Com. v. Munoz-Rodriguez, A. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANGEL MIGUEL MUNOZ-RODRIGUEZ :
:
Appellant : No. 285 MDA 2022
Appeal from the PCRA Order Entered January 19, 2022
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0000334-2020
BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: MARCH 21, 2023
Angel Miguel Munoz-Rodriguez, Appellant, appeals from the order
dismissing his first, timely petition for relief filed under the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Appellant’s second court-
appointed counsel, Jamison Entwistle, Esq., has filed a petition to withdraw
and accompanying brief pursuant to Turner/Finley,1 and Appellant has filed
a pro se brief. We vacate the PCRA court’s order and remand for the
appointment of new counsel.
The PCRA petition concerned Appellant’s guilty plea to one count of
failing to register as a sex offender, for which Appellant received a negotiated
sentence of 27 to 60 months of incarceration. The parties have framed the
issue as whether the Pennsylvania State Police (“PSP”) correctly determined
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1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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that Appellant must register as a sexual offender for life. The basis for
Appellant’s Sexual Offenders Registration and Notification Act (“SORNA”), 42
Pa.C.S. §§ 9799.51-9799.75, obligations is Appellant’s plea in Maryland on
August 7, 2003, to what Maryland describes as a sexual offense in the third
degree. Appellant pled guilty to the subsection criminalizing “engag[ing] in
sexual contact with another if the victim is under the age of 14 years, and the
person performing the sexual contact is at least 4 years older than the
victim[.]” Md. Code Ann., Crim. Law § 3-307. The factual basis for his plea
was that Appellant inserted his fingers into a twelve-year old’s vagina.
Appellant received a sentence of time served and two years of supervised
probation. Turner/Finley Brief at 18.
Appellant moved to Pennsylvania sometime in 2004, and the PSP
determined that Appellant’s Maryland conviction required him to register as a
sexual offender with the PSP for life. Appellant was arrested on February 11,
2020, for failing to register as required. On November 10, 2020, Appellant
entered a plea to one count of failing to comply with the registration
requirements imposed under Subchapter I of SORNA, pursuant to 18 Pa.C.S.
§ 4915.2. Specifically, Appellant was convicted of violating the following
provision:
(a) Offense defined.--An individual who is subject to
registration under 42 Pa.C.S. § 9799.55(a), (a.1) or (b) (relating
to registration) or who was subject to registration under former
42 Pa.C.S. § 9793 (relating to registration of certain offenders for
ten years) commits an offense if the individual knowingly fails to:
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(2) verify the individual’s residence or be photographed as
required under 42 Pa.C.S. § 9799.60 (relating to verification
of residence); ….
18 Pa.C.S. § 4915.2(a)(2).
Section 9799.55(b) provided the basis for Appellant’s registration
obligations. That subsection mandates lifetime reporting obligations for
individuals convicted in this Commonwealth of five offenses, including
aggravated indecent assault. 42 Pa.C.S. § 9799.55(b)(2)(i)(A). This lifetime
period of registration also applies to offenders who were convicted “of offenses
similar to the crimes cited in subparagraph (i) under the laws of … another
state[.]” 42 Pa.C.S. § 9799.55(b)(2)(ii). The parties have represented that
Appellant’s registration obligations were solely mandated by the PSP’s
determination that his Maryland offense was “similar to” aggravated indecent
assault.
Appellant ultimately pled guilty to the failure to register offense as a
felony of the second degree.2 Appellant filed a post-sentence motion but did
not file a direct appeal. Within one year of his judgment of sentence becoming
final, Appellant filed a pro se PCRA petition, which was ultimately denied on
January 19, 2022. As recounted in the Turner/Finley brief, the pro se PCRA
petition asserted, among other claims, that “the [PSP] erroneously classified
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2 The Commonwealth’s criminal information stated that Appellant was subject
to the enhancement codified at Section 4915.2(c)(3), which applies when the
defendant has previously been convicted of failing to register and increases
the grading to a felony of the first degree. See Criminal Information, 4/20/20,
at 1. The Commonwealth later amended the charge to a felony of the second
degree, presumably as part of the plea bargain.
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Appellant’s Maryland conviction as a violent felony crime and therefore[]
incorrectly classified him as a lifetime sex offender registrant.” Turner/Finley
Brief at 6. According to Appellant, his Maryland offense was “similar to” one
of the Pennsylvania offenses that requires only a ten-year period of
registration. “In essence, the PCRA [p]etition argued that … Attorney Kristin
Rice provided ineffective assistance of counsel” in recommending that
Appellant accept the plea. Id.
The PCRA court appointed Attorney Thomas Nell to represent Appellant.
On November 9, 2021, Attorney Nell and Appellant apparently agreed during
a video conference with the Commonwealth and the PCRA court that an
evidentiary hearing was unnecessary since the petition presented a pure
question of law, i.e., whether Appellant had to register for life in Pennsylvania
due to his Maryland conviction. Id. The PCRA court ordered both parties to
file a memorandum of law within 45 days.
Confusingly, Attorney Nell then filed on December 10, 2021, a document
captioned “Memorandum of Law,” which purported to find no merit to
Appellant’s claims.3 Attorney Nell stated that, “[u]pon further research”
following the video conference, he is “not in agreement [with Appellant] …
that the 10[-]year registration requirement should have been implemented.”
Memorandum of Law, 12/10/21, at 1 ¶ 5. Attorney Nell then referenced
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3The Commonwealth did not file a memorandum, presumably due to Attorney
Nell’s filing. The Commonwealth has also declined to file a brief in this matter,
relying on the PCRA court’s opinion and the Turner/Finley brief.
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Appellant’s own legal arguments, as set forth in a pro se memorandum of law
that Attorney Nell attached to this filing. Attorney Nell explained why he
disagreed with Appellant’s arguments, but otherwise made no evaluation of
the claim. Attorney Nell then stated that he sent Appellant a “no merit” letter,
which was not docketed with the PCRA court. Instead, Attorney Nell attached
this document to his “Memorandum of Law,” as well as Appellant’s pro se
memorandum. Attorney Nell also informed Appellant that he would be filing
a motion to withdraw as counsel, while assuring Appellant that the PCRA court
would address the pro se memorandum of law.
The PCRA court thereafter issued an order on January 19, 2022, denying
the PCRA petition. The order informed Appellant that Attorney Nell would file
an appeal if requested. Attorney Nell then filed a petition to withdraw on
January 31, 2022, explaining that Appellant wished to raise allegations of
Attorney Nell’s ineffectiveness. The PCRA court thereafter granted the petition
to withdraw. Following Attorney Nell’s withdrawal, Appellant filed a timely pro
se notice of appeal on February 3, 2022. The PCRA court ordered Appellant
to file a concise statement of matters complained of on appeal. Appellant
responded, asserting, inter alia, that Attorney Nell “failed and refused to
address discreet [sic] issues upon seeking to withdraw[.]” Concise Statement,
3/15/22, at 1.
Because Appellant’s notice of appeal raised claims of PCRA counsel
ineffectiveness, pursuant to a procedure authorized following
Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), this Court remanded
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for a determination of whether Appellant was entitled to appointed counsel to
raise those claims. The PCRA court thereafter appointed Attorney Entwistle,
who then filed a Turner/Finley brief.
When presented with a brief pursuant to Turner/Finley, we first
determine whether the brief meets the procedural requirements
of Turner/Finley. See Commonwealth v. Wrecks, 931 A.2d
717, 721 (Pa. Super. 2007). A Turner/Finley brief must: (1)
detail the nature and extent of counsel’s review of the case; (2)
list each issue the petitioner wishes to have reviewed; and (3)
explain counsel’s reasoning for concluding that the petitioner’s
issues are meritless. Commonwealth v. Pitts, 981 A.2d 875,
876 n.1 (Pa. 2009). Counsel must also send a copy of the brief
to the petitioner, along with a copy of the petition to withdraw,
and inform the petitioner of the right to proceed pro se or to retain
new counsel. Wrecks, 931 A.2d at 721. If the brief meets these
requirements, we then conduct an independent review of the
petitioner's issues. Commonwealth v. Muzzy, 141 A.3d 509,
511 (Pa. Super. 2016).
Commonwealth v. Knecht, 219 A.3d 689, 691 (Pa. Super. 2019).
The Turner/Finley brief complies with all procedural requirements.
The brief identifies the issues that Appellant wished to raise, including the
claims of ineffective assistance of initial PCRA counsel, and the brief
establishes that counsel thoroughly reviewed the relevant materials. Counsel
sent Appellant a copy of the brief and accompanying petition to withdraw, and
informed Appellant of his right to proceed pro se. Appellant has filed a pro se
brief, which we shall consider in conducting our independent review. See
Commonwealth v. Walters, 135 A.3d 589 (Pa. Super. 2016) (indicating
that, when conducting review under Turner/Finley, this Court shall consider
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the brief filed by counsel as well as any pro se brief filed by the appellant).
Appellant raises the following issues for our review:
1. Whether [the PCRA] court erred and abused its discretion in
failing to consider the facts of this matter, that render its out-of-
state equivalency determination, for sexual offender registration
purposes, patently erroneous, as: (a) the required culpability
element and the gravity of the offenses have been ignored, (b)
Appellant’s Maryland plea agreement and sentence did not require
sexual offender registration, (c) if Subchapter I required
registration, the Act imposes only a ten[-]year registration
period[] that has expired, [and] (d) an ex post facto violation
exists if lifetime reporting is imposed for a foreign crime occurring
in 2003, for which Appellant had no notice….
2. Whether [the PCRA] court, in ruling on a PCRA [petition], erred
and abused its discretion in accepting appointed PCRA counsel,
Thomas Nell’s no-merit letter when Thomas Nell failed and refused
to address discreet [sic] issues upon seeking to withdraw, such
that: (a) Appellant was not required to register as a sex offender
in Maryland upon his plea in 2003; and (b) the [PSP’s] equivalency
determination was erroneous as a matter of law as being based
on perceived conduct and forgetting [sic] culpability, and was
achieved absent required notice, resulting in an invalid
adjudication under Administrative Agency Law; and (c) the
aggravated indecent assault crime, in Pennsylvania, is a “crime of
violence,” and lacks the mens rea component proscribing conduct
designed, either for normal sexual congress, or, to arouse or
gratify sexual desire; and (d) utilizing Subchapter I to impose a
lifetime reporting requirement, to a foreign crime that lacked any
element of “violence” results in an ex post facto violation. All of
which render Thomas Nell’s representation to have been
constitutionally ineffective.
Pro se Brief at 4-5.
“Our review of a PCRA court’s decision is limited to examining whether
the PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Hanible,
30 A.3d 426, 438 (Pa. 2011).
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Appellant’s brief asks us to address Attorney Nell’s ineffectiveness as
well as the underlying claims of trial counsel ineffectiveness that he wished to
pursue. Attorney Entwistle’s Turner/Finley brief begins by concluding that
any allegation of PCRA counsel ineffectiveness is waived. According to
Attorney Entwistle, “Appellant’s claim that [Attorney Nell] was ineffective is
not properly before this Honorable Court. Appellant’s PCRA Petition on appeal
cites ineffective assistance of trial counsel, Kristin Rice, Esquire, only. Claims
of Attorney Nell’s ineffectiveness would be properly raised in a separate PCRA
[a]ction.” Turner/Finley Brief at 11 (emphasis in original).
We disagree. As cited in our remand order, Bradley authorizes the
presentation of PCRA counsel ineffectiveness claims. Appellant raised his
PCRA counsel ineffectiveness claims at the first opportunity to do so. See
Commonwealth v. Parrish, 273 A.3d 989, 1002 (Pa. 2022) (applying
Bradley and concluding that a layered claim of ineffective assistance of trial
and initial PCRA counsel was preserved by “raising it at the first opportunity
to do so, specifically in his Corrected 1925(b) Statement and in his brief filed
with this Court in this appeal”). Appellant similarly raised his ineffectiveness
claims at the first opportunity to do so and has briefed those arguments in his
pro se brief. Attorney Nell’s stewardship is therefore properly before this
Court.
Moreover, we conclude that Appellant has established Attorney Nell was
ineffective and remand for further proceedings. According to established
precedent, Attorney Nell’s ineffective representation deprived Appellant of his
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right to counsel during his first PCRA proceeding. We therefore decline to
address the underlying claims of ineffective assistance of plea counsel.4
Initially, we observe that Attorney Nell created significant confusion by
purporting to file a “no merit” letter while simultaneously incorporating
Appellant’s pro se memorandum of law. As this Court explained in
Commonwealth v. Johnson, 179 A.3d 1153, 1157 (Pa. Super. 2018), “[i]t
is incumbent upon counsel to examine the merits of the pro se claims and
determine whether those issues are worth pursuing in an amended petition.”
Pro se claims cannot be incorporated by reference and are waived if an
amended petition is filed. Id. Here, Attorney Nell attempted to
simultaneously file a “no merit” letter while also offering Appellant’s own brief
as a separate matter for the PCRA court to decide. This created confusion as
to whether the PCRA court granted the “no merit letter”—presumably not,
since the order informed Appellant that Attorney Nell would continue to
represent Appellant—or whether it addressed Appellant’s “amended” petition
on the merits.
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4While we decline to address the merits, we note that Attorney Nell, the PCRA
court, and Attorney Entwistle addressed the comparability of the crimes based
on the facts and not the comparative elements. In general, the facts of a
crime may be consulted in only limited circumstances and only for limited
purposes. See generally A.L. v. Pennsylvania State Police, 274 A.3d
1228 (Pa. 2022) (examining the statutory language “similar to” as contained
within Subchapter H of SORNA); Commonwealth v. Vandyke, 157 A.3d
535, 538 (Pa. Super. 2017) (comparing elements of New York statute to
Pennsylvania statute where Pennsylvania recidivist provision required that the
out-of-state offenses be “similar” to Pennsylvania statute).
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The problem with the PCRA court’s order is that, in either case, it is
legally erroneous. If the PCRA court ruled on the “no merit” letter, that ruling
cannot stand because Attorney Nell failed to follow the proper procedure. If
the PCRA court intended to rule on the merits of the “amended” petition, that
too is error: Attorney Nell did not amend the petition and instead chose to
present Appellant’s pro se materials in lieu of his own argument. Either way,
the order must be vacated.
Attorney Nell initially believed that Appellant had presented a viable
issue worthy of an amended petition, as corroborated by the video conference
and decision to file a memorandum of law on a question of law. According to
the certified record, Attorney Nell later came to believe that Appellant’s claim
lacked merit. But the proper course at that juncture was to file a “no merit”
letter. As this Court explained in Commonwealth v. Kelsey, 206 A.3d 1135(Pa. Super. 2019):
If PCRA counsel seeks to withdraw on the ground that the issues
raised by the PCRA petitioner are without merit, he must satisfy
the following requirements: he must file a sufficient no-merit
letter, send the PCRA petitioner copies of the application to
withdraw and no-merit letter, and advise the PCRA petitioner of
his right to proceed pro se or with a privately retained attorney.
The no-merit letter must set forth: 1) the nature and extent of
counsel’s review of the case; 2) each issue that the petitioner
wishes to raise on appeal; and 3) counsel’s explanation of why
each of those issues is meritless. Where PCRA counsel’s no-merit
letter does not discuss all of the issues that the convicted
defendant has raised in a first PCRA petition and explain why they
lack merit, it does not satisfy these mandatory requirements and
dismissal of the PCRA petition without requiring counsel to file an
amended PCRA petition or a further, adequate no-merit letter is a
deprivation of the right to counsel on the PCRA petition.
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Id. at 1139 (citations omitted).
The fact that the PCRA court addressed the merits of the claim that
Attorney Nell initially concluded was worthy of an amended petition is of no
moment. As Kelsey explained:
We recognize that the PCRA court conducted an independent
review of the claims that it believed were asserted in the PCRA
petition and that its review went beyond PCRA counsel’s
inadequate no-merit letter. The error here, however, is the denial
of the assistance of counsel, not the sufficiency of the PCRA court’s
opinion or whether [the a]ppellant’s claims in his PCRA petition
are meritorious. Even where a pro se first PCRA petition appears
on its face to be meritless, the defendant is entitled to
representation by counsel before that determination is made.
Id. at 1140 (citations omitted).
Moreover, Appellant has consistently maintained that he wished to call
Attorney Rice to testify concerning her advice to enter a guilty plea in lieu of
presenting a challenge to the PSP’s classification.5 We acknowledge that
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5 In his pro se petition, Appellant argued that “issues of fact exist as to
counsel’s conduct … that will require an evidentiary hearing to resolve, and
[Appellant] seeks to examine Kristin Rice, Esq., of the Adams County Public
Defender’s Office[.]” Pro se PCRA Petition, 8/9/21, at 16 ¶ 43. When Attorney
Nell sought to withdraw by the January 31, 2022 filing, Attorney Nell informed
the PCRA court that Appellant “sent a [m]otion to the undersigned indicating
multiple issues of ineffectiveness by his PCRA counsel,” which was attached
as an exhibit. Within that attached exhibit, Appellant wrote: “Unbeknownst
to Petitioner, [Attorney] Nell came to the erroneous conclusion that [Attorney]
Rice’s conduct should not be challenged, and stipulated with the prosecution
that resolution of the PCRA was a ‘legal issue’ and eschewed developing a
record of [A]ttorney Rice’s challenged conduct.” Exhibit to Motion to
Withdraw, 1/31/22, at 4 ¶ 3.
Attorney Entwistle’s Turner/Finley brief asserts that “Appellant agreed no
evidentiary hearing was necessary and the PCRA claim could proceed on the
(Footnote Continued Next Page)
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Appellant has merely contested the facts as set forth by Attorney Nell, and we
do not suggest that Attorney Nell’s representations regarding Appellant’s
decision to focus on the legal issue are not credible. Moreover, the PCRA court
would have been present for the video conference. To the extent that the
PCRA court implicitly discredited Appellant’s assertions, we find it impossible
to separate Attorney Nell’s later “no merit” letter from any concession to
forego an evidentiary hearing. A concession that no evidentiary hearing was
needed represents a conclusion that an amended petition was forthcoming.
Attorney Nell was, of course, entitled to decide upon further research and
review that Appellant’s PCRA petition lacked merit. But, as we have explained,
the proper course at that juncture was to file a “no merit” letter consistent
with the procedure stated in Kelsey, supra.
Finally, Kelsey establishes our mandate:
Because [the a]ppellant did not waive his right to representation
by counsel and PCRA counsel neither represented [the a]ppellant
on the merits of the PCRA petition nor filed a sufficient no-merit
letter that addressed all of [the a]ppellant’s claims, the PCRA
court’s dismissal of [the a]ppellant’s PCRA petition must be
vacated[,] and remand to the PCRA court for appointment of new
PCRA counsel is required. On remand, [the a]ppellant’s new
counsel shall be permitted to file an amended PCRA petition or, if
counsel concludes in the exercise of his or her professional
judgment that the issues raised in the PCRA proceeding are
without merit, counsel may file an adequate no-merit letter that
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submission of legal memorandum only,” and concludes that any claim
regarding the failure to hold an evidentiary hearing was waived.
Turner/Finley Brief at 13. This waiver conclusion flows from the mistaken
belief that Appellant failed to preserve any issue relating to Attorney Nell’s
ineffectiveness.
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addresses all of the issues raised in [the a]ppellant’s PCRA petition
and move to withdraw.
Kelsey, 206 A.3d at 1140 (internal citations omitted).
Order vacated. Petition to withdraw granted.6 Case remanded with
instructions to appoint new PCRA counsel. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2023
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6We grant the petition to withdraw in light of our determination that new
PCRA counsel must be appointed on remand.
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