Com. v. Bent, J. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH FRANCESCO BENT :
:
Appellant : No. 1491 MDA 2022
Appeal from the PCRA Order Entered April 26, 2022
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0002499-2018
BEFORE: BOWES, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED: AUGUST 9, 2023
Joesph Francesco Bent appeals pro se from the order that dismissed his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”). Also before
us is the Commonwealth’s motion to quash. Upon review, we deny the
Commonwealth’s motion, vacate the order dismissing Appellant’s PCRA
petition, and remand for further proceedings.
Given our disposition, a detailed recitation of the facts underlying
Appellant’s convictions is unnecessary. Suffice it to say that Appellant is
serving an aggregate sentence of fourteen and one-half to twenty-nine years
of imprisonment imposed after he was convicted of rape and other crimes at
a jury at a trial in which Appellant represented himself. On direct appeal, we
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* Retired Senior Judge assigned to the Superior Court.
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vacated a component of his sentence that did not disturb the overall
sentencing scheme, but otherwise affirmed his convictions and sentence. See
Commonwealth v. Bent, 258 A.3d 543 (Pa.Super. 2021) (non-precedential
decision). Appellant filed a petition for allowance of appeal to our Supreme
Court, however he filed a praecipe to discontinue before the Court ruled upon
it.
Appellant filed a timely pro se PCRA petition on September 9, 2021.1
Therein, he asserted that his waiver of trial counsel had not been knowing and
voluntary due to an inadequate colloquy, that his sentencing counsel had been
ineffective in failing to correct an error as to his prior record score, and that
the Commonwealth withheld evidence in violation of Brady v. Maryland, 373
U.S. 83 (1963). The Honorable Craig T. Trebilcock, who presided at
Appellant’s trial and sentencing, appointed counsel and directed counsel to
discuss the petition with Appellant and file an amended petition or motion to
withdraw. See Order, 10/25/21.
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1 The petition was docketed on September 14, but it was postmarked on
September 9. Accordingly, the deemed filing date is September 9, 2021. See
Pa.R.A.P. 121(f) (“A pro se filing submitted by a person incarcerated in a
correctional facility is deemed filed as of the date of the prison postmark or
the date the filing was delivered to the prison authorities for purposes of
mailing as documented by a properly executed prisoner cash slip or other
reasonably verifiable evidence.”). We shall use the postmark date as the filing
date of Appellant’s pro se submissions hereafter. As for the filing of the PCRA
court’s orders, we utilize as the filing date the date on which the clerk of courts
served the document upon the parties. See Pa.R.A.P. 108(a)(1).
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Appellant appeared remotely at a hearing on December 17, 2021. PCRA
counsel explained that after a thorough investigation and consultation with
Appellant, he concluded that the sentencing issue concerning the error in
Appellant’s prior record score was meritorious, but the other two lacked
merit.2 See N.T. PCRA Hearing, 12/17/21, at 2-3. PCRA counsel indicated
that, normally, he would file an amended petition stating only the meritorious
claim, but Appellant insisted on amending to add more issues and not to
discard any. Id. at 4. He continued:
So without having permission from [Appellant] to amend
that and discard the two meritless claims, I’m in an ethical bind
where I cannot issue a letter because there is a legitimate issue,
but I also do not have permission to amend the petition to reduce
it to the one remaining claim with merit. I’m not sure how to
proceed, Your Honor.
Id.
The PCRA court then asked Appellant whether he wanted to argue the
claims counsel deemed meritless, and Appellant indicated that he wished to
do so that day. Id. at 5. The PCRA court directed Appellant to proceed to do
so, pro se, without permitting counsel to withdraw or conducting a colloquy
pursuant to Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (“When
a waiver of the right to counsel is sought at the post-conviction and appellate
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2 PCRA counsel indicated that sentencing counsel had acknowledged the error,
and that the Commonwealth stipulated that Appellant’s prior record score was
zero, not one, at the time he was sentenced. See N.T. PCRA Hearing,
12/17/21, at 3.
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stages, an on-the-record determination should be made that the waiver is a
knowing, intelligent, and voluntary one.”). Appellant then objected because
he was not able to present his claims in person. The court accordingly
indicated that it would reschedule the hearing to a time when Appellant could
be transported to court. See N.T. PCRA Hearing, 12/17/21, at 5-6.
The following week, Appellant submitted a pro se request to amend his
PCRA petition. See Motion to Amend, 12/22/21. Judge Trebilcock did not
rule on the motion before his term expired at the end of 2021, but did enter
a transportation order and schedule a PCRA hearing for March 18, 2022, to
take place before the Honorable Kathleen J. Pendergast, who presided over
the subsequent PCRA proceedings. On January 25, 2022, Appellant submitted
a pro se amended PCRA “brief” reasserting the claims that he did not validly
waive his right to counsel at trial, that counsel was ineffective in not objecting
to the use of an incorrect prior record score at sentencing, and that the
Commonwealth violated Brady. See Amended Brief for Appellant’s PCRA,
1/25/22, at 3-14. Appellant also added new claims contending that his
confrontation rights had been violated at trial and that Judge Trebilcock was
guilty of misconduct at sentencing. Id. at 1-2, 14-15.
On March 15, 2022, the Commonwealth filed a motion to dismiss, citing
the deficiencies in Appellant’s pro se petition, noting that it is “incumbent upon
appointed counsel to rectify [Appellant’s] PCRA petition in amended form” to
raise the issue counsel deemed meritorious, and stressing that Appellant was
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not permitted to proceed with hybrid representation. See Motion to Dismiss,
3/15/22, at ¶¶ 9-11, 15, 20.
The certified record does not contain a transcript for a hearing on
March 18, 2022. Instead, there is an order dictated in the presence of
Appellant’s PCRA counsel and the Commonwealth. Therein, the PCRA court
found that Appellant’s PCRA petition was defective for the various reasons
cited by the Commonwealth and granted the Commonwealth’s motion to
dismiss. See Order, 3/18/22, at 2. The court stated that Appellant “asked
that counsel be excused,” and that Appellant “has been advised not only
extensively by Judge Trebilcock during a separate hearing but also today that
he’s bound by all Rules of Criminal Procedure and all Rules of Court, all
deadlines, etc., as it relates to a choice to represent himself.”3 Id.
The PCRA court instructed Appellant to file an amended petition
pertaining to the sentencing issue that PCRA counsel had previously deemed
meritorious, indicating that it would dismiss that petition without a hearing if
it was not timely filed or did not correct the defects. Id. at 2-3. The court
further set timelines for PCRA counsel to provide Appellant with any necessary
documents and indicated that counsel’s representation would terminate as of
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3 The order does not reference in what hearing Judge Trebilcock had
colloquied Appellant as to his waiver of the right to PCRA counsel, nor does it
include the colloquy that the PCRA court conducted on that date. Hence, it is
unclear from the certified record whether Appellant waived his right following
a full Grazier hearing.
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5:00 p.m. on March 21, 2022. The order did not set a deadline for the timely
filing of the amended PCRA petition or contain all information pertinent to a
Pa.R.Crim.P. 907 notice of intent to dismiss without a hearing.
On March 21, 2022, PCRA counsel filed a notice of his compliance with
the PCRA court’s March 18 order, attaching a photograph of the stack of
documents that he provided to Appellant as well as a letter addressed to
Appellant. See Notice of Compliance, 3/21/22, at Exhibits A and B. In this
“No Merit Letter Pursuant to Commonwealth v. Finley on the Meritless
Issues,” counsel explained why he believed Appellant’s claims regarding
Brady evidence and the deficiencies in his trial-counsel-waiver colloquy lacked
merit, but indicated that the sentencing issue was meritorious and that he had
“reached an agreement with the District Attorney[’]s Office for a resentencing
based upon the error in your prior record score.”4 Id. at Exhibit A.
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4 We appreciate counsel’s dilemma as he elucidated it at the prior hearing
discussed above and his well-intentioned efforts to resolve it. However, for
the benefit of the criminal defense bar, we reiterate that PCRA counsel’s duty
is to either (1) amend a defective PCRA petition to raise claims he in is
professional judgment deems contain sufficient arguable merit, or (2) certify
that no meritorious issues exist. See, e.g., Commonwealth v. Finley, 550
A.2d 213, 215 (Pa.Super. 1988) (en banc); Commonwealth v. Karanicolas,
836 A.2d 940, 946 (Pa.Super. 2003). If disagreements with the client
preclude the attorney from choosing one course of action or the other, counsel
may withdraw on that basis to allow the client to argue any and all claims he
wishes pro se or with private counsel. We have rejected as improper partial
no-merit briefs such as the one at issue here in which counsel argues against
his client as to a faction of the claims raised. See Commonwealth v.
Plummer, 236 A.3d 1069, 2020 WL 1548510 at *6 (Pa.Super. 2020) (non-
(Footnote Continued Next Page)
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The next item on the docket is Appellant’s amended PCRA petition,
docketed on March 25, 2022, as “Pro Se Correspondence.” Therein, Appellant
raised his sentencing claim, among others. See Amended PCRA Petition,
3/22/22, at 1-9. On April 20, 2022, the Commonwealth filed a renewed
motion to dismiss, indicating that the PCRA court had given Appellant until
April 18, 2022, to file an amended petition but that he had “failed to file an
amended petition correcting the deficiencies in his original petition.”5
Renewed Motion to Dismiss, 4/20/22, at ¶¶ 12-13.
By order of April 26, 2022, the PCRA court granted the Commonwealth’s
motion, indicating that Appellant “was ordered to file his amended PCRA
[p]etition by April 18, 2022,” but “failed to do so by that deadline.” Order,
4/26/22. The order did not advise Appellant of his right to appeal or the time
limits for doing so, and was not served upon him by certified mail, return
receipt requested. Cf. Pa.R.Crim.P. 907(4) (“When the petition is dismissed
without a hearing, the judge promptly shall issue an order to that effect and
shall advise the defendant by certified mail, return receipt requested, of the
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precedential decision) (citing Commonwealth v. Morrison, 173 A.3d 286,
293 (Pa. Super. 2017)).
5 In its renewed motion, the Commonwealth elected not to mention its
stipulation that Appellant was sentenced using an incorrect prior record score
or its agreement that Appellant was entitled to sentencing relief purportedly
reached with A PCRA counsel prior to his withdrawal.
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right to appeal from the final order disposing of the petition and of the time
limits within which the appeal must be filed.”).
On May 6, 2022, Appellant filed a motion for reconsideration,
resubmitting his amended petition and pointing out that he had filed it on
March 22, 2022. The PCRA court entered an order dated May 13, 2022,
denying Appellant’s motion for reconsideration. The docket listed the order
as one denying the PCRA petition and reflected that it was served upon the
Commonwealth on May 16, 2022, but did not note service upon Appellant. On
June 22, 2022, Appellant filed a request for information on the status of his
reconsideration motion. Obtaining no response, Appellant filed a notice of
appeal in this Court, which was marked as received by this Court on
September 1, 2022. This Court apparently forwarded it to the PCRA court in
accordance with Pa.R.A.P. 905(a)(4),6 but the clerk of courts docketed it as a
motion for reconsideration in the PCRA court filed on September 6, 2022. An
additional notice of appeal was filed on October 11, 2022, initiating the instant
appeal.
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6 “If a notice of appeal is mistakenly filed in an appellate court, or is otherwise
filed in an incorrect office within the unified judicial system, the clerk shall
immediately stamp it with the date of receipt and transmit it to the clerk of
the court which entered the order appealed from, and upon payment of an
additional filing fee the notice of appeal shall be deemed filed in the trial court
on the date originally filed.” Pa.R.A.P. 905(4).
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The PCRA court filed a Pa.R.A.P. 1925(a) opinion on November 30,
2022.7 In its opinion, the PCRA court offered as the basis of its dismissal the
thirty-day deadline for the filing of the amended petition that does not appear
in the March 18, 2022 order and its misapprehension that Appellant did not
file his amended petition before he refiled it on May 6, 2022. See PCRA Court
Opinion, 11/30/22, at 1-2. The court further acknowledged its failure to
inform Appellant of his appeal rights when it dismissed his petition, but opined
that the error was harmless because Appellant did timely appeal on October
17, 2022. Id. at 2-3.
This Court issued a rule to show cause why the appeal should not be
quashed as untimely given that it was filed in October and his PCRA petition
was dismissed in April. See Order, 12/15/22. Appellant responded to the
rule, noting the PCRA court’s failure to advise him of his appellate rights when
it dismissed the petition and the multiple defects in service of the PCRA court’s
orders. See Response to Rule to Show Cause, 12/22/22, at 1-2. This Court
discharged the rule and referred the issue to this merits panel for
consideration. See Order, 1/5/23.
In the meantime, Appellant filed his brief advocating the merits of his
appeal. It is largely a rambling dissertation about the disadvantages a criminal
defendant faces navigating the criminal justice system. See Appellant’s brief
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7 The PCRA court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal.
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at 1-3. However, Appellant eventually complains that he is entitled to relief
based upon the irregularities in docketing and service highlighted above, such
as the fact that he filed his amended petition in March, not May 2022, and he
filed a notice of appeal in September after he received no response to his
request for information. Id. at 5.
The Commonwealth responded with a motion to quash this appeal based
upon Appellant’s failure to conform his brief to the Rules of Appellate
Procedure. This Court deferred the quashal request to this panel. The
Commonwealth then submitted a letter to this Court advising us that it would
file no response in addition to its motion to quash.8
Before we consider the Commonwealth’s motion, we must address the
timeliness of this appeal, as it implicates our jurisdiction. See, e.g.,
Commonwealth v. Williams, 106 A.3d 583, 587 (Pa. 2014). Based upon
Pa.R.A.P. 905, noted supra, Appellant’s appeal was filed on September 1,
2022, despite the failure of the clerks of courts to properly docket it as a notice
of appeal and proceed accordingly. See id. The ruling Appellant wishes to
challenge is the dismissal of his PCRA petition on April 26, 2022. As such, the
appeal is facially untimely.
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8 Appellant moved to dismiss all charges against him with prejudice and to
release him from custody based upon the Commonwealth’s refusal to file a
brief. That motion was promptly denied by per curiam order.
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However, as detailed in our recitation of the procedural history of these
proceedings, the appealed-from order did not advise Appellant of his right to
appeal or the time limits for doing so and was not served upon him as required
by Pa.R.Crim.P. 907(4). A PCRA court’s failure to comply with Rule 907(4) is
patently a “breakdown in the PCRA court's operations.” Commonwealth v.
Burgos, 262 A.3d 553, 2021 WL 3721807 at *4 (Pa.Super. 2021) (non-
precedential decision) (citing Commonwealth v. Stansbury, 219 A.3d 157(Pa.Super. 2019) (collecting cases)). Such breakdowns excuse the untimely
filing of a notice of appeal. See, e.g., Commonwealth v. Patterson, 940
A.2d 493, 499 (Pa.Super. 2007) (holding that the trial courts failure to comply
with the requirements of Rule 720 regarding advising a defendant’s appellate
rights in an order denying a post-sentence motion constitutes a breakdown
that excuses the untimely filing of a notice of appeal). Consequently, we have
jurisdiction over this appeal.
Turning to the Commonwealth’s motion to quash, we agree with the
Commonwealth that Appellant’s brief bears little resemblance to a brief of
appellant as envisioned by Pa.R.A.P. 2111 and 2114-32. While Pa.R.A.P. 2101
provides that we may quash or dismiss an appeal if briefing defects are
“substantial,” if the defects do not impede our review, we are not required to
so sanction a party. See, e.g., Commonwealth v. Levy, 83 A.3d 457, 461
n.2 (Pa.Super. 2013). Here, as we have indicated above, we are able to
discern the PCRA court’s errors of which Appellant complains, and he has cited
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relevant authority and portions of the record. Therefore, we deny the
Commonwealth’s motion to quash.
Thus, we are prepared to address the propriety of the PCRA court’s
dismissal order, mindful of the following:
The standard of review of an order dismissing a PCRA
petition 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. Further, a PCRA court has
discretion to dismiss a PCRA petition without a hearing if the court
is satisfied that there are no genuine issues concerning any
material fact; that the defendant is not entitled to post-conviction
collateral relief; and that no legitimate purpose would be served
by further proceedings.
Commonwealth v. Cruz, 223 A.3d 274, 277 (Pa.Super. 2019) (cleaned up).
Our in-depth discussion of the PCRA proceedings in this case renders
Appellant’s entitlement to relief obvious. The PCRA court concluded the
proceedings because it found that Appellant did not timely file an amended
petition. The record belies that finding. Appellant indeed filed his pro se
amended petition no later than March 25, 2022, well within the unwritten
thirty-day deadline that the PCRA court apparently discussed at the March 18,
2022 hearing, but did not include it in the order that was filed of record. Since
the court’s ruling was founded on a factual finding unsupported by the certified
record, it cannot stand.
Therefore, we vacate the PCRA court’s order dismissing Appellant’s
PCRA petition. The trial court shall review Appellant’s amended petition,
including the sentencing claim that the Commonwealth previously agreed
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warrants further action, and dispose of the petition as it deems appropriate,
adhering to the mandates of Pa.R.Crim.P. 907 and 908.
Motion to quash denied. Order vacated. Case remanded for further
proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2023
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