Com. v. Deputy, W.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
WILLIAM DEPUTY :
:
Appellant : No. 168 EDA 2020
Appeal from the PCRA Order Entered October 22, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005454-2014
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: Filed: May 13, 2021
William Deputy appeals from the order entered in the Philadelphia
County Court of Common Pleas on October 22, 2019, dismissing his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§
9541-9546 as untimely. After careful review, we vacate the order and remand
with instructions.
In March 2014, Deputy was charged in connection with the February 22,
2014 shooting and killing of Antorie Coates and Maria Cruz and then setting a
minivan on fire with the victims inside. Deputy, who faced multiple charges of
murder and a possible death sentence, in addition to arson and related
charges, entered a counseled, negotiated guilty plea to two counts of first-
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* Retired Senior Judge assigned to the Superior Court.
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degree murder on September 9, 2015. In exchange for his guilty plea, the
Commonwealth agreed to withdraw its previously filed notice of intent to seek
the death penalty.
During the oral guilty plea colloquy, the trial court specifically asked
Deputy whether he was taking any prescription medication at the present
time, to which he responded “no”, and whether he had ever been treated for
any mental illness or mental disease, to which he again responded “no.”
Notably, next to those corresponding statements on his written guilty plea
colloquy, there were brief handwritten notes which read “MH -”, “in prison -”,
and “meds - Benadryl, Risprodal, Prozac”. Written Guilty Plea Colloquy, at 1.
Plea counsel did not claim that Deputy was in any way incompetent or
suffering from any mental health problems, nor did the court inquire into
competency or elaborate on any mental health concerns. In fact, it appears
from the record that a mental health evaluation was specifically waived. See
N.T., Guilty Plea Hearing, 9/9/2015, at 21.
After conducting the oral guilty plea colloquy, the trial court accepted
the plea. Id. at 20-21. In conformity with the plea agreement, Deputy was
sentenced to concurrent sentences of life imprisonment without the possibility
of parole. Despite being informed of his appellate rights, Deputy did not file
post-sentence motions or a direct appeal.
On August 10, 2018, Deputy filed a pro se PCRA petition claiming the
trial court, district attorney, and his trial counsel knew or should have known
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that he suffered from a mental disorder and therefore could not help in his
own defense. PCRA counsel was appointed, but did not file an amended
petition. Instead, counsel filed a Finley1 no-merit letter. The letter largely
ignored the issues raised in the pro se petition, instead simply concluding the
petition was untimely. While counsel asserted in the letter that he intended to
seek leave to withdraw from the case, no separate motion formally seeking
leave to withdraw was filed. The PCRA court subsequently issued notice of its
intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907,
as it concluded the petition was untimely filed and did not fall under any
exception to the PCRA’s time-bar.
Deputy filed a pro se response to the Rule 907 notice, raising a claim of
ineffective assistance of PCRA counsel based on his assertion that PCRA
counsel never contacted him and that he did not know he even had counsel
until he received the Finley no-merit letter and the Rule 907 notice. He further
claimed PCRA counsel was ineffective for failing to investigate his mental
illness history.
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1 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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On October 22, 2019, the PCRA court entered an order dismissing the
PCRA petition as untimely. Notably, the court did not address Deputy’s claims
of PCRA counsel ineffectiveness. This timely pro se appeal followed.2
In February 2020, PCRA counsel filed an application to withdraw as
counsel to this Court, which we granted by per curiam order.
In June 2020, this Court issued a per curiam order dismissing Deputy’s
appeal for failure to file a timely brief. In response, Deputy filed a pro se
application which we deemed an application to reinstate the appeal and shortly
thereafter also filed a pro se application seeking reconsideration of the order
dismissing his appeal.
In July 2020, we issued a per curiam order reinstating the appeal,
vacating our March 3, 2020 order granting PCRA counsel leave to withdraw,
and remanding to the PCRA court with instructions to resolve PCRA counsel’s
application to withdraw. On remand, the PCRA court granted PCRA counsel
leave to withdraw and at the same time appointed new counsel to represent
Deputy on appeal.
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2 We note that Deputy was still represented by PCRA counsel when he filed
the pro se notice of appeal. Generally, hybrid representation is forbidden
under Pennsylvania law. See Commonwealth v. Williams, 151 A.3d 621,
623 (Pa. Super. 2016). Therefore, pro se documents filed with a court while
the filer is represented by counsel are generally rejected as legal nullities. See
id. However, pro se notices of appeal are an exception to this general rule.
See id. at 624. Accordingly, Deputy’s pro se notice of appeal was
appropriately filed and procured our jurisdiction over his appeal.
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On appeal, PCRA appellate counsel raises a claim that the PCRA court
erred in denying Deputy’s PCRA petition without a hearing based on his
assertion that the court failed to resolve Deputy’s timely filed pro se claim of
PCRA counsel ineffectiveness or appoint new counsel to review that claim and
assist Deputy in its presentation. See Appellant’s Brief, at 5.3
We agree and are compelled to address the procedural irregularities in
this case concerning Deputy’s response to the Rule 907 notice and allegations
of PCRA counsel's ineffectiveness, and the PCRA court's treatment of those
claims. “Specifically, where 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.” See Commonwealth v. Betts, 240 A.3d 616, 621 (Pa.
Super. 2020) (internal quotation marks omitted) (citing Commonwealth v.
Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011)). This is true even when the
underlying petition is facially untimely. See Stossel, 17 A.3d at 1288.
As this is Deputy’s first PCRA petition, he is entitled to legal
representation during the entirety of the proceedings. See Betts, 240 A.3d at
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3 PCRA appellate counsel also raises a claim that the PCRA court erred in
denying Deputy’s PCRA petition as untimely and without a hearing because
prior counsel’s Finley letter failed to present sufficient analysis regarding
whether Deputy’s alleged mental illness during the statutory period in which
he could file a timely PCRA petition may trigger the “newly discovered fact”
exception to the PCRA time-bar. Due to our disposition, we need not reach
this issue. On remand, counsel will have the chance to seek leave to properly
raise this issue in an amended petition if he deems it to have merit.
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621. “[T]he 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) (citation omitted).
Our Supreme Court has held that counseled PCRA petitioners must 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) (determining defendant had waived claims of PCRA
counsel’s ineffectiveness since he had raised them for the first time in a pro
se appeal rather than in his response to the Rule 907 notice).
Here, Deputy complied with Pitts by filing a timely objection to the PCRA
court's Rule 907 notice raising allegations of PCRA counsel’s ineffectiveness.
Specifically, Deputy alleged PCRA counsel never contacted Deputy and
performed no investigation of his claim of mental illness. See Objection to
Rule 907 Order, 10/16/2019, at 5. This allegation, if established, would be
sufficient to entitle Deputy to have new counsel appointed with the opportunity
to request the filing of an amended PCRA petition. See Commonwealth v.
Cruz, 852 A.2d 287, 297 (Pa. 2004) (holding that proof of mental
incompetency during post-conviction period could qualify as a newly
discovered fact and entitle petition to an exception to the time-bar). We
further note that PCRA counsel’s Finley letter does not cite Cruz or
acknowledge that mental incompetency could form the basis of an exception
to the time-bar.
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Despite this, the PCRA court never addressed Deputy’s properly raised
claim of PCRA counsel ineffectiveness prior to dismissing his PCRA petition.
See Order, 10/22/2019 (acknowledging only the timeliness of the petition).
Compounding the problem, although PCRA counsel did not officially withdraw
from this case until months later, PCRA counsel also never acknowledged that
Deputy had raised issues with PCRA counsel’s performance.
Our chief concern is that Deputy never received the assistance of
counsel in arguing the merits of his ineffectiveness claims to the PCRA court.
See Betts, 240 A.3d at 623. Deputy unambiguously voiced his dissatisfaction
with PCRA counsel’s representation. Deputy’s rule-based right to effective
counsel extends throughout the entirety of his first PCRA proceeding. See
Holmes, 79 A.3d at 583. Here, Deputy had a right to effective counsel when
he alleged, with specificity, PCRA counsel’s ineffectiveness in response to the
PCRA court's Rule 907 notice. See Betts, 240 A.3d at 624-5.
Further, we find Deputy was effectively denied the chance to request
the opportunity to file an amended petition since the PCRA court denied his
petition without responding to any of his issues raised in his response to the
Rule 907 notice.
The purpose behind a Rule 907 pre-dismissal notice is to allow a
petitioner an opportunity to seek leave to amend his petition and
correct any material defects, the ultimate goal being to permit
merits review by the PCRA court of potentially arguable claims.
The response is an opportunity for a petitioner and/or his counsel
to object to the dismissal and alert the PCRA court of a perceived
error, permitting the court to discern the potential for
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amendment. The response is not itself a petition and the law still
requires leave of court to submit an amended petition.
Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa. Super. 2012) (internal
quotation marks and citations omitted).
The failure of the PCRA court to properly respond to Deputy’s assertions
of ineffectiveness, coupled with the inability of PCRA counsel to meaningfully
represent Deputy once these allegations had been advanced, collectively
undermined Deputy’s right to the effective assistance of counsel. See Betts,
240 A.3d at 624. We therefore vacate the PCRA court’s order and remand with
the same instructions as in Betts:
On remand, we direct the PCRA court to appoint substitute PCRA
counsel to represent Appellant. Newly-appointed PCRA counsel
shall: (1) review Appellant's pro se objections concerning [PCRA
counsel’s] ineffectiveness; (2) file supplemental briefing limited to
discussing the merits of those claims within a reasonable time
frame; and (3) continue to represent Appellant for the duration of
these PCRA proceedings. The Commonwealth shall have an
opportunity to file a response to any supplemental filings from
Appellant. Thereafter, the PCRA court shall have the discretion to
proceed as it deems fit under Pennsylvania law and the
Pennsylvania Rules of Criminal Procedure, including ordering
further proceedings and granting or denying Appellant's PCRA
petition.
Betts, 240 A.3d at 625.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/21
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