Com. v. Holloway, D. ( 2021 )

J-A24045-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID HOLLOWAY :
:
Appellant : No. 2243 EDA 2020
Appeal from the PCRA Order Entered November 4, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0508761-2006
BEFORE: LAZARUS, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED OCTOBER 4, 2021
David Holloway (Holloway) appeals from the November 4, 2020 order
of the Court of Common Pleas of Philadelphia County (PCRA court) dismissing
his petition filed pursuant to the Post-Conviction Relief Act1 (PCRA) without a
hearing. We vacate the order and remand for further proceedings.
Only a brief procedural history is necessary to our disposition. In 2008,
Holloway was convicted following a jury trial of three counts of attempted
murder, four counts of aggravated assault, and one count each of conspiracy,
possessing an instrument of crime and carrying a firearm without a license. 2
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541 et seq.
2 18 Pa.C.S. §§ 901(a), 2702(a), 903(a)(1), 907(a) & 6106(a)(1).
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He was sentenced to an aggregate term of 47 to 107 years’ imprisonment.
After his direct appeal rights were reinstated nunc pro tunc, this Court affirmed
the judgment of sentence and our Supreme Court denied further review.
Commonwealth v. Holloway, 2104 EDA 2010, at *15 (Pa. Super. Feb. 1,
2012), allocatur denied, 63 A.3d 1244 (Pa. 2013) (table).
Holloway filed a timely first PCRA petition raising claims of ineffective
assistance of counsel and challenging the legality of his sentence. The PCRA
court granted relief on the sentencing claim and resentenced Holloway in
December 2017. The PCRA court vacated Holloway’s sentence for conspiracy
to commit murder and resentenced him for the lesser offense of conspiracy to
commit aggravated assault.3 The sentence remained the same in all other
respects. Holloway timely appealed and this Court again affirmed the
judgment of sentence. Commonwealth v. Holloway, 4012 EDA 2017, at
*3 (Pa. Super. Aug. 29, 2019), allocatur denied, 224 A.3d 365 (Pa. Feb. 4,
2020) (table). Our Supreme Court denied his petition for allowance of appeal
on February 4, 2020.
On March 11, 2020, Holloway filed the instant petition. He pled, inter
alia, that prior counsel were ineffective for failing to challenge the imposition
of consecutive sentences for multiple inchoate crimes. He requested that the
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3 Holloway had originally been sentenced to 8 to 20 years’ incarceration to be
served consecutively on the conspiracy charge. The PCRA court resentenced
him to 5 to 10 years’ incarceration to be served concurrently.
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PCRA court appoint counsel and grant an evidentiary hearing on the claims.
He filed an amended petition on June 30, 2020, arguing that prior counsel
were ineffective for failing to file a post-sentence motion or argue on direct
appeal that his consecutive sentences for attempted murder and aggravated
assault should have merged. On August 7, 2020, he filed a second amended
petition raising claims related to ineffective assistance of trial and prior PCRA
counsel related to the jury trial proceedings. He again requested that counsel
be appointed to assist him in litigating his claims. Finally, on August 10, 2020,
Holloway filed a motion for appointment of counsel arguing that he was
entitled to counsel because his petition should be considered a timely first
PCRA petition.4
On September 15, 2020, the PCRA court issued a notice of intent to
dismiss the petition without a hearing on the basis that it was untimely, and
that Holloway had failed to plead and prove an exception to the PCRA’s
jurisdictional time-bar. Holloway filed a timely response to the notice arguing
that his petition was a first timely PCRA petition following his resentencing
hearing, and that the PCRA court had erred in failing to appoint counsel to
represent him. The PCRA court dismissed the petition and Holloway timely
appealed. The PCRA court did not order Holloway to file a concise statement
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4 The Commonwealth did not file a response to any of the pleadings.
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pursuant to Pa. R.A.P. 1925, but issued an opinion pursuant to that rule
explaining that it dismissed the petition as untimely.
We only address Holloway’s first issue on appeal, as it is dispositive.
Holloway argues that the PCRA court erred in failing to appoint counsel to
represent him in these proceedings, as it was a timely first PCRA petition
following his resentencing proceedings.5 We agree.6
It is well-established that an indigent petitioner is entitled to the
appointment of counsel for the purposes of litigating his first PCRA petition.
See Pa.R.Crim.P. 904(C). The question of whether a petitioner is entitled to
counsel is separate from the question of whether he is entitled to relief, and
counsel must be appointed for a first PCRA petition “despite any apparent
untimeliness of the petition or the apparent noncognizability of the claims
presented.” Commonwealth v. Evans, 866 A.2d 442, 445 (Pa. Super. 2005)
(citation & emphasis omitted). A petitioner may require the assistance of
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5 “Our standard of review of a trial court order granting or denying relief under
the PCRA calls upon us to determine ‘whether the determination of the PCRA
court is supported by the evidence of record and is free of legal error.’”
Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) (citation
omitted). “This Court analyzes PCRA appeals in the light most favorable to
the prevailing party at the PCRA level. Our review is limited to the findings of
the PCRA court and the evidence of record[.]” Commonwealth v. Rigg, 84
A.3d 1080, 1084 (Pa. Super. 2014) (citations and internal quotation marks
omitted).
6 On appeal, the Commonwealth agrees that the case should be remanded for
the appointment of counsel. See Commonwealth’s Brief at 9-10.
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counsel in order to prove that a timeliness exception applies to a claim that
appears facially untimely. Id. at 446.
In its opinion pursuant to Pa. R.A.P. 1925(a), the PCRA court concluded
that the instant petition was untimely because Holloway’s judgment of
sentence became final in 2013 at the conclusion of his direct appeal
proceedings following his first sentencing hearing. Opinion, 4/29/21, at
unnumbered 2-4). For the following reasons, we disagree.
“A PCRA petition, including a second and subsequent petition, shall be
filed within one year of the date the underlying judgment becomes final.”
Commonwealth v. Graves, 197 A.3d 1182, 1185 (Pa. Super. 2018) (citation
omitted); see also 42 Pa.C.S. § 9545(b)(1). “[A] judgment becomes final at
the conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3); see
Commonwealth v. Andrews, 195 A.3d 917, 921 (Pa. Super. 2018).
However, when a PCRA petitioner is granted relief in the form of a new
sentencing hearing, a subsequent petition raising claims for relief related to
resentencing is timely if filed within one year of when the newly-imposed
sentence became final. See Commonwealth v. Lesko, 15 A.3d 345, 374
(Pa. 2011).
Here, Holloway was resentenced in December 2017. He filed a direct
appeal to this Court and subsequent petition for allowance of appeal in our
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Supreme Court, which was denied on February 4, 2020. Commonwealth v.
Holloway, 4012 EDA 2017, at *3 (Pa. Super. Aug. 29, 2019), allocatur
denied, 224 A.3d 365 (Pa. Feb. 4, 2020) (table). As a result, the instant
petition filed in March 2020 is a timely first PCRA petition because it raises
claims related to the legality of his sentence and ineffective assistance of
counsel in failing to challenge the legality of his sentence.7 Lesko, supra.
Holloway is, thus, entitled to the appointment of counsel. See Pa.R.Crim.P.
904(C). Accordingly, we vacate the order denying Holloway’s petition and
remand for the appointment of counsel and further proceedings in accordance
with the PCRA. Evans, supra.Order vacated. Case remanded for additional proceedings consistent
with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/2021
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7 We do not consider the timeliness of Holloway’s additional claims, as such
an analysis would be premature in light of our remand for the appointment of
counsel to review the case and litigate the petition. Evans, supra.
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