Com. v. Burgos, J. ( 2021 )

J-S06023-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFFREY BURGOS :
:
Appellant : No. 420 EDA 2020
Appeal from the PCRA Order Entered January 24, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008747-2015, CP-51-CR-0008748-2015
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED AUGUST 23, 2021
Appellant Jeffrey Burgos appeals pro se from the order dismissing his
first timely Post Conviction Relief Act1 (PCRA) petition without an evidentiary
hearing. This case returns to us after we remanded to the PCRA court for
clarification and supplementation of the record. Appellant contends that his
trial counsel was ineffective for failing to file a requested direct appeal. We
vacate and remand for an evidentiary hearing.
We state the facts as presented by the PCRA court:
On July 7, 2015, an altercation between [Victim, who was] the
mother of Appellant’s child, and several other women ensued
outside of [the home] where [Victim] resided. [Victim] drew a
revolver and fired two shots in the air to disperse the growing
crowd which included . . . Appellant. [Victim] then retreated into
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
J-S06023-21
her residence. Subsequently, Appellant produced a rifle and
forced his way through the door of the residence. Appellant fired
a shot inside of the house where [Victim], her girlfriend, two other
women, and her child were located.
PCRA Ct. Op., 12/18/20, at 2 (citations omitted).
As a result, the Commonwealth charged Appellant with various offenses
at two separate docket numbers: 8747-2015 and 8748-2015. At Docket No.
8747, the Commonwealth charged Appellant with, among other offenses,
burglary and recklessly endangering another person. At Docket No. 8748, the
Commonwealth also charged Appellant with, among other crimes, aggravated
assault.
On October 9, 2015, Marni Jo Snyder, Esq., entered her appearance as
counsel for Appellant at Docket No. 8747. See Docket No. 8747. Although
Attorney Snyder did not enter her appearance at Docket No. 8748, she
represented Appellant at his May 2, 2016 open guilty plea at both docket
numbers.
On April 28, 2017, the trial court sentenced Appellant, still represented
by Attorney Snyder, at both docket numbers. Specifically, at Docket No.
8747, the trial court sentenced Appellant to an aggregate sentence of ten-
and-one-half to twenty-five years’ imprisonment. Order, Docket No. 8747,
4/28/17. At Docket No. 8748, the trial court sentenced Appellant to an
aggregate sentence of sixteen-and-one-half to thirty-three years’
imprisonment. Order, Docket No. 8748, 4/28/17.
-2-
J-S06023-21
On May 5, 2017, Eric Donato, Esq., entered his appearance for Appellant
at both docket numbers, and he filed a motion for reconsideration of sentence
at each docket number.
Subsequently, on July 18, 2017, Liam Riley, Esq., entered his
appearance for Appellant at both docket numbers. The records do not reflect
that the trial court granted Attorneys Snyder or Donato permission to
withdraw.
At Docket No. 8747, the trial court denied the motion for reconsideration
on September 6, 2017. At Docket No. 8748, the trial court granted the motion
for reconsideration on September 6, 2017, and the trial court imposed a new
sentence of fourteen-and-one-half to thirty-five years’ imprisonment.2 No
notices of appeal were filed.
On August 28, 2018, Appellant filed a pro se PCRA petition, which listed
both docket numbers. Appellant raised a general claim that trial counsel failed
to file a requested appeal, but he did not otherwise specify a particular
____________________________________________
2 It appears that the trial court ruled on Appellant’s post-sentence motions
more than 120 days after Appellant filed them. Therefore, the trial court
lacked jurisdiction to impose the new sentence at Docket No. 8748, as both
of Appellants’ motions were denied by operation of law. See Pa.R.Crim.P.
720(B)(3)(a); Commonwealth v. Santone, 757 A.2d 963, 966 (Pa. Super.
2000) (holding that the trial court did not have jurisdiction to issue an order
resolving the defendant’s post-sentence motion after 120 days had passed).
None of the parties raised this issue. In any event, as set forth below,
Appellant filed a timely PCRA petition within one year after his judgment of
sentence became final.
-3-
J-S06023-21
attorney or docket number. PCRA Pet., 8/28/18, at 3 (stating that the
“[r]equested appeal was not filed”). Later in the petition, Appellant raised a
specific claim that Attorney Snyder failed to file “an appeal to the Superior
Court.” Id.On September 20, 2018, the PCRA court appointed Scott Gessner, Esq.,
as Appellant’s PCRA counsel at both docket numbers. On January 23, 2019,
at both docket numbers, Appellant filed a petition to proceed pro se. On April
15, 2019, the PCRA court held a Grazier3 hearing, at which the PCRA court
issued an oral order granting Appellant’s petitions to proceed pro se and
permitting Attorney Gessner to withdraw at both docket numbers.4 Attorney
Gessner did not file any amended PCRA petition or other pleadings for
Appellant at any docket number.
On November 18, 2019, at both docket numbers, the Commonwealth
filed a response to Appellant’s pro se PCRA petition. Resp. to Pro Se PCRA
Pet., 11/18/19. The Commonwealth reasoned that because Attorney Snyder
____________________________________________
3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).
4 On May 26, 2021, this Court remanded the matter for the PCRA court to
explain, among other things, why the PCRA court’s April 15, 2019 oral order
was not in the certified record. Order, 5/26/21. On June 23, 2021, the PCRA
court filed a supplemental opinion, which stated that the PCRA court was not
aware that its April 15, 2019 oral order was not docketed until the
Commonwealth filed a motion on October 22, 2019, asking the PCRA court to
correct the dockets. PCRA Ct. Op., 6/23/21, at 1. As a result of the
Commonwealth’s October 22, 2019 motion, the PCRA court stated that on
December 2, 2019, it filed orders at both docket numbers to reflect its April
15, 2019 oral order. Id. at 1-2.
-4-
J-S06023-21
was not Appellant’s counsel when the trial court resolved Appellant’s post-
sentence motions, Attorney Snyder could not have been ineffective by not
filing any appeals. Id. at 3.
On November 27, 2019, at both docket numbers, Appellant filed a pro
se reply, which stated that he inadvertently named Attorney Snyder. Pro se
Reply to Resp. to Pro se PCRA Pet., 11/27/19. Appellant argued that he raised
a viable claim of Attorney Riley’s ineffectiveness. Id. at 1-2. He also claimed
that “neither Attorney Donato nor Attorney Riley visited or notified [Appellant]
of their respective representation.”5 Id. Finally, Appellant requested leave to
amend his petition to specifically identify Attorney Riley as ineffective. Id. at
2. The PCRA court did not rule on Appellant’s request for leave to amend.
On December 16, 2019, at both docket numbers, the PCRA court issued
a Pa.R.Crim.P. 907 notice, which stated that the issues raised in Appellant’s
PCRA petition lacked merit.6 Rule 907 Notice, 12/16/19. Appellant did not
file a response to the Rule 907 notice.
On January 15, 2020, both dockets reflect that the PCRA court dismissed
Appellant’s PCRA petition, but the PCRA court did not, at that time, file any
____________________________________________
5 The PCRA court, as discussed below, relies on this statement to deny
Appellant relief.
6 The PCRA court’s Rule 907 notice was a checklist and provided no additional
rationale for the PCRA court’s reasoning.
-5-
J-S06023-21
orders.7 There is no indication in the record that on that date, the PCRA court
advised Appellant of his appellate rights, including that under
Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018), he must file a
separate notice of appeal from an order resolving issues arising on more than
one docket.
On January 24, 2020, at Docket No. 8747, Appellant filed a pro se notice
of appeal, which listed only Docket No. 8747. The certificate of service and
verified statement attached to Appellant’s pro se notice of appeal, however,
list both docket numbers.
On January 31, 2020, at both dockets, the PCRA court ordered Appellant
to comply with Pa.R.A.P. 1925(b). The docket and record for 8747 do not
reflect Appellant’s compliance within twenty-one days. The record at Docket
No. 8748, however, reflects that on February 28, 2020, Appellant filed a pro
se Rule 1925(b) statement, which listed Docket No. 8748.
On June 4, 2020, this Court ordered the PCRA court to either appoint
appellate counsel for Appellant or conduct a Grazier hearing. Order, 6/4/20.
On June 15, 2020, the PCRA court appointed Lawrence O’Connor, Esq., as
Appellant’s appellate counsel. Order, 6/15/20.
____________________________________________
7 On May 26, 2021, this Court ordered the PCRA court to supplement the
record with the January 15, 2020 orders. The PCRA court complied by printing
orders formally dismissing Appellant’s PCRA petition, which were printed on
June 10, 2021, but backdated to January 15, 2020.
-6-
J-S06023-21
On September 4, 2020, at Docket No. 8747, the PCRA court ordered
Attorney O’Connor to comply with Rule 1925(b). Order, 9/4/20. On
September 24, 2020, Attorney O’Connor filed a timely Rule 1925(b)
statement, which was captioned with the 8747 docket number, but was filed
at Docket No. 8748. Rule 1925(b) Statement, Docket No. 8748, 9/24/20.
Attorney O’Connor’s Rule 1925(b) statement asserted that Attorney Riley was
ineffective by not filing a direct appeal and that the PCRA court erred by
“denying [Appellant] his fundamental right to direct appeal” because Appellant
was mistaken about counsel’s identity. Id.Before we address the merits of Appellant’s issues, we must resolve our
appellate jurisdiction, which we may address sua sponte. Commonwealth
v. Borrero, 692 A.2d 158 (Pa. Super. 1997). In Commonwealth v. Walker,
185 A.3d 969 (Pa. 2018), our Supreme Court noted that under Pa.R.A.P. 341,
a single notice of appeal in a criminal case that seeks appellate review of
orders or judgments arising on more than one docket is not permitted.
Walker, 185 A.3d at 976.
However, in Commonwealth v. Stansbury, 219 A.3d 157 (Pa. Super.
2019), this Court recognized that the failure to file separate notices of appeal
may be excused where there was a breakdown in the operation of the court.
Stansbury, 219 A.3d at 160. Specifically, this Court noted that “[w]e have
many times declined to quash an appeal when the defect resulted from an
appellant’s acting in accordance with misinformation relayed to him by the
-7-
J-S06023-21
trial court.” Id. The Stansbury Court concluded that the PCRA court’s failure
to advise the appellant of the need to file separate notices of appeal
constituted “a breakdown in court operations such that we may overlook” any
Walker defect. Id. at 160. Therefore, the Court declined to quash
Stansbury’s appeal pursuant to Walker and addressed the substance of his
appeal. Id.; accord Commonwealth v. Larkin, 235 A.3d 350, 353-54 (Pa.
Super. 2020) (en banc).
Finally, Pa.R.Crim.P. 907(4) provides:
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 right
to appeal from the final order disposing of the petition and of the
time limits within which the appeal must be filed. The order shall
be filed and served as provided in Rule 114.
Pa.R.Crim.P. 907(4). Rule 114 requires, among other things, that all criminal
orders be promptly transmitted to the clerk of courts’ office for timestamping,
filing, docketing, and service. See Pa.R.Crim.P. 114.
Here, similar to Stansbury, in which the PCRA court gave incorrect
advice regarding the defendant’s right to appeal, the instant PCRA court failed
to advise Appellant of his appellate rights. See Pa.R.Crim.P. 907(4); cf.
Stansbury, 219 A.3d at 160. Specifically, the instant PCRA court failed to
issue an order advising Appellant “by certified mail, return receipt requested,
of the right to appeal from the final order disposing of the petition and of the
time limits within which the appeal must be filed.” Pa.R.Crim.P. 907(4). The
PCRA court also failed to inform Appellant that he must file separate notices
-8-
J-S06023-21
of appeal. See Pa.R.A.P. 341. Because of the breakdown in the PCRA court’s
operations, including the backdated orders as discussed above, we construe
Appellant’s pro se notice of appeal as an appeal from each of the PCRA court’s
January 15, 2020 orders denying Appellant’s pro se PCRA petitions at Docket
Nos. 8747 and 8748.8 See Stansbury, 219 A.3d at 160.
Having resolved our appellate jurisdiction, we state Appellant’s issues
as follows:
1. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented that trial
counsel was per se ineffective for failing to protect
[A]ppellant’s constitutional right to direct appeal.
2. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented to
establish a violation of [A]ppellant’s constitutional right to due
process and effective representation based on counsel’s
failure to file direct appeal.
3. Whether the PCRA court erred by failing to grant an
evidentiary hearing.
Appellant’s Brief at 7.
____________________________________________
8 Furthermore, Pa.R.A.P. 905(a)(5) provides that a “notice of appeal filed after
the announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof.”
Pa.R.A.P. 905(a)(5). Therefore, to the extent Appellant’s appeal was
premature, it was perfected on June 10, 2021, when the PCRA court filed the
backdated orders dismissing Appellant’s PCRA petition. See id.; cf. Johnston
the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 511, 514–15 (Pa. Super.
1995) (en banc).
-9-
J-S06023-21
We summarize Appellant’s arguments for all of his issues, as they are
interrelated. Appellant argues that he requested a direct appeal and that
counsel failed to file the requested direct appeal. Id. at 11. In Appellant’s
view, he established per se ineffectiveness and the PCRA court should have
reinstated his direct appeal rights nunc pro tunc. Appellant asserts that the
PCRA court erred by reasoning that because he failed to correctly identify his
counsel, that failure “proves that [A]ppellant did not actually request that
counsel file a direct appeal.” Id. at 12. Appellant claims that he is entitled to
an evidentiary hearing. Id. at 13.
The Commonwealth counters that because Appellant identified Attorney
Snyder, and not Attorney Riley, as the relevant trial counsel, Appellant is due
no relief. Commonwealth’s Brief at 7. The Commonwealth reasons that
Appellant was required to specifically plead that he requested Attorney Riley
to file an appeal. Id. at 9. The Commonwealth concludes that “in the absence
of any pleading alleging that [Appellant] did so, no hearing was warranted.”
Id. at 9-10.
The PCRA court similarly asserts that although Appellant has a
“constitutional right to direct appeal,” and “naming the wrong attorney is a
mistake of fact,” Appellant “ignore[d] the fact that he has insufficiently carried
his burden that he indeed requested any attorney to file an appeal on his
behalf.” PCRA Ct. Op. at 4. The PCRA court focuses on Appellant’s assertion
that neither Attorney Donato nor Attorney Riley ever visited or spoke with
- 10 -
J-S06023-21
Appellant. Id. The PCRA court therefore reasons that Appellant’s petition
“beg[ged] the questions – if [Appellant] was unaware of who his attorney was,
did he in fact request an appeal? If so, to whom was the request made?” Id.
Accordingly, the PCRA court concludes that Appellant never proved he
requested a direct appeal. Id.
In reviewing Appellant’s claims, we are guided by the following
principles:
[O]ur standard of review from the denial of a PCRA petition is
limited to examining whether the PCRA court’s determination is
supported by the evidence of record and whether it is free of legal
error. The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA court’s legal
conclusions.
Furthermore, to establish a claim of ineffective assistance of
counsel, a defendant must show, by a preponderance of the
evidence, ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place. . . .
We have explained that a claim has arguable merit where the
factual averments, if accurate, could establish cause for relief.
Whether the facts rise to the level of arguable merit is a legal
determination.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)
(citations omitted and formatting altered), appeal denied, 216 A.3d 1029 (Pa.
2019).
Further, it is well settled that
[t]here is no absolute right to an evidentiary hearing on a PCRA
petition, and if the PCRA court can determine from the record that
- 11 -
J-S06023-21
no genuine issues of material fact exist, then a hearing is not
necessary. To obtain reversal of a PCRA court’s decision to
dismiss a petition without a hearing, an appellant must show that
he raised a genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court otherwise
abused its discretion in denying a hearing.
Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (citations
and quotation marks omitted), appeal denied, 218 A.3d 380 (Pa. 2019).
When a defendant has requested a direct appeal and counsel failed to
file one, a presumption of prejudice arises regardless of the merits of the
underlying issues. Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa.
1999). Therefore, when a PCRA petitioner raises this type of claim, the PCRA
court must hold a hearing to determine whether the defendant “requested
that counsel so appeal. If it is determined that this request was made and
counsel failed to comply, [the defendant’s] rights must be reinstated.”
Commonwealth v. Daniels, 737 A.2d 303, 305 (Pa. Super. 1999).
In Daniels, the defendant filed a PCRA petition claiming “that counsel
was ineffective for failing to file a direct appeal.” Id. at 305. The PCRA court
dismissed the defendant’s petition without a hearing. Id. at 304. On appeal,
this Court reversed the PCRA court, reasoning that because of the defendant’s
claim, it was “constrained to reverse the [PCRA] court and remand for an
evidentiary hearing.” Id. at 305.
Finally, we add that “courts may liberally construe materials filed by a
pro se litigant, [but] pro se status confers no special benefit upon a litigant,
and a court cannot be expected to become a litigant’s counsel or find more in
- 12 -
J-S06023-21
a written pro se submission than is fairly conveyed in the pleading.”
Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014).
Instantly, we acknowledge the position of the Commonwealth and the
PCRA court that Appellant has the burden of pleading his claim. We also
acknowledge their position that because Appellant failed to identify Attorney
Riley as his counsel during the time period within which Appellant could have
filed a notice of appeal, this Court should affirm the denial of relief. See
Commonwealth’s Brief at 9-10. We note, however, that the dockets and
records do not reflect that the trial court ever granted Attorneys Snyder and
Donato permission to withdraw. Therefore, as Appellant claimed in his PCRA
petition, Appellant could have requested Attorney Snyder to file a notice of
appeal, as she was still counsel of record. See PCRA Pet. at 3.
Further, the PCRA court did not acknowledge Appellant’s assertion in his
PCRA petition that a “[r]equested appeal was not filed,” which we liberally
construe to mean by any of Appellant’s three trial counsel. See Blakeney,
108 A.3d at 766. Therefore, similar to the defendant in Daniels, Appellant
claimed that his counsel at that time was ineffective by failing to file a
requested direct appeal. See PCRA Pet. at 3; Daniels, 737 A.2d at 304.
Regardless, the PCRA court never ruled on Appellant’s request for leave to
amend his petition to specify Attorney Riley as ineffective. See Pro se Reply
to Resp. to Pro se PCRA Pet. at 2.
- 13 -
J-S06023-21
Therefore, the PCRA court erred by determining that no issues of fact
existed as to whether Appellant requested his then-counsel to file a notice of
appeal. See Daniels, 737 A.2d at 304-05. In conjunction with the
inconsistent pleadings, breakdowns in court operations, and record
discrepancies, which include the absence of any record documentation that
the trial court ever granted Attorneys Snyder or Donato permission to
withdraw, accordingly, we remand for an evidentiary hearing for the PCRA
court to determine these issues. See id.Additionally, the trial court must determine whether its granting of
Appellant’s motion for reconsideration at Docket No. 8748 was timely because
it appears from the record that its order was decided beyond 120 days and
that it therefore lacked jurisdiction to impose Appellant’s new sentence such
that the new sentence is illegal. See Pa.R.Crim.P. 720(B)(3)(a); Santone,
757 A.2d at 966. For these reasons, we vacate the order below and remand
the record for an evidentiary hearing.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2021
- 14 -