s) earlier with the exercise of
    due diligence. Commonwealth v. Breakiron, 
    566 Pa. 323
    , 330-
    31, 
    781 A.2d 94
    , 98 (2001); Commonwealth v. Monaco, 
    996 A.2d 1076
    , 1080 (Pa. Super. 2010), appeal denied, 
    610 Pa. 607
    ,
    
    20 A.3d 1210
     (2011).         This rule is strictly enforced.    
    Id.
    Additionally, the focus of this exception “is on the newly
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    J-S41044-22
    discovered facts, not on a newly discovered or newly willing source
    for previously known facts.” Commonwealth v. Marshall, 
    596 Pa. 587
    , 596, 
    947 A.2d 714
    , 720 (2008) (emphasis in original).
    Commonwealth v. Brown, 
    111 A.3d 171
    , 176-77 (Pa. Super. 2015).
    “In other words, the “new facts” exception at [S]ubsection (b)(1)(ii) has
    two components, which must be alleged and proved. Namely, the petitioner
    must establish that: 1) the facts upon which the claim was predicated were
    unknown and 2) could not have been ascertained by the exercise of due
    diligence.”     Commonwealth v. Trivigno, No. 1779 EDA 2020, 
    2021 WL 3465926
    , at *3 (Pa. Super. Ct. Aug. 6, 2021).
    It   is    well-settled   that   “a   conclusion   that   previous   counsel
    was ineffective is not a newly discovered fact entitling [a PCRA petitioner] to
    the benefit of the time-bar exception for newly-discovered facts. In sum, a
    conclusion that previous counsel was ineffective is not the type of [newly-
    discovered fact] encompassed by the exception.”             Commonwealth v.
    Mitchell, 
    141 A.3d 1277
    , 1285 (Pa. 2016) (citation omitted).
    There is, however, an exception to this general rule if a PCRA petitioner
    discovers that prior counsel abandoned him. Commonwealth v. Bennett,
    
    930 A.2d 1264
     (Pa. 2007).         See also Commonwealth v. Peterson, 
    192 A.2d 1123
    , 1130 (Pa. 2018) (discussing how ineffectiveness of counsel cannot
    constitute a newly discovered “fact” unless counsel was ineffective per se, that
    is, his or her inaction or malfeasance resulted in the petitioner’s complete
    failure to obtain appellate review). In such cases, a petitioner can satisfy the
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    newly-discovered fact exception if he files the petition within one year of
    learning of the abandonment. 
    Id.
    At the PCRA evidentiary hearing held on May 10, 2021, Appellant
    testified that no one had ever told him that he filed his PCRA petition
    prematurely or improperly such that it represented a legal nullity.        N.T.,
    5/10/21, at 17-18. In fact, he maintained, neither the Public Defender’s Office
    nor Conflicts Counsel who represented him in his direct appeal discussed the
    pro se petition with him, N.T. at 18, and he claimed it was not until he inquired
    sometime in May of 2020 that the Defender’s Office informed him about the
    resolution of his pro se PCRA petition. No testimony was offered to refute
    Appellant’s contention.
    Luzerne County Chief Public Defender Steven Greenwald testified that
    the very reason he recommended the appointment of Conflicts Counsel to
    represent Appellant was because Appellant had filed a pro se PCRA petition
    alleging that his public defender ineffectively handled his guilty plea. Defender
    Greenwald thus expected that Conflicts Counsel would represent Appellant in
    both a direct appeal and a subsequent PCRA filing, and he viewed the
    withdrawal of Conflicts Counsel’s representation during the direct appeal with
    surprise. N.T. at 31.
    Defender Greenwald therefore explained that he had advised the Office
    of Conflict Counsel at the time of its appointment that it had an obligation to
    follow up with Appellant regarding his wish to pursue an ineffective assistance
    claim:
    - 10 -
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    Public Defender Greenwald:          My    first    instance     of
    attempting to protect the rights of Mr. Madejczyk as far as the
    PCRA was concerned was when I originally conflicted it out
    because of his own PCR petition. I spoke with the head of Conflict
    Counsel’s Office and asked him to follow up and make sure that
    whoever this case got assigned to was aware of a PCRA issue and
    raised the issue in a timely way.
    N.T. at 28. Noting that Appellant never received counsel’s advice or assistance
    with respect to filing a proper PCRA petition following direct review, Defender
    Greenwald suggested Appellant had gone without representation during the
    relevant timeframe. N.T. at 39.
    Under the particular circumstances of the present case, we agree with
    the Chief Public Defender’s assessment that Appellant’s failure to file a timely
    PCRA petition was the product of the abandonment of counsel at the end of
    direct review. It is apparent from the present record that Appellant wished to
    pursue an ineffectiveness claim against the Defender’s Office through a PCRA
    petition, and the Chief Public Defender specifically notified the Conflicts
    Counsel’s Office of this fact at the time reassignment of Appellant’s
    representation was proposed. Defender Greenwald believed at this time that
    Conflicts Counsel would represent Appellant in both the direct appeal and, if
    still necessary, a collateral appeal under the PCRA.
    Furthermore, while we observed on direct appeal that the trial court
    properly regarded Appellant’s pro se petition a legal nullity and took no action
    thereon, we are constrained, nonetheless, also to observe that our
    memorandum decision affirming judgment of sentence did not explicitly state
    - 11 -
    J-S41044-22
    in the most direct terms that Appellant would be required to file a new PCRA
    petition raising his ineffectiveness claim once he had exhausted his direct
    appeal rights.3 As such, it would not have represented a lack of due diligence
    on Appellant’s part if, left to his own layperson’s interpretation of this passage
    as he apparently was, he misconstrued it to mean his petition would undergo
    PCRA court review only after judgment of sentence became final.4
    Concluding that the record supports Appellant’s newly-discovered fact
    exception to the PCRA time bar, we deny counsel’s petition to withdraw,
    vacate the order entered below, and remand to the PCRA court, where
    appointed counsel shall file a first PCRA petition on Appellant’s behalf raising
    and developing his claim of ineffective assistance of plea counsel along with
    any other claim that counsel considers appropriate.
    ____________________________________________
    3 As noted supra, our memorandum decision stated, ““[t]o the extent that
    Appellant averred in this premature PCRA petition that his plea was unlawfully
    induced by counsel, that claim is properly pursued through the PCRA after
    Appellant’s judgment of sentence becomes final.           See 42 Pa.C.S. §
    9543(a)(2)(iii).”
    4  Of further note on Appellant’s due diligence in filing a timely PCRA petition
    was Chief Public Defender Greenwald’s testimony that Appellant contacted the
    Defender’s Office and inquired about his PCRA petition prior to the May 18,
    2020 expiration of the PCRA’s one-year filing deadline applicable to his case.
    In this respect, Defender Greenwald opined that the newly emergent Covid
    pandemic was causing significant case processing delays in his office, and he
    estimated that were it not for the pandemic his office would have timely filed
    its motion for the appointment of Conflicts Counsel to represent Appellant in
    the PCRA matter approximately 21 days earlier than its eventual June 4, 2020
    filing date. N.T. at 28-30.
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    J-S41044-22
    Order vacated. Petition to withdraw denied. Case remanded for further
    proceedings consistent with this decision. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/19/2022
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