Com. v. Hernandez-Andino, E. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
EUGENIO HERNANDEZ-ANDINO :
:
Appellant : No. 1448 EDA 2022
Appeal from the PCRA Order Entered May 6, 2022
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0000519-2015
BEFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM BY PANELLA, P.J.: FILED APRIL 10, 2023
Eugenio Hernandez-Andino appeals, pro se, from order denying his
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). See
42 Pa.C.S.A. §§ 9541-9546. This matter returns to us following our prior
remand to the PCRA court to resolve issues involving Hernandez-Andino’s
rule-based right to counsel during PCRA review. Hernandez-Andino again
argues he was deprived of his right to counsel, and he asserts the PCRA court
erred by denying his PCRA petition without a hearing. We conclude Hernandez-
Andino’s claims to do not entitle him to relief and affirm the PCRA court’s
order.
In 2017, Hernandez-Andino was convicted of first-degree murder and
sentenced to life in prison. This Court affirmed Hernandez-Andino’s judgment
of sentence. See Commonwealth v. Hernandez-Andino, 203 A.3d 307,
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118 EDA 2018 (Pa. Super. filed Dec. 12, 2018) (unpublished memorandum).
The Pennsylvania Supreme Court denied allowance of appeal.
On July 22, 2019, Hernandez-Andino, pro se, filed a timely PCRA petition
raising several ineffective assistance of counsel claims. The PCRA court
appointed Matthew J. Rapa, Esquire, as PCRA counsel. Attorney Rapa did not
file an amended PCRA petition on Hernandez-Andino’s behalf and instead filed
a motion to withdraw as counsel and a Turner/Finley1 no-merit letter. The
PCRA court granted Attorney Rapa’s motion to withdraw. The PCRA court then
scheduled an evidentiary hearing and ordered Attorney Rapa to turn over all
materials to Hernandez-Andino. Attorney Rapa appeared at the hearing, but
Hernandez-Andino represented himself. The PCRA court subsequently denied
the PCRA petition.
On appeal, this Court found the PCRA court apparently took the
contradictory positions that Hernandez-Andino’s PCRA claims lacked merit,
and that there were material issues of fact which necessitated an evidentiary
hearing. We concluded that Hernandez-Andino had been deprived of his right
to counsel when the PCRA court held an evidentiary hearing after permitting
counsel to withdraw.2 See Commonwealth v. Hernandez-Andino, 260
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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2As we noted in our prior decision, the transcripts of this evidentiary hearing
are not contained in the certified record.
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A.3d 136, 900 EDA 2020 (Pa. Super. filed July 13, 2021) (unpublished
memorandum at 5-6) (“The PCRA court’s decision to allow counsel to withdraw
pursuant to Turner and Finley should have signaled that it was able to
conclude from the record that [Hernandez-Andino’s] claims were wholly
without merit, and no further proceedings were necessary. However, when
the PCRA court subsequently determined that a Rule 908 hearing was
warranted, [Hernandez-Andino’s] right to counsel re-attached.”); see also
Pa.R.Crim.P. 908(C) (“The judge shall permit the defendant to appear in
person at the hearing and shall provide the defendant an opportunity to have
counsel.”).
Additionally, there was no indication from the record that Hernandez-
Andino wished to proceed pro se or that the PCRA court conducted a Grazier3
hearing to determine whether he waived his right to counsel. We therefore
vacated the order denying the PCRA petition and directed the PCRA court as
follows:
The PCRA court must initially determine whether [Hernandez-
Andino] remains indigent and, if so, whether he desires to have
counsel appointed. If [Hernandez-Andino] wishes to proceed pro
se, the PCRA court must conduct a Grazier hearing. If [he] wishes
to have counsel, the PCRA court must appoint new counsel and
conduct a new evidentiary hearing on the claims raised in
[Hernandez-Andino’s] PCRA petition after counsel has had a
reasonable opportunity to prepare. … The PCRA court may then
rule on the merits of [Hernandez-Andino’s] PCRA claims by
entering a new final order.
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3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Hernandez-Andino, 900 EDA 2020 (unpublished memorandum at 6).
Because the judge who presided over the initial PCRA proceedings
retired, this matter was reassigned to a new PCRA court for remand
proceedings. On July 16, 2021, the PCRA court appointed Sean Poll, Esquire,
as PCRA counsel. Following a hearing, the PCRA court found that Hernandez-
Andino remained indigent and directed Attorney Poll to file an amended PCRA
petition or a Turner/Finley letter. Attorney Poll filed a motion to withdraw as
counsel and a Turner/Finley no-merit letter. Hernandez-Andino filed a pro se
brief in opposition, stating that he “has absolutely no intention of waiving his
rule based right to counsel.” Brief in Opposition, 3/11/22, at 4. The PCRA court
conducted another hearing, after which it granted Attorney Poll permission to
withdraw.4
The PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss
Hernandez-Andino’s PCRA petition without a hearing. Hernandez-Andino filed
a pro se response, again challenging Attorney Poll’s withdrawal and requesting
new counsel to help him litigate his PCRA petition. On May 6, 2022, the PCRA
court denied Hernandez-Andino’s PCRA petition. Hernandez-Andino filed a
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4 These transcripts are also absent from the certified record.
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timely, pro se notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal.5
Hernandez-Andino now argues that he was deprived of his right to
counsel on remand because Attorney Poll withdrew from representation
without amending the pro se PCRA petition. See Appellant’s Brief at 7-10.
Similarly, Hernandez-Andino claims Attorney Poll rendered ineffective
assistance by withdrawing from representation without addressing
Hernandez-Andino’s pro se claims in an amended PCRA petition. See id.Hernandez-Andino additionally asserts the PCRA court erred by failing to hold
an evidentiary hearing on his underlying challenges to trial counsel’s
representation. See id. at 11-12. Hernandez-Andino generally claims the
failure to hold a hearing violated his due process rights. See id. at 12.
Appellate review of the denial of PCRA relief is limited to whether the
court’s findings of fact are supported by the record and its legal conclusions
are free from error. See Commonwealth v. Maddrey, 205 A.3d 323, 327
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5 We acknowledge that this Court’s prior order did not explicitly contemplate
the withdrawal of newly-appointed PCRA counsel. However, at that juncture,
we had been presented with a direct conflict between the permissive
withdrawal of counsel and the PCRA court’s subsequent decision to hold an
evidentiary hearing. Here, on the other hand, new PCRA counsel reviewed
Hernandez-Andino’s claims and concluded that they lack merit. The PCRA
court then determined there were no issues of material fact warranting an
evidentiary hearing. Hernandez-Andino was at no point forced to represent
himself during the remand proceedings. Though the text of our prior order
directed the PCRA court to conduct a new evidentiary hearing, we decline to
require the PCRA court to conduct a new hearing under these circumstances.
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(Pa. Super. 2019) (citation omitted). Moreover, a PCRA petitioner has no
absolute right to an evidentiary hearing, and a PCRA court has discretion to
deny a petition without a hearing “if the PCRA court determines that the
petitioner’s claim is patently frivolous and is without a trace of support in
either the record or from other evidence.” Commonwealth v. Hart, 911 A.2d
939, 941 (Pa. Super. 2006) (citation omitted). When a PCRA court does not
conduct an evidentiary hearing, an appellant must establish that he raised an
issue of material fact which would entitle him to relief if resolved in his favor.
See Commonwealth v. Paddy, 15 A.3d 431, 467 (Pa. 2011).
Our case law makes clear that a PCRA petitioner is only entitled to “an
independent review of the record by competent counsel” in collateral
proceedings. Turner, 544 A.2d at 928 (citation omitted); see also Finley,
550 A.2d at 215. So long as appointed counsel complies with the
Turner/Finley procedure, and the PCRA court agrees with counsel’s
assessment that the petitioner’s asserted claims are meritless, counsel will be
permitted to withdraw. See Turner, 544 A.2d at 928-29; see also id. at 929
(“The same procedure should be followed at any stage of the collateral
proceedings, whether in a trial or appellate court.”).
Here, Attorney Poll concluded, after a thorough review of the record,
that there were no meritorious issues to raise on Hernandez-Andino’s behalf.
See Motion to Withdraw, 2/17/22. Attorney Poll filed a no-merit letter
identifying the claims Hernandez-Andino wished to raise and explaining why
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each claim lacks merit. Satisfied with Attorney Poll’s compliance with the
Turner/Finley procedure, the PCRA court granted him permission to
withdraw as counsel. Therefore, Hernandez-Andino’s rule-based right to
counsel was satisfied during the remand proceedings.
Moreover, in granting Attorney Poll’s motion to withdraw, the PCRA
court necessarily determined that there were no material factual disputes
requiring an evidentiary hearing. Hernandez-Andino fails to articulate any
remaining issues of material fact in support of his claim that he was entitled
to an evidentiary hearing. See Commonwealth v. Watkins, 108 A.3d 692,
735 (Pa. 2014) (concluding appellant’s bald assertion that his PCRA claims
involved “legitimate material factual disputes” did not establish the PCRA court
erred by denying his PCRA petition without a hearing); see also Paddy, 15
A.3d at 467.6 Therefore, we cannot conclude the PCRA court abused its
discretion by denying Hernandez-Andino’s PCRA petition without a hearing.
Order affirmed.
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6 Hernandez-Andino also failed to fully develop his underlying ineffective
assistance of counsel claims in his PCRA petition, his response to the Rule 907
notice, or his appellate brief. See Commonwealth v. Natividad, 938 A.2d
310, 322 (Pa. 2007) (“A PCRA petitioner must exhibit a concerted effort to
develop his ineffectiveness claim and may not rely on boilerplate allegations
of ineffectiveness.”). Even if we were to reach the merits of his claims, we
would affirm based on the PCRA court’s analysis. See PCRA Court Opinion,
7/1/22, at 2-6 (unnumbered).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2023
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