Com. v. Shields, S. ( 2023 )

J-A12028-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SOLISHUM SUMER SHIELDS :
:
Appellant : No. 2320 EDA 2022
Appeal from the PCRA Order Entered August 1, 2022
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0004375-2019
BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 17, 2023
Appellant Solishum Sumer Shields appeals pro se from the order
denying his first petition filed pursuant to the Post Conviction Relief Act
(PCRA).1 On appeal, Appellant challenges the validity of his plea agreement
and the legality of his sentence. After careful review, we vacate the PCRA
court’s order and remand with instructions.
On March 9, 2021, Appellant entered a negotiated guilty plea to fleeing
and eluding a police officer and driving under the influence of a combination
of drugs and alcohol (DUI).2,3 Pursuant to the terms of the plea agreement,
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1 42 Pa.C.S. §§ 9541-9546.
2 75 Pa.C.S. §§ 3733(a); 3802(d)(3), respectively.
3 The fleeing conviction was classified as a third-degree felony, while the DUI
charge was classified as a first-degree misdemeanor. See 75 Pa.C.S. §§
3733(a.2)(2)(i); 3803(b)(4).
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the trial court sentenced Appellant to concurrent terms of one to five years’
incarceration for DUI and eleven and one-half months to twenty-three months’
incarceration for fleeing and eluding a police officer. Appellant did not file
post-sentence motions or a direct appeal. Appellant’s judgment of sentence
became final for PCRA purposes on April 8, 2021. See 42 Pa.C.S. §
9545(b)(3); Pa.R.A.P. 903(c)(3).
On November 21, 2021, Appellant filed a timely pro se PCRA petition.
The PCRA court subsequently appointed C. Curtis Norcini, Esq. (Attorney
Norcini), to represent Appellant.4 PCRA Ct. Order, 11/22/21, at 1. On April
22, 2022, the PCRA court issued a Pa.R.Crim.P. 907 notice of intent to dismiss
Appellant’s PCRA petition without a hearing. Appellant subsequently filed a
pro se response.
On May 24, 2022, the PCRA court issued an order directing Attorney
Norcini to file an amended PCRA petition within sixty days, and that he was
required to continue to provide representation until he was either given leave
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4 The record reflects that Attorney Norcini filed a praecipe to withdraw
Appellant’s pro se PCRA petition with the Chester County Clerk of Courts on
February 17, 2022. However, Attorney Norcini’s request should have been
directed to the PCRA court. See Pa.R.Crim.P. 905(a) (reflecting that in the
PCRA context, “[t]he judge may grant leave to amend or withdraw a petition
for post-conviction collateral relief at any time” (emphasis added)). In any
event, because the PCRA court did not issue an order granting Attorney Norcini
leave to withdraw Appellant’s pro se PCRA petition, Appellant’s pro se PCRA
petition has not been withdrawn.
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to withdraw his representation by subsequent order of court or if he filed a
no-merit letter pursuant to Turner/Finley.5
On June 1, 2022, Appellant filed a motion to proceed pro se. The PCRA
court held a hearing on Appellant’s motion on July 7, 2022, but did not conduct
a Grazier6 colloquy to determine whether Appellant’s waiver of PCRA counsel
was knowing, intelligent, and voluntary. Ultimately, the PCRA court issued an
order denying Appellant’s request to proceed pro se on August 1, 2022.7 That
same day, although Attorney Norcini had not filed a Turner/Finley letter or
an amended petition on Appellant’s behalf, the PCRA court issued an order
denying Appellant’s PCRA petition without a hearing.
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5 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
6 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
7 On August 11, 2022, Appellant filed a notice of appeal from the PCRA court’s
order denying his motion to proceed pro se, which this Court docketed at 2089
EDA 2022. On April 28, 2023, this Court dismissed Appellant’s appeal at
Docket No. 2089 EDA 2022 due to Appellant’s failure to file a brief.
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On August 29, 2022, Appellant filed a timely pro se notice of appeal.8
The PCRA court subsequently issued a Pa.R.A.P. 1925(a) opinion stating the
reasons for denying Appellant’s PCRA petition.9
On appeal, Appellant raises the following issues, which we have
reordered as follows:
1. Was PCRA counsel, C. Curtis Norcini, Esq., ineffective for failing
to file [Appellant’s] amended PCRA petition for relief (6/6/22)
in violation for the decisions in Commonwealth v. Librizzi,
810 A.2d 692 (Pa. Super. 2002)?
2. Whether [Appellant] is entitled to enforcement of specific
performance upon his plea agreement, pursuant to due
process, and promissory estoppel, where his guilty plea
agreement was duly affirmed, under oath and jeopardy, and
where [Appellant] was induced by the prosecutor, to the
agreement of a concurrent and county sentence, to be served
in the Chester County Prison, but the sentencing judge failed
to merge [Appellant’s] DUI conviction with the felony fleeing
while [the] DUI conviction, which produced an illegal sentence
of double jeopardy/double punishment for the same DUI in
violation of the 5th Amend. of [the] U.S. Const., Art. I § 10 of
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8 We note that the PCRA court appointed Thomas P. McCabe, Esq. to replace
Attorney Norcini as Appellant’s counsel on August 31, 2022. However, while
this appeal was pending, this Court issued an order directing the PCRA court
to provide written notice of the results from the Grazier hearing that was held
in response to Appellant’s request to proceed pro se in his appeal at Docket
No. 2089 EDA 2022. In response, the PCRA court issued an order finding that,
with respect to appellate counsel, Appellant’s waiver of counsel was
knowing, intelligent, and voluntary and concluded that Appellant was
permitted to proceed pro se on the instant appeal of the PCRA court’s
conclusions. We note that the Grazier hearing determinations were limited
to Appellant’s appeal of the PCRA court’s decisions to this Court and did not
address whether Appellant waived his rule-based right to counsel in the
underlying PCRA proceeding.
9 The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement.
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PA Const., and a due process violation of the plea agreement
under the 5th and 14th Amends. of [the] U.S. Const., and Art. I
§ 9 of [the] PA Const.?
3. Did the PCRA court err, as a matter of law, under 42 Pa.C.S. §
9542, and pursuant to the decisions in Commonwealth v.
Prinkey, 277 A.3d 554 (Pa. 2022); Commonwealth v.
Cosby, 252 A.3d 1092 (Pa. 2021); Commonwealth v. Zuber,
466 Pa. 453 (Pa. 1976); and Santobello v. New York, 404
U.S. 257 (1971), when it denied PCRA relief to correct this
illegal sentencing order?
4. Is [Appellant] entitled to specific enforcement of the valid
sentences of his plea agreement, and to the
inducement/stipulation of receiving a county sentence, offered
and agreed to by the prosecutor, where [Appellant] has already
served a significant portion of the sentences, and completely
fulfilled a significant portion of the terms?
5. Was [Appellant] punished twice for the same crime of DUI
when the sentencing judge failed to merge the DUI charge with
his felony fleeing while DUI charge, on his sentencing order, in
violation of the inducement/condition/assurance offered and
agreed to by the prosecutor, that [Appellant] would receive a
county sentence to be served in the county?
6. Did the PCRA court err by determining that [Appellant] waived
his illegal sentence claim where illegal sentence issues are non-
waivable?
7. Did the PCRA court violated [Appellant’s] 6th Amend. right of
[the] U.S. Const. and his Article I § 9 right of [the] PA Const.,
when it denied his request to represent himself?
8. Did the sentencing court lack authority and/or jurisdiction to
issue a sentence for [Appellant’s] DUI conviction where, by
doing so, it violated [Appellant’s] right not to be punished
twice, nor to be put in jeopardy twice for the same crime of
DUI?
9. Is [Appellant] entitled to the benefit of his plea agreement
where he relied on an assurance that he would receive a county
sentence to be served in the Chester County Prison, and said
agreement was completely valid, but for the sentencing court’s
failure to merge his DUI for sentencing, which failure violated
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his due process and double jeopardy rights to his substantial
detriment?
10. Did the PCRA court create a structural error within the
proceedings, pursuant to the 14th Amend. of [the] U.S. Const.
and Art. I § 9 of [the] PA Const., when it modified [Appellant’s]
Grazier hearing into a PCRA hearing and failed to conduct the
required colloquy to enable [Appellant] to proceed pro se,
lawfully/legally?
Appellant’s Brief at 3-4 (some formatting altered).
Our review of the denial of PCRA relief is limited to “whether the record
supports the PCRA court’s determination and whether the PCRA court’s
decision is free of legal error.” Commonwealth v. Lawson, 90 A.3d 1, 4
(Pa. Super. 2014) (citations omitted). “[W]e apply a de novo standard of
review to the PCRA court’s legal conclusions.” Commonwealth v. Mitchell,
105 A.3d 1257, 1265 (Pa. 2014) (citation omitted).
It is well-established that a petitioner has a rule-based right to counsel
in litigating a first PCRA petition which must be honored even when the claims
appear on their face to lack merit. Pa.R.Crim.P. 904(C); Commonwealth v.
Cherry, 155 A.3d 1080, 1082 (Pa. Super. 2017). Appointed counsel has a
duty to either amend the pro se petition and litigate the claims on the merits
or seek to withdraw by complying with the mandates of Turner/Finley. Id.
at 1083. “If appointed counsel fails to take either of these steps, our courts
have not hesitated to find that the petition was effectively uncounseled.” Id.(citation omitted); see also Commonwealth v. Kelsey, 206 A.3d 1135,
1139 (Pa. Super. 2019) (stating that because appointed counsel failed to file
an amended petition or comply with Turner/Finley, the PCRA court’s order
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denying the petition “must be vacated” and that “remand to the PCRA court
for appointment of new PCRA counsel is required” (citations omitted)).
Finally, this Court has noted that “a PCRA court’s independent review of
the record is no substitute for the right to counsel in litigating a first PCRA
petition.” Commonwealth v. LeClair, 137 WDA 2022, 2022 WL 10225177at *3 (Pa. Super. filed Oct. 18, 2022) (unpublished mem.) (citation omitted).10
Indeed, “[a] PCRA court cannot act as counsel to a petitioner, and competent
counsel advancing the petitioner’s interests may reframe or identify new
issues that were not articulated in legally adequate terms by a pro se litigant.”
Id.In the instant case, the record reflects that Appellant filed a timely pro
se PCRA petition on November 21, 2021, and then the PCRA court appointed
Attorney Norcini on Appellant’s behalf. See PCRA Ct. Order, 11/22/21. On
May 24, 2022, the PCRA court issued an order directing Attorney Norcini to
file an amended PCRA petition or comply with Turner/Finley within sixty
days. PCRA Ct. Order, 5/24/22. Although Attorney Norcini failed to file either
an amended petition or comply with Turner/Finley, the PCRA court ultimately
denied Appellant’s pro se PCRA petition without a hearing.
On this record, we conclude that Appellant was deprived of his rule-
based right to counsel on his first PCRA petition. See Kelsey, 206 A.3d 1139;
Cherry, 155 A.3d at 1082. Although the PCRA court addressed the merits of
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10We may cite to non-precedential cases filed after May 1, 2019, for their
persuasive value. Pa.R.A.P. 126(b).
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Appellant’s pro se claims in its Rule 1925(a) opinion, that is not a substitute
for Appellant’s right to counsel. See LeClair, 2022 WL 10225177 at *3.
Therefore, because Appellant did not waive his right to representation by PCRA
counsel in the underlying PCRA hearing and PCRA counsel failed to file an
amended petition or comply with Turner/Finley, the PCRA court’s order
dismissing Appellant’s PCRA petition must be vacated. Although the record
indicates that there was some discussion during the PCRA hearing about
Appellant representing himself, the PCRA court did not conduct a proper
Grazier colloquy, and denied Appellant’s motion to proceed pro se.
Accordingly, it is necessary to remand this matter for the PCRA court to
appoint new counsel on Appellant’s behalf. See Kelsey, 206 A.3d 1139;
Cherry, 155 A.3d at 1082.
On remand, Appellant’s new counsel shall be permitted to file an
amended PCRA petition or, if counsel concludes that Appellant’s PCRA claims
are meritless, counsel must file an adequate no-merit letter that addresses
each issue raised in Appellant’s PCRA petition and move to withdraw. See
Kelsey, 206 A.3d 1139; Cherry, 155 A.3d at 1083.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judge Olson concurs in the result.
Judge McLaughlin concurs in the result.
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Date: 10/17/2023
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