Com. v. Shoemaker, J. ( 2020 )

J-S30029-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JERRY LYNN SHOEMAKER :
:
Appellant : No. 1838 WDA 2019
Appeal from the PCRA Order Entered November 14, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0015512-2008
BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 07, 2020
Jerry Lynn Shoemaker appeals from the order entered on November 14,
2019, which dismissed as frivolous his most recent petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We
affirm.
On April 14, 2010, a jury convicted Shoemaker of rape of a child,
involuntary deviate sexual intercourse with a child, aggravated indecent
assault, indecent assault of a person less than 13 years of age, endangering
welfare of children, and corruption of minors. 1 He was sentenced to an
aggregate sentence of 25 to 50 years of incarceration. Shoemaker filed a
counseled direct appeal to this Court, and we affirmed the judgment of
____________________________________________
* Former Justice specially assigned to the Superior Court.
118 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(a)(7), 3126(a)(7), 4304(b), and
6301(a)(1), respectively.
J-S30029-20
sentence on February 8, 2012. Commonwealth v. Shoemaker, No. 1845
WDA 2010 (Pa.Super. filed Feb. 8, 2012) (unpublished memorandum), appeal
denied, No. 97 WAL 2012 (Pa. order filed Dec. 31, 2012).
On December 30, 2013, Shoemaker filed a counseled PCRA petition,
alleging ineffectiveness of trial counsel. After a hearing, the PCRA court
dismissed Shoemaker’s petition. Shoemaker thereafter filed an appeal to this
Court, and we affirmed. Commonwealth v. Shoemaker, No. 716 WDA 2017
(Pa.Super. filed Nov. 28, 2018) (unpublished memorandum), appeal denied,
No. 501 WAL 2018 (Pa. order filed May 30, 2019).
Shoemaker, acting pro se, filed the instant PCRA petition on July 9,
2019, alleging, inter alia, ineffectiveness of PCRA counsel and a Brady2
violation, and requested the appointment of counsel. The PCRA court
thereafter sent Shoemaker a Pa.R.Crim.P. 907 notice of intent to dismiss his
petition and Shoemaker filed a response. The PCRA court dismissed the
petition on November 14, 2019 and Shoemaker filed a pro se appeal. Shortly
thereafter, Shoemaker retained private counsel who entered his appearance
on December 11, 2019. Shoemaker’s counsel filed an appeal the next day and
Shoemaker’s previous pro se appeal was discontinued. The PCRA court
ordered Shoemaker to file a concise statement of errors complained of on
appeal, and counsel filed same on January 6, 2020. Shoemaker now raises
one issue for our review:
____________________________________________
2 Brady v. Maryland, 373 U.S. 83 (1963).
-2-
J-S30029-20
Did the PCRA [c]ourt err in failing to grant Shoemaker’s
request for the appointment of counsel where he pled non-
frivolous claims the presentation of which was hindered by
his lack of legal expertise such that appointment of counsel
was required in the interests of justice pursuant to
Pa.R.Crim.P. 904(E)?
Shoemaker’s Br. at 4.
“Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error.” Commonwealth v. Beatty,
207 A.3d 957, 960-61 (Pa.Super. 2019) (citation omitted). “We afford the
court’s factual findings deference unless there is no support for them in the
certified record.” Commonwealth v. Greco, 203 A.3d 1120, 1123 (Pa.Super.
2019) (citation omitted).
Shoemaker argues that the PCRA court erred in denying his request for
the appointment of counsel in the instant PCRA petition. Shoemaker’s Br. at
11. Shoemaker recognizes that he was not entitled to the mandatory
appointment of counsel since this was not his first PCRA petition. Id. However,
Shoemaker contends that “his assertion of non-frivolous claims of ineffective
assistance of initial PCRA counsel that may implicate the doctrine of ineffective
assistance of counsel per se, as well as a claim of a violation of Brady, which
claims he could not previously have presented, warrant the appointment of
counsel to research and, if appropriate, cogently present, his claims in the
interest of justice pursuant to Pa.R.Crim.P. 904(E).” Id.-3-
J-S30029-20
Shoemaker asserts that Pennsylvania Rule of Criminal Procedure
904(E), discussed infra, “should be interpreted, at a minimum, to require
appointment of counsel in cases like his where a petitioner is raising non-
frivolous, newly accrued claims that have never been reviewed, much less
cogently articulated, by an attorney.” Id. at 16 (footnote omitted). According
to Shoemaker, “if Rule 904 is not interpreted to require the appointment of
counsel where petitioners raise non-frivolous claims they could not previously
have raised, petitioners’ ability to have them evaluated, and, if appropriate,
advanced by competent counsel, will be subject to the arbitrary whims of the
particular jurist presiding over their cases, a result that arguably violates equal
protection principles, and, in any event, is plainly unfair and unjust.” Id. at
17. Shoemaker requests that this matter be remanded to the PCRA court with
instructions to enter an order appointing counsel and reinstating his right to
file an amended PCRA petition nunc pro tunc. Id. at 26.
Pennsylvania Rule of Criminal Procedure 904 provides, in pertinent part:
***
(C) Except as provided in paragraph (H) [regarding
appointment of counsel in death penalty cases], when an
unrepresented defendant satisfies the judge that the
defendant is unable to afford or otherwise procure counsel,
the judge shall appoint counsel to represent the defendant
on the defendant’s first petition for post-conviction collateral
relief.
(D) On a second or subsequent petition, when an
unrepresented defendant satisfies the judge that the
defendant is unable to afford or otherwise procure counsel,
and an evidentiary hearing is required as provided in Rule
-4-
J-S30029-20
908, the judge shall appoint counsel to represent the
defendant.
(E) The judge shall appoint counsel to represent a defendant
whenever the interests of justice require it.
Pa.R.Crim.P. 904(C)-(E). The Comment to Rule 904 states:
Consistent with Pennsylvania post-conviction practice, it is
intended that counsel be appointed in every case in which a
defendant has filed a petition for post-conviction collateral
relief for the first time and is unable to afford counsel or
otherwise procure counsel. However, the rule now limits
appointment of counsel on second or subsequent petitions
so that counsel should be appointed only if the judge
determines that an evidentiary hearing is required. Of
course, the judge has the discretion to appoint counsel
in any case when the interests of justice require it.
Pa.R.Crim.P. 904 cmt. (first emphasis in original, subsequent emphasis
added).
Thus, it is clear from Rule 904 that a PCRA petitioner is not entitled to
counsel for a successive PCRA petition. Rather, on a successive petition, a
petitioner is only entitled to the appointment of counsel if he or she is indigent
and an evidentiary hearing is necessary, or “whenever the interests of justice
require it.” Pa.R.Crim.P. 904(D),(E). Shoemaker contends that he was entitled
to the appointment of counsel because the “the interests of justice require[d]
it” pursuant to Rule 904(E). Shoemaker’s Br. at 11, 23. Shoemaker’s claim is
without merit.
Significantly, the PCRA court made a specific finding that it denied
Shoemaker’s request for the appointment of counsel because his instant PCRA
petition was a successive petition and “the interests of justice [did] not require
-5-
J-S30029-20
it.” PCRA Court Opinion, filed Jan. 29, 2020, at 5. As the Comment to Rule
904 makes clear, the judge has the discretion to appoint counsel when the
interests of justice require it. Since this was not Shoemaker’s first petition, he
was not entitled to appointed counsel and the PCRA court did not err in
denying his request after determining that the interests of justice did not
require the appointment of counsel. This Court declines to adopt Shoemaker’s
interpretation of Rule 904.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2020
-6-