Com. v. Odem, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee :
:
v. :
:
DERON LEE ODEM :
:
Appellant : No. 60 WDA 2021
Appeal from the PCRA Order Entered October 9, 2020
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001140-2016
BEFORE: DUBOW, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED: September 13, 2021
Appellant, Deron Lee Odem, appeals from the order entered in the
Mercer County Court of Common Pleas, which denied Appellant’s first petition
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We vacate and
remand for further proceedings, and deny counsel’s petition to withdraw.
The relevant facts and procedural history of this case are as follows. On
September 13, 2017, Appellant entered an open plea of nolo contendere to
rape. On the date scheduled for sentencing, Appellant appeared before the
court and asked to withdraw his plea. Appellant claimed he was innocent and
alleged that plea counsel’s ineffectiveness caused him to enter an unknowing
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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and involuntary plea. Appellant filed a formal motion to withdraw his plea on
December 6, 2017. Following a hearing on December 14, 2017, the court
denied Appellant’s motion on December 19, 2017. On January 31, 2018, the
court sentenced Appellant to 114 to 240 months’ imprisonment.2
Appellant timely filed a direct appeal, claiming the trial court erred in
denying his motion to withdraw his plea.3 Nevertheless, this Court considered
the issue waived because Appellant filed his Rule 1925(b) concise statement
of errors complained of on appeal four days late. In a footnote, this Court
explained that even if Appellant had preserved his issue for appellate review,
it would not have merited any relief. Thus, this Court affirmed Appellant’s
judgment of sentence on September 21, 2018. See Commonwealth v.
Odem, 198 A.3d 481 (Pa.Super. 2018) (unpublished memorandum).
Appellant filed a pro se PCRA petition on January 29, 2020, alleging
appellate counsel was ineffective in waiving Appellant’s sole issue raised on
direct appeal. Appellant further claimed his petition was timely under the
“newly-discovered facts” exception to the PCRA time-bar. Appellant averred
that he received a letter from the Public Defender’s Office on November 7,
2019, in response to an inquiry from Appellant, stating that the Public
Defender withdrew as counsel following sentencing, and the court had
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2 The Public Defender’s Office represented Appellant during the plea and
sentencing proceedings.
3 The court appointed new counsel for the appeal, Attorney Jarrett Whalen.
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appointed Attorney Whalen for Appellant’s direct appeal. Appellant said he
then received a letter from Attorney Whalen on November 18, 2019, in
response to an inquiry from Appellant, stating that the Superior Court had
denied Appellant’s direct appeal. Appellant attached the letters from the
Public Defender’s Office and Attorney Whalen to his PCRA petition. Appellant
emphasized that Attorney Whalen’s letter states that he was appointed as
counsel on February 15, 2018, and that Attorney Whalen sent notice of the
appointment to Appellant at United States Penitentiary (“USP”) Big Sandy, a
federal prison in Kentucky. Appellant insisted he did not receive notice of
counsel’s appointment because he was located in USP Terra Haute, a federal
prison in Indiana. Appellant stated:
Although Petitioner attempted to use due diligence to obtain
information, the Federal Prisons lacked adequate PA law
services, [and] denied/ignored his requests. Petitioner
further discovered ‘why’ his appeal was denied. On March
2, 2018, [the] trial court ordered Appellate counsel to file a
concise statement of errors pursuant to Pa.R.A.P. 1925(b),
within 21 days.
Appellate counsel failed to file a timely [Rule] 1925(b)
causing an automatic waiver of Petitioner’s issues.
(Appellant’s PCRA Petition, filed 1/29/20, at ¶¶9-10) (internal citation
omitted). Appellant’s PCRA petition suggested that Appellant was unaware of
this Court’s decision on direct appeal until he received the November 2019
correspondence from Attorney Whalen.
The court appointed PCRA counsel on January 30, 2020, who
subsequently filed a petition to withdraw along with a “no-merit” letter
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pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988)
and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
In his no-merit letter, PCRA counsel said the current petition was untimely.4
Moreover, PCRA counsel stated Appellant’s ineffectiveness claim failed the
prejudice prong of the ineffectiveness test where this Court said Appellant’s
claim on direct appeal would not have merited any relief even if properly
preserved.
Appellant filed a pro se response on September 8, 2020, disagreeing
with PCRA counsel’s analysis. Appellant averred that appellate counsel
(Attorney Whalen) was per se ineffective for failing to file a timely Rule
1925(b) statement, which resulted in the waiver of Appellant’s sole issue on
direct appeal. Because appellate counsel was per se ineffective, Appellant
contended that he was not obligated to prove prejudice, so this Court’s
“moreover” analysis on direct appeal was of no moment.5 Appellant further
maintained PCRA counsel was ineffective in failing to consult with Appellant
about his PCRA claims. Appellant alleged PCRA counsel did not meet with
Appellant at any point and only reviewed this Court’s decision on direct appeal.
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4 Counsel did not address whether any PCRA timeliness exception applied.
5 In support of this claim, Appellant cited, inter alia, Commonwealth v.
Halley, 582 Pa. 164, 173, 870 A.2d 795, 801 (2005) (holding failure to file
timely Rule 1925(b) statement on behalf of criminal defendant which results
in waiver of all claims asserted on direct appeal “represents the sort of actual
or constructive denial of assistance of counsel falling within the narrow
category of circumstances in which prejudice is legally presumed”).
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Appellant also complained that PCRA counsel did not conduct any analysis of
Appellant’s asserted time-bar exception or make inquiries from Appellant to
discern whether Appellant could overcome the timeliness hurdle. Appellant
reiterated that he did not learn of appellate counsel’s waiver of Appellant’s
issue on direct appeal until November 2019, when he received correspondence
from Attorney Whalen. Appellant asked the court to appoint new counsel for
Appellant.
Along with his response to the no-merit letter, Appellant filed a pro se
motion for enlargement of time, seeking an extension to file an amended PCRA
petition. Appellant asked for a 30-day extension in which to file an amended
PCRA petition due to restrictions Appellant faced accessing the law library in
light of the COVID-19 pandemic.
On September 15, 2020, the court issued notice of its intent to dismiss
the petition without a hearing per Pa.R.Crim.P. 907 and granted PCRA
counsel’s petition to withdraw. The court also denied Appellant’s request for
new counsel and motion for enlargement of time. The court formally denied
PCRA relief on October 9, 2020.
On October 22, 2020, Appellant filed a motion to vacate the order
denying PCRA relief. Appellant claimed that he did not receive the Rule 907
notice. Appellant emphasized that the court also did not address any of the
claims raised in his response to counsel’s no-merit letter. Appellant further
reiterated his claims of PCRA counsel’s ineffectiveness in failing to
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communicate with Appellant. Appellant again sought the appointment of new
counsel.
On October 23, 2020, the court denied Appellant’s motion to vacate.
Appellant timely filed a pro se notice of appeal from the order denying PCRA
relief on Monday, November 9, 2020. The next day, the court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). The court also appointed new counsel for
appeal.6 Counsel subsequently filed a Rule 1925(b) statement.
Preliminarily, current appellate counsel has filed a petition to withdraw
and a Turner/Finley brief on appeal.7 Before counsel can be permitted to
withdraw from representing a petitioner under the PCRA, Pennsylvania law
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6 We note that an appellant is generally not entitled to court-appointed counsel
on appeal after PCRA counsel is permitted to withdraw. See Commonwealth
v. Rykard, 55 A.3d 1177 (Pa.Super. 2012), appeal denied, 619 Pa. 714, 64
A.3d 631 (2013) (explaining that when counsel has been appointed to
represent PCRA petitioner and that right has been fully vindicated following
grant of counsel’s petition to withdraw under Turner/Finley, court shall not
appoint new counsel and appellant must look to his own resources for future
proceedings). Nevertheless, the court can appoint counsel for appeal in the
interests of justice. See Pa.R.Crim.P. 904(E) (stating judge shall appoint
counsel to represent defendant whenever interests of justice require it).
7 Counsel incorrectly designated his brief as one per Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which applies to
attorneys seeking to withdraw representation on direct appeal. We can accept
counsel’s filing in this case as a Turner/Finley brief. See Commonwealth
v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004), appeal denied,
584 Pa. 691, 882 A.2d 477 (2005) (stating Superior Court can accept Anders
brief in lieu of Turner/Finley brief, where PCRA counsel seeks to withdraw on
appeal).
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requires counsel to file a “no-merit” brief or letter pursuant to Turner and
Finley. Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.Super. 2003).
[C]ounsel must…submit a “no-merit” letter to the [PCRA]
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 the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and
requesting permission to withdraw.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel
must also send to the petitioner a copy of the “no-merit” letter or brief and
motion to withdraw and advise petitioner of his right to proceed pro se or with
privately retained counsel. Id. “Substantial compliance with these
requirements will satisfy the criteria.” Karanicolas, supra at 947.
Instantly, current counsel filed a petition to withdraw as counsel and a
brief detailing the nature of counsel’s review and explaining why counsel
believes Appellant’s issues lack merit. Counsel also states that he reviewed
the certified record and found no meritorious issues for appeal. Counsel
notified Appellant of counsel’s request to withdraw and advised Appellant
regarding his rights. Thus, counsel substantially complied with the technical
Turner/Finley requirements. See Wrecks, supra; Karanicolas, supra.Counsel raises the following issues on Appellant’s behalf:8
Whether the [PCRA] court erred in dismissing, and therefore
denying, [Appellant’s] January 29, 2020 petition for [PCRA]
relief based upon [Appellant’s] claim that:
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8 Appellant has not responded pro se or with private counsel.
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(a) the sentencing court abused its discretion in
denying [Appellant’s] request to withdraw his [nolo
contendere] plea; and
(b) [Appellant’s] prior court-appointed attorney
was ineffective by failing to file a statement of errors
complained of on appeal in a timely manner resulting
in [Appellant’s] appeal being dismissed.
(Turner/Finley Brief at 7).
As a second preliminary matter, we must address Appellant’s pro se
allegations of PCRA counsel’s ineffectiveness. This Court has recently
explained:
“[W]here an indigent, first-time PCRA petitioner was denied
his right to counsel—or failed to properly waive that right—
this Court is required to raise this error sua sponte and
remand for the PCRA court to correct that mistake.”
Commonwealth v. Stossel, 17 A.3d 1286, 1290
(Pa.Super. 2011).
As this is Appellant’s first PCRA petition, he enjoys a well-
recognized right to legal representation during this initial
collateral review of his judgment of sentence. See
Commonwealth v. Albert, 561 A.2d 736, 738 (Pa. 1989)
(“[I]n this Commonwealth one who is indigent is entitled to
the appointment of counsel to assist with an initial collateral
attack after judgment of sentence”). In this context, “the
right to counsel conferred on initial PCRA review means ‘an
enforceable right’ to the effective assistance of counsel.”
See Commonwealth v. Holmes, 79 A.3d 562, 583 (Pa.
2013) (quoting Commonwealth v. Albrecht, 720 A.2d
693, 699-700 (Pa. 1998)).
While the existence of this right is well-established, the
procedure for its enforcement, i.e., raising allegations of
PCRA counsel’s ineffectiveness, remains ill-defined under
Pennsylvania law:
[T]here is no formal mechanism in the PCRA for a
second round of collateral attack focusing upon the
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performance of PCRA counsel, much less is there a
formal mechanism designed to specifically capture
claims of previous counsel’s ineffectiveness defaulted
by initial-review PCRA counsel. Frankly, this Court
has struggled with the question of how to enforce the
“enforceable” right to effective PCRA counsel within
the strictures of the PCRA[.] The question of whether
and how to vindicate the right to effective PCRA
counsel has been discussed at length in majority
opinions and in responsive opinions .... But, the
Justices have not been of one mind respecting how to
resolve the issue, and no definitive resolution has
emerged.
Holmes, supra at 583-84. Stated more succinctly, “since
petitioners are not authorized to pursue hybrid
representation and counsel cannot allege [their] own
ineffectiveness, claims of PCRA counsel ineffectiveness
cannot ordinarily be raised in state post-conviction
proceedings[.]” [Rykard, supra at 1188] (emphasis
added).
However, our Supreme Court also concomitantly requires
counseled PCRA petitioners to raise allegations of PCRA
counsel’s ineffectiveness in response to a Rule 907 notice of
intent to dismiss, or risk waiver. See Commonwealth v.
Pitts, 981 A.2d 875, 880 n.4 (Pa. 2009).
* * *
Subsequent interpretation of Pitts by both the Supreme
Court and this Court have reaffirmed this aspect of the
holding. See Commonwealth v. [A.] Robinson, 139 A.3d
178, 184 n.8 (Pa. 2016); Commonwealth v. Henkel, 90
A.3d 16, 25 (Pa.Super. 2014) (en banc) (“[T]he Pitts
majority mandated that a petitioner raise any allegations of
PCRA counsel ineffectiveness in response to the PCRA
court’s notice of dismissal”).
Commonwealth v. Betts, 240 A.3d 616, 621-22 (Pa.Super. 2020) (some
internal citations omitted).
Additionally, this Court has emphasized the importance of effective
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assistance of counsel regarding a petitioner’s first PCRA petition:
While the right to legal representation in the PCRA context
is not constitutionally derived, the importance of that right
cannot be diminished merely due to its rule-based
derivation. In the post-conviction setting, the defendant
normally is seeking redress for trial counsel’s errors and
omissions. Given the current time constraints of [the
PCRA], a defendant’s first PCRA petition, where the rule-
based right to counsel unconditionally attaches, may well be
the defendant’s sole opportunity to seek redress for such
errors and omissions. Without the input of an attorney,
important rights and defenses may be forever lost.
Commonwealth v. J. Robinson, 970 A.2d 455, 458-59 (Pa.Super. 2009)
(en banc). Importantly, “[a]n indigent petitioner is entitled to appointment of
counsel on his first PCRA petition, even where the petition appears untimely
on its face.” Commonwealth v. Perez, 799 A.2d 848, 851 (Pa.Super. 2002).
“In such cases, counsel is appointed principally to determine whether the
petition is indeed untimely, and if so, whether any exception to the timeliness
requirements [of the PCRA] applies.” Id. at 852.
In Betts, supra, the appellant had complied with Pitts by asserting
PCRA counsel’s ineffectiveness in response to the PCRA court’s issuance of
Rule 907 notice, and before entry of a final PCRA order. Betts, supra at 622.
Nevertheless, the PCRA court did not consider the allegations of PCRA
counsel’s ineffectiveness prior to dismissing his PCRA petition, so the
appellant’s “concerns were not reviewed or investigated by the PCRA court in
a meaningful way.” Id. at 623. Consequently, this Court held that the
appellant “never received the assistance of counsel in arguing the merits of
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these ineffectiveness claims to the PCRA court.” Id. This Court reasoned:
Appellant’s rule-based right to effective counsel extends
throughout the entirety of his first PCRA proceeding. See
Holmes, supra at 583; Henkel, supra at 22-23 (citing
Pa.R.Crim.P. 904(F)(2)). Necessarily, Appellant had a right
to effective counsel when he alleged [PCRA counsel’s]
ineffectiveness in response to the PCRA court’s Rule 907
notice. Id. However, as a matter of Pennsylvania law, he
could not rely upon [PCRA] counsel to assist him in this
specific context. See Commonwealth v. Spotz, 18 A.3d
244, 329 n.52 (Pa. 2011) (“[C]ounsel cannot argue his or
her own ineffectiveness”); see also, e.g., Commonwealth
v. Ellis, 626 A.2d 1137, 1138-39 (Pa. 1993) (“[U]nder no
other circumstances are counsel and client permitted to
present opposing arguments”).
In this specific context, Appellant’s timely allegations of
ineffectiveness created a “substantial” and “irreconcilable”
conflict in his relationship with [PCRA counsel]. See
Pa.R.Crim.P. 122(C) (“A motion for change of counsel by a
defendant for whom counsel has been appointed shall not
be granted except for substantial reasons”);
Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032,
1041 n.10 (2011) (“To satisfy this standard, a defendant
must demonstrate he has an irreconcilable difference with
counsel that precludes counsel from representing him”).
Our case law is replete with instances where allegations of
ineffectiveness have necessitated the appointment of
substitute counsel in the post-collateral context. See, e.g.,
Commonwealth v. Fox, 383 A.2d 199, 200 (Pa. 1978)
(“[W]e cannot assume that appellant’s [post-conviction]
counsel adequately advised appellant of his own
inadequacies ....”) (citing Commonwealth v. Sherard,
384 A.2d 234, 234 (Pa. 1977) (same)).
* * *
In sum, we believe that Appellant is entitled to remand for
the appointment of substitute PCRA counsel to prosecute
these abeyant claims of ineffectiveness. Our Supreme Court
has opined that remand and appointment of new PCRA
counsel is appropriate in such circumstances:
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An indigent petitioner has the right to appointment of
counsel to assist in prosecuting a first PCRA petition.
Where that right has been effectively denied by the
action of court or counsel, the petitioner is entitled to
remand to the PCRA court for appointment of counsel
to prosecute the PCRA petition. The remand serves
to give the petitioner the benefit of competent counsel
at each stage of post-conviction review.
Commonwealth v. Kenney, 732 A.2d 1161, 1164 (Pa.
1999); see also Commonwealth v. Cox, 204 A.3d 371,
390 (Pa. 2019) (affirming Kenney for the proposition that
“remand for appointment of counsel is appropriate remedy
when the right to appointment [of] counsel has been
effectively denied”).
Betts, supra at 623-24 (internal footnote omitted).
Instantly, the record confirms that Appellant is indigent and that the
current petition is his first PCRA petition. After receiving PCRA counsel’s no-
merit letter, Appellant filed a pro se response, alleging PCRA counsel’s
ineffectiveness. Appellant further reiterated his claims of PCRA counsel’s
ineffectiveness in his motion to vacate the order denying PCRA relief.
Significantly, the court did not address Appellant’s claims of PCRA
counsel’s ineffectiveness at any point. The court did not issue an opinion
accompanying its Rule 907 notice, order denying PCRA relief, or order denying
Appellant’s motion to vacate. The court’s Rule 1925(a) opinion also does not
discuss Appellant’s allegations of PCRA counsel’s ineffectiveness.
Notably, Appellant’s current petition is facially untimely, where his
judgment of sentence became final on October 21, 2018, and Appellant did
not file the current PCRA petition until over one year later, on January 29,
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2020. See 42 Pa.C.S.A. § 9545(b)(1), (3) (stating any petition filed under
this subchapter shall be filed within one year of date that judgment becomes
final unless petitioner can plead and prove one of enumerated timeliness
exceptions; judgment becomes final at conclusion of direct review, including
discretionary review in Supreme Court of United States and Supreme Court of
Pennsylvania, or at expiration of time for seeking such review); Pa.R.A.P. 1113
(allowing 30 days to file petition for allowance of appeal with Pennsylvania
Supreme Court).
Nevertheless, the fact that the current PCRA petition is facially untimely
does not deprive Appellant of meaningful appointment of counsel throughout
litigation of his first PCRA petition. See Perez, supra. Notwithstanding
Appellant’s asserted exception to the PCRA time-bar, PCRA counsel failed to
conduct any analysis of the time-bar exceptions in his no-merit letter, and
instead decided that Appellant’s ineffectiveness claim failed on the merits. 9
Current appellate counsel similarly failed to analyze whether any time-bar
exception applied in this case and instead decided Appellant’s ineffectiveness
claims failed on the merits.
Further, the record indicates that Appellant might have a non-frivolous
issue concerning appellate counsel’s (Attorney Whalen’s) ineffectiveness, if he
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9 Likewise, the PCRA court denied relief on Appellant’s claims for lacking merit.
The court did not conduct any timeliness analysis. (See Rule 1925(a) Opinion,
filed 1/8/21, at 3-7).
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can establish a PCRA time-bar exception. See Halley, supra (holding failure
to file timely Rule 1925(b) statement on behalf of criminal defendant
constitutes per se ineffectiveness such that prejudice is legally presumed;
remedy for such deprivation of fundamental right to appeal is its
restoration).10
Under these circumstances, the best resolution of this case is to vacate
the order denying PCRA relief and remand for further proceedings. See
Kenney, supra; Betts, supra. On remand, current counsel shall: (1)
analyze whether any time-bar exception applies to render the PCRA petition
timely; (2) review Appellant’s pro se allegations of PCRA counsel’s
ineffectiveness;11 (3) file supplemental briefing on these issues within a
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10 In Halley, this Court on direct appeal had considered the appellant’s issues
waived, but in a footnote, concluded that the claims would merit no relief in
any event. Our Supreme Court acknowledged as much, stating:
We are cognizant that both the PCRA court and the Superior
Court have conducted merits review of Appellant’s
underlying claims and found no basis for relief. Although
our decision here will thus result in duplicative review in
Appellant’s particular circumstance, the necessary review
does not appear to be burdensome, and this case was not
selected to determine whether an alternative procedure
might serve as an adequate substitute to vindicate a
criminal defendant’s constitutionally guaranteed right to a
direct appeal.
Id. at 173 n.5, 870 A.2d at 801 n.5 (internal citation omitted).
11 As this Court acknowledged in Betts, “Appellant’s assertions of [PCRA
counsel’s] ineffectiveness may ultimately prove meritless. Our holding is
(Footnote Continued Next Page)
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reasonable time frame; and (4) continue to represent Appellant for the
duration of these PCRA proceedings. The Commonwealth shall have a
reasonable opportunity to respond. Thereafter, the PCRA court shall proceed
as it deems appropriate. See id. (issuing similar instructions upon remand).
Order vacated. Case remanded with instructions. Counsel’s petition to
withdraw denied. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2021
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concerned only with ensuring those claims are given proper consideration.
Due to the nature of our holding, we express no opinion on the arguable merit
of Appellant’s assertions.” Betts, supra at 625 n.13.
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