Com. v. Burrus, D. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DANIEL BURRUS :
:
Appellant : No. 110 EDA 2020
Appeal from the PCRA Order Entered November 14, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008742-2009
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY McCAFFERY, J.: FILED: JUNE 4, 2021
Daniel Burrus (Appellant) appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas dismissing his first petition filed
pursuant to the Post Conviction Relief Act (PCRA).1 This appeal returns
following a remand by a prior panel based upon prior counsel’s failure to
properly comply with the requirements for withdrawal set forth in
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). See Commonwealth
v. Burrus, 1429 EDA 2017 (unpub. judgment order at 3) (Pa. Super. Oct. 2,
2018). On remand, new counsel, Michael McDermott, Esquire, was appointed,
but later was granted permission to withdraw pursuant to Turner/Finley. On
appeal, Appellant argues that the PCRA court, once again, erred when it
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1 42 Pa.C.S. §§ 9541-9546.
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permitted Attorney McDermott to withdraw absent proper compliance with
Turner/Finley. We agree, and thus, vacate the order denying PCRA relief
and remand for further proceedings.
We need not set forth a detailed recitation of the facts underlying
Appellant’s conviction. In summary, on the evening of March 30, 2009,
Appellant and a friend shot another friend, Richard Jackson, several times;
Jackson survived. See Commonwealth v. Burrus, 631 EDA 2013 (unpub.
memo. at 2-3) (Pa. Super. Dec. 11, 2014). On July 13, 2012, a jury convicted
Appellant of, inter alia, attempted murder, criminal conspiracy, possessing an
instrument of crime, aggravated assault, and possession of a firearm without
a license.2 On January 23, 2013, the trial court imposed an aggregate
sentence of 20 to 40 years’ imprisonment. A panel of this Court affirmed the
judgment of sentence on direct appeal. See id. at 9.
On December 8, 2015, Appellant filed a timely, first PCRA petition, pro
se. Counsel was appointed, but subsequently filed a petition to withdraw and
Turner/Finley “no merit” letter. Following the issuance of Pa.R.Crim.P. 907
notice, the PCRA court dismissed Appellant’s petition and permitted counsel
to withdraw. On appeal, a panel of this Court vacated the order dismissing
Appellant’s petition and remanded the case to the PCRA court, concluding:
There is no evidence that PCRA counsel sent Appellant a copy of
the petition to withdraw as counsel, sent him the no-merit letter,
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2 18 Pa.C.S. §§ 901(a), 903(a)(1), 907, 2702, 6106(a)(1), respectively.
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and/or advised him of his right to proceed pro se or with new
counsel.
Burrus, 1429 EDA 2017 (unpub. judgment order at 3). We directed that the
PCRA court either appoint new counsel or vacate its order granting prior
counsel’s petition to withdraw, and direct counsel to file an amended PCRA
petition or comply with Turner/Finley. Id.
Upon remand, the PCRA court appointed Attorney McDermott on March
19, 2019. Both before and after counsel’s appointment, Appellant filed several
pro se motions, seeking permission to amend his PCRA petition.3 On
September 26, 2019, Attorney McDermott filed a Turner/Finley “no merit”
letter. Neither a petition to withdraw, nor a letter informing Appellant of his
rights, was attached to the “no merit” letter.4 The only issue addressed in the
“no merit” letter is the issue Appellant raised in his original December 2015
petition — that direct appeal counsel was ineffective for failing to challenge
the trial court’s ruling permitting the victim’s preliminary hearing testimony to
be read at trial. See “No Merit” Letter at 2.
On October 24, 2019, the PCRA court again issued Rule 907 notice of
its intent of dismiss Appellant’s petition. Appellant filed a pro se response on
November 4th, noting he was not served with counsel’s petition to withdraw,
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3 Appellant requested to amend his original PCRA petition in January 2017,
February 2019, August 2019, September 2019, and October 2019.
4 We note that Attorney McDermott averred in the “no merit” letter that he
sent the letter to Appellant, “along with a separate letter informing [Appellant]
of his rights.” Attorney McDermott’s “No Merit” Letter, 9/25/19, at 4
(unpaginated). No such documents appear in the certified record.
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or a statement of his rights, and the PCRA court “ignore[ed]” his pro se
motions seeking to amend his “defective” petition. See Appellant’s Objection
to Dismiss Notice, 11/4/19, at 1-3. Nevertheless, on November 14, 2019, the
PCRA court entered an order dismissing Appellant’s petition pursuant to
counsel’s “no merit” letter, and granting counsel’s petition to withdraw, which
was filed in the PCRA court that same day. Order, 11/14/19; Attorney
McDermott’s Petition for Leave to Withdraw as Counsel, 11/14/19. This timely
pro se appeal follows.5
Appellant sets forth the following claims in his brief:
1. [PCRA] Court and its appointed members have failed in
distributing meaningful participation unto [Appellant] for the
second time.
2. [PCRA] Court erred in denying pro se [Appellant’s] filings,
seeking to amend his initially filed PCRA, which in the first
instance was deemed meritless.
3. PCRA court misrepresented filings by pro se [Appellant], due
to nominal (record-only) counsel.
4. PCRA court failed to properly notify [Appellant] of court
appointed counsel, to wit, constructive denial of PCRA
assistance.
5. Denial of Pa.R.Cr.P. 905, right to achieve substantial justice via
application to amend “defective” PCRA petition.
6. Ineffective Assistance of Counsel Failure to initially notify
[Appellant] in violation of Pa.R.Cr.P. 122/Pa.R.Cr.P. 904 of his
appointment/representation, failure to notify [Appellant]/serve
[Appellant] with any service/contemporaneous service
informing [Appellant] of his right to counsel, etc.
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5 Appellant complied with the PCRA court’s directive to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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Appellant’s Brief at 13.
Our review of an order denying PCRA relief is well-established: “[W]e
must determine whether the PCRA court’s order ‘is supported by the record
and free of legal error.’” Commonwealth v. Johnson, 139 A.3d 1257, 1272
(Pa. 2016) (citations omitted).
The claims Appellant raises on appeal concern Attorney McDermott’s
representation, or lack thereof, the PCRA court’s decision allowing Attorney
McDermott to withdraw from representation, and the court’s failure to address
Appellant’s pro se motions seeking to amend his original petition. An indigent
PCRA petitioner has a “rule-based right” to the assistance of counsel to litigate
their first PCRA petition. Pa.R.Crim.P. 904(C) (“[W]hen 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.”); Commonwealth v. Holmes, 79 A.3d 562, 632 (Pa. 2013).
Furthermore, the appointment is “effective throughout the post-conviction
collateral proceedings, including any appeal from disposition of the petition for
post-conviction collateral relief.” Pa.R.Crim.P. 904(F)(2).
The Pennsylvania Supreme Court has recognized that Rule 904’s right
to counsel includes “‘an enforceable right’ to the effective assistance of
counsel[.]” Holmes, 79 A.3d at 632 (emphasis added). Indeed, a petitioner
may assert the ineffective assistance of PCRA counsel on appeal, so long as
they preserved the claim in the PCRA court in response to the court’s Rule 907
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notice, and before the entry of a final PCRA order. See Commonwealth v.
Betts, 240 A.3d 616, 622 (Pa. Super. 2020).
In the present case, Appellant filed a timely response to the PCRA court’s
Rule 907 notice in which he challenged Attorney McDermott’s Turner/Finley
“no merit” letter, as well as the PCRA court’s failure to address his pro se
motions to amend the petition. See Appellant’s Objection to Dismiss Notice
at 2-3. Thus, we conclude he has preserved these claims on appeal.
Here, Appellant asserts Attorney McDermott was ineffective for, inter
alia, failing to notify Appellant of his representation, failing to provide
Appellant “with a meaningful opportunity to obtain review[,]” and failing to
inform Appellant “pertaining to his right to move forward with private counsel
or on his own.” Appellant’s Brief at 38. Moreover, Appellant claims he has
requested to amend his original petition since January of 2017, but the PCRA
court has refused to grant him permission to do so. See id. at 32.
In Commonwealth v. Muzzy, 141 A.3d 509 (Pa. Super. 2016), this
Court explained:
[W]hen PCRA counsel seeks to withdraw from representation,
they must proceed . . . under [Turner/Finley] and . . . must
review the case zealously. Turner/Finley counsel must then
submit a “no-merit” letter to the trial court, or brief on appeal to
this Court, detailing the nature and extent of counsel’s diligent
review of the case, listing the issues which petitioner wants
to have reviewed, explaining why and how those issues lack
merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
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Id. at 510–11 (citations omitted and emphases added).
In its opinion, the PCRA court acknowledges that Attorney McDermott
“did not inform [Appellant] of his right to proceed pro se or retain new
counsel.” PCRA Ct. Op., 7/8/20, at 12 (emphasis added). However, the court
observed: “[I]t is abundantly clear that [Appellant] was intimately familiar
with his right to proceed pro se or retain new counsel, as he has consistently
complained that neither [present nor former] counsel had advised him of this
right.” Id. Indeed, the PCRA court opined: “Although the procedural posture
of this matter is less than ideal, having already requested that this matter be
remanded once before, the Court is reluctant to do so again [and] finds that
[Appellant] was well aware [of] his rights to proceed pro se or hire counsel.”6
Id. at 13.
While the PCRA court’s position has a logical appeal, we conclude that
counsel’s compliance with the requirements of Turner/Finley does not
depend on whether a petitioner is aware of their rights. Furthermore, where,
as here, a panel of this Court has already remanded the matter once based
on prior counsel’s failure to comply with Turner/Finley, we decline to afford
newly appointed counsel a pass merely because, as the PCRA court found,
Appellant was aware of his rights. As noted supra, Appellant’s rule-based
right to counsel for his first PCRA petition includes “‘an enforceable right’ to
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6 We note that both the PCRA court and the Commonwealth conceded
Appellant was entitled to relief in his last appeal. See Burrus, 1429 EDA
2017 (unpub. memo. at 2).
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the effective assistance of counsel[.]” Holmes, 79 A.3d at 632. Thus, we
agree with Appellant that Attorney McDermott failed to comply with the
requirements of Turner/Finley, and as such, Appellant is entitled to relief.
With regard to Appellant’s pro se requests to amend his petition, the
PCRA court stated that because Appellant was represented by counsel, his pro
se filings were “a nullity.” PCRA Ct. Op. at 9 (citation omitted). Moreover,
the court noted that “nowhere in [Appellant’s] filings does he suggest the
existence of any alternative theories in support of his claim of ineffective
assistance of counsel.” Id. Rather, the court characterized Appellant’s filings
as “merely [seeking] an extension of time within which to discover additional
issues.” Id. at 8. The PCRA court also observed that, in his “no merit” letter,
Attorney McDermott stated he “thoroughly reviewed all of the claims of
[Appellant], as well as reviewed the case in its entirety[.]” Id. at 8.
We conclude the PCRA court’s analysis misses the mark. While
Appellant could have articulated the additional issues he wanted to raise in his
pro se filings, he was following the letter of Rule 905, which permits an
amended filing only upon court approval. See Commonwealth v.
Baumhammers, 92 A.3d 708, 730 (Pa. 2014) (“[A] petitioner may not
‘simply amend’ a pending petition with a supplemental pleading[; r]ather, Rule
905 ‘explicitly states that amendment is permitted only by direction or leave
of the PCRA Court.’”) (citations omitted). The fact that he sought court
approval before providing additional claims for relief is not a reason to deny
relief. In any event, the PCRA court also found Appellant’s pro se filings were
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“a nullity” because he was represented by counsel at the time he filed them.
See PCRA Ct. Op. at 9. Thus, on one hand, the court found Appellant’s request
to amend lacking specificity, and on the other, found Appellant was not
entitled to file a pro se petition to amend while represented by counsel.
In any event, our review of Attorney McDermott’s “no merit” letter and
petition to withdraw supports Appellant’s claim that counsel failed to provide
him with “a meaningful opportunity to obtain review.” See Appellant’s Brief
at 38. Despite the fact that Appellant submitted several pro se filings seeking
to amend his original petition, there is no indication in the record that Attorney
McDermott ever contacted Appellant before submitting his petition to
withdraw and “no merit” letter. Indeed, in his “no merit” letter, Attorney
McDermott avers that “after a thorough review of the file, I have come to the
conclusion that the petition has no merit.” Attorney McDermott’s “No Merit”
Letter at 1 (emphasis added). See also id. at 4 (explaining “[c]ounsel
reviewed the pro se petition, the Superior Court Opinion, [and] transcript[s]”).
Nevertheless, the only issue he identifies in the “no merit” letter is the
ineffectiveness claim Appellant raised in his original pro se petition. See id.
at 5. Attorney McDermott does not state he ever consulted, or attempted to
consult, with Appellant regarding possible additional claims. The same is true
for his petition to withdraw. Attorney McDermott avers that he “carefully
examined the facts and matter contained in the record . . . and has concluded
that the petition does present a frivolous legal question.” Attorney
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McDermott’s Petition for Leave to Withdraw as Counsel, 11/14/19, at 3
(unpaginated).
A petitioner’s “enforceable” rule-based right to counsel for a first PCRA
petition necessarily presumes counsel will consult with the petitioner. While
we do not question Attorney McDermott’s averment that he undertook a
careful review of Appellant’s record, he does not aver that he ever contacted
Appellant to discuss any additional claims Appellant wished to raise in his
petition.
Thus, we are constrained, once again, to vacate the order dismissing
Appellant’s PCRA petition. We further remand the case to the PCRA court,
which may either appoint new counsel for Appellant or vacate its order
granting Attorney McDermott’s petition to withdraw and order him to file either
an amended PCRA petition or fully comply with the requirements of
Turner/Finley.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/4/21
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