Com. v. Hawkins, Q.

J-S09005-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
QUYDEEM HAWKINS :
:
Appellant : No. 1177 EDA 2020
Appeal from the PCRA Order Entered March 2, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002404-2014
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED MAY 20, 2022
Quydeem Hawkins appeals, pro se, from the trial court’s order, entered
in the Court of Common Pleas of Philadelphia County, denying his petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
After careful review, we reverse and remand.
In 2015, Hawkins was convicted, by a jury, of first-degree murder and
related offenses and sentenced to a mandatory term of life in prison without
the possibility of parole. Hawkins filed a direct appeal alleging insufficiency of
the evidence to sustain his convictions and trial court error in denying his
motion for a mistrial. Our Court affirmed Hawkins’ judgment of sentence.
See Commonwealth v. Hawkins, No. 538 EDA 2015 (Pa. Super. filed March
15, 2016) (unpublished memorandum decision). Hawkins filed an
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S09005-22
unsuccessful petition for allowance of appeal with the Pennsylvania Supreme
Court. Id., No. 135 EAL 2016 (Pa. filed July 19, 2016) (per curiam order).
On July 14, 2017, Hawkins filed the instant pro se PCRA petition and
accompanying pro se memorandum of law. Michael I. McDermott, Esquire,
was appointed as PCRA counsel. On January 8, 2020, Attorney McDermott
filed an application to withdraw, that included a Turner/Finley1 “no-merit”2
letter sent to Hawkins, after concluding that Hawkins’ PCRA petition had no
merit. On January 9, 2020, the PCRA court gave Pa.R.Crim.P. 907 notice of
its intent to dismiss Hawkins’ petition without a hearing. The notice stated, in
part: “(1) Your attorney has determined that the issues raised in your pro se
petition are without merit. See counsel’s letter pursuant to Commonwealth
v. Finley, [] 550 A.2d 213 ([Pa. Super.] 1988). (2) The [c]ourt, after an
independent review of the record, accepts the Finley letter and finds that the
. . . issues raised in your PCRA petition are without merit [and] . . . have been
previously litigated.” Rule 907 Notice, 1/9/20. A second Rule 907 dismissal
____________________________________________
1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2 This Court has clearly set forth the procedural prerequisites that counsel
must meet before being permitted to withdraw from representation on
collateral appeal. Counsel must file a Turner/Finley no-merit letter, and that
letter must detail counsel’s diligent review of the case, list the issue the
appellant wishes to be reviewed, explain why that issue lacks merit, and
request permission to withdraw. See Commonwealth v. Wrecks, 931 A.2d
717, 721 (Pa. Super. 2007). In addition, counsel must send the appellant a
copy of the no-merit letter, a copy of the application to withdraw, as well as a
statement advising the appellant of his right to proceed with new counsel or
pro se. See id.-2-
J-S09005-22
notice, with identical language, was issued by the court on January 31, 2020.
Neither Rule 907 notice explicitly grants counsel’s petition to withdraw.
The court ultimately dismissed Hawkins’ PCRA petition on March 2,
2020, advising Hawkins that he “may proceed pro se or with retained counsel
[and that] no new counsel will be appointed.” Order, 3/2/20. Again, the
dismissal order does not explicitly grant counsel’s petition to withdraw. The
dismissal order was sent to both Hawkins and Attorney McDermott, who was
listed on the proof of service attached to the order as “Appellate Attorney.”
Proof of Service, 3/2/20.
Hawkins filed a pro se notice of appeal hand-dated March 15, 2020, sent
in an envelope postmarked March of 2020, and received by the trial court’s
Office of Judicial Records/Appeals/Post Trial Unit on May 18, 2020.3 On May
26, 2020, the trial court issued an order for Hawkins to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal within 21 days of the filing of the
order. Attached as “Exhibit A” to his appellate brief is Hawkins’ pro se
“Statement of Matters Complain[ed] of Pursuant to Rule of Appell[ate]
____________________________________________
3 Although Hawkins’ notice of appeal was technically due to be filed by April
2, 2020, our Supreme Court entered a judicial emergency order in response
to the COVID-19 pandemic stating that “[i]n all events, legal papers or
pleadings . . . which are required to be filed between March 19, 2020, and
May 8, 2020, generally SHALL BE DEEMED to have been timely filed if they
are filed by May 11, 2020.” See In Re: General Statewide Judicial
Emergency, Nos. 531 and 532 Judicial Administrative Docket, at 5, Section
III. Court Filings and Time Limitations and Deadlines (Pa. filed April 28,2
020). Here, where Hawkins was an inmate at the time he filed his notice of
appeal, and where the envelope attached to his notice of appeal is postmarked
March of 2020, we find that it was timely filed pursuant to the prisoner mailbox
rule. See Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997).
-3-
J-S09005-22
Procedure 1925(b),” which states: “That the Defendant is entitled to a
remand as the[re are] mer[]ited claims to support ineffective counsel, due
process [] violations for his first PCRA appeal[,] where he re[c]eived a Finley
letter without explanation.” See Appellant’s Brief, Exhibit A (Rule 1925(b)
Statement), hand-dated 5/28/20 (italics and bold added). However, there is
nothing on the trial court docket indicating that a Rule 1925(b) statement was
ever filed. In fact, on August 11, 2020, the trial court issued its Rule 1925(a)
opinion, noting therein that it had not yet received Hawkins’ court-ordered
Rule 1925(b) statement and, thus, found Hawkins waived any issues on
appeal. Trial Court Opinion, 8/11/20, at 5-6, citing Commonwealth v.
Castillo, 888 A.23d 775 (Pa. 2005).
On September 21, 2020, Attorney McDermott filed, in this Court, an
application for extension of time within which to file Hawkins’ appellate brief
and reproduced records, where counsel “has finished researching the law and
is currently preparing the brief and reproduced record.” See Appellant[’s]
Application for an Extension of Time to File Brief and Reproduced Records,
9/21/20, at 1. The application further states that “Michael I. McDermott,
Esquire, [is] counsel for petitioner, Quydeem Hawkins[.]” Id. at 2. In
response to the application, our Court granted Attorney McDermott an
extension until November 20, 2020, to file an appellate brief. Order, 9/21/20.
The extension order was served, via PACFile on Attorney McDermott and
Philadelphia Assistant District Attorney, Lawrence Jonathan Goode, Esquire,
-4-
J-S09005-22
Service List, Docket No. 1177 EDA 2020, 9/21/20. It was not served on
Hawkins.
On December 16, 2020, our Court entered an order remanding the case
to the PCRA court for 30 days for a determination as to whether counsel had
abandoned Hawkins on appeal where counsel failed to file a brief on Hawkins’
behalf. Per Curiam Order, 12/16/20. In response to our remand order, on
February 9, 2021, the trial court entered a “Response” as well as a “nunc pro
tunc order” permitting “Michael I. McDermott to withdraw as counsel for the
defendant, effective March 2, 2020.” Nunc Pro Tunc Order, 2/9/21 (emphasis
added). In its response, the trial court stated the following:
[]Pursuant to the Order of the Superior Court of Pennsylvania, the
trial court submits the following findings.
[]On November 15, 2013[,] the defendant was arrested and
charged with murder and related offenses. Following a
preliminary hearing on March 4, 2014, [Hawkins] was held for
court on all charges. A jury trial was held from February 9th
through February 13, 2015, after which Mr. Hawkins was
convicted of first-degree murder and related charges and
sentenced to life without parole. A timely appeal was taken to the
Superior Court[, which] affirmed the judgment of sentence on
March 15, 2016. Allocatur was requested but denied on July 19,
2016.
[]Hawkins filed his PCRA petition on July 17, 2017[,] and counsel
[was] appointed. On January 8, 2020[,] counsel filed a Finley
letter with a request to withdraw as counsel. After an independent
review, the court sent [Hawkins] and all counsel a notice of intent
to dismiss pursuant to [R]ule 907. No objection being filed, the
matter was dismissed by the court on March 2, 2020. The order
read:
AND NOW, this 2nd day of March 2020, pursuant to the Post
Conviction Relief Act, 42 Pa.C.S.A. [9541,] et seq.[,] it is
hereby ORDERED and DECREED that following an
-5-
J-S09005-22
independent review of the matter, the Petitioner's petition
for post-conviction relief is dismissed. The Petitioner has
thirty (30) days from the date of this Order in which to file
an appeal to the Superior Court of Pennsylvania if desired.
Petitioner may proceed pro se or with retained counsel, no
new counsel is to be appointed. If Petitioner is in forma
pauperis, that status is to continue.
The undersigned believed, as did counsel and obviously
[Hawkins], that the order clearly permitted the court-
appointed lawyer to withdraw. Indeed, [Hawkins] filed a pro
se appeal to the Superior Court on May 18, 2020. PCRA Counsel
never entered his appearance. On May 26[, 2020,] an order
pursuant to [Rule] 1925(b) was served upon [Hawkins] - not
counsel. On August 11, 2020, the PCRA court’s opinion was
served upon [Hawkins], again, not upon counsel. This court
finds that counsel did not abandon [Hawkins], that the
order allowing [Hawkins] to proceed pro se or by retaining
his own counsel, inferentially at the very least, provided
that counsel was allowed to withdraw. It is apparent that
the defendant understood this as well, filing his own notice
of appeal. In an overabundance of caution, the undersigned is
simultaneously entering an order allowing counsel to withdraw.
[]Accordingly, the judgment of sentence of this court should be
affirmed.
Response, 2/9/21, at 1-2 (emphasis added).
On February 24, 2021, Hawkins filed a “Motion to Appoint Counsel” in
this Court, stating that:
1. [] A Grazier [hearing] must be conducted to ascertain whether
[Hawkins] understands: (1) his right to be represented by
counsel; (2) that if he waived his right, he still be bound by all
normal procedural rules; and (3) that many rights and potential
claims may be permanently lost if not timely asserted.
Com[monwealth] v. Grazier, 713 A.2d 81 [(Pa. 1998)].
2. Com[monwealth] v. Robinson, 970 A.2d 455 [(Pa. 2009)].
It [i]s well[-]settled that a PCRA petitioner has a right to
representation of counsel for purposes of litigati[ng] first PCRA
petition through the entire appellate process.
-6-
J-S09005-22
3. [Hawkins] is not rehersed [sic] in law, his education in reading
comprehension is below the average reading standards,
making [Hawkins] incompetent. It is in the matter of justice
to appoint counsel to ensure [Hawkins’] constitutional rights
are not waived under United States 6th, 14th [C]onstitutional
[A]mendments [and] Pennsylvania Article I, Section 9.
4. [Hawkins has been] declared in[]forma pauperis by this court.
Motion to Appoint Counsel, 2/24/21 at 1-2.
On March 26, 2021, our Court, in a per curiam order, denied Hawkins’
motion, citing Commonwealth v. Peterson, 756 A.2d 687 (Pa. Super. 2000)
and Commonwealth v. Maple, 559 A.3d 953 (Pa. Super. 1989), to support
its decision. Peterson and Maple stand for the proposition that, while a PCRA
petitioner is entitled to counsel in his or her first collateral appeal, if counsel
is properly permitted to withdraw, then the appointment of counsel post-
withdrawal is unnecessary and improper.
On April 5, 2021, Hawkins filed a pro se “Motion for Discovery,” stating
that “to successfully appeal [he] must obtain all documents of evidentiary
value . . . pertaining to this case for further evaluation to determine whether
other issues previously missed by prior counsel and prior court [sic] exists.”
Motion for Discovery, 4/5/21. In response, our Court remanded the case to
the PCRA court for 60 days, directing the court to provide Hawkins with copies
of any requested transcripts and documents that it deems necessary and
relevant for appeal purposes. Per Curiam Order, 4/26/21.
On May 17, 2021, Hawkins filed a pro se “Nunc Pro Tunc Application for
Relief” claiming, among other things, that he was “unable to adequately
prepare a proper rebuttal against a 20[-]day response due to not having any
-7-
J-S09005-22
legal documentation in his possession.” Nunc Pro Tunc Application for Relief,
5/17/21. Our Court deferred the issue to the merits panel. On June 22, 2021,
the trial judge reported that “all transcripts and discovery w[ere] provided [to
Hawkins] . . . for a complete and judicious assessment of the issues raised on
appeal[.] ” Report, 4/26/21.
In his appellate brief, Hawkins presents the following issues for our
consideration:
(1) Did [Hawkins’] counsel err in submitting a [F]inley letter
and seeking to withdraw as counsel?
(2) Did the lower court judge[, the Honorable Joseph Scott]
O’Keefe err in [g]ranting counsel[’s] Finley [letter] and
dismissing [Hawkins’] PCRA [petition]?
Appellant’s Pro Se Brief, at 3 (italics and bold added).
Several procedural issues concern us with this case. First, it is clear that
“[o]nce counsel has entered an appearance on a defendant’s behalf[,] he is
obligated to continue representation until the case is concluded or he is
granted leave by the court to withdraw his appearance.”
Commonwealth v. Willis, 29 A.3d 393, 397 (Pa. Super. 2011) (emphasis
added). See Pa.R.Crim.P. 120(A)(4) (“An attorney who has been retained or
appointed by the court shall continue such representation through direct
appeal or until granted leave to withdraw by the court.”). Here, Attorney
McDermott petitioned to withdraw on January 8, 2020; however, the trial
court did not enter an order explicitly granting withdrawal until February 9,
-8-
J-S09005-22
2021, making it retroactively effective as of March 2, 2020. Critically, the
court dismissed Hawkins’ PCRA petition on that same date, March 2, 2020.
The record reveals that Attorney McDermott sent Hawkins a copy of the
no-merit letter, a copy of counsel’s application to withdraw, as well as a
statement advising Hawkins of his right to proceed with new counsel or pro
se. Moreover, the PCRA court’s two Rule 907 notices specifically stated that:
Hawkins had 20 calendar days to respond to the dismissal notice, the court
had independently reviewed the record, and the court had accepted counsel’s
Finley letter and found that the issues in Hawkins’ PCRA petition were without
merit or had been previously litigated. See Commonwealth v. Bond, 630
A.2d 1281, 1282 (Pa. Super. 1993) (where defendant was “well aware” of
deficiencies in his PCRA claims and of counsel’s intent to withdraw, additional
notification of court’s intent to dismiss his petition without hearing
unnecessary). Finally, in its dismissal order, which was entered more than 20
days after the court’s Rule 907 notice, the court also advised Hawkins that he
had the right to proceed pro se or with retained counsel and that no new
counsel would be appointed for him. Id. (even if court failed to strictly comply
with Pa.R.Crim.P. 1507 (now Rule 907) defendant suffered no prejudice by
failure where defendant aware of PCRA counsel’s intent to withdraw, advised
of appellate rights, and knew of opportunity to pursue appeal pro se or with
privately-retained counsel).
However, despite these facts, we are compelled to reverse and remand.
Instantly, the PCRA court never entered an order explicitly granting counsel’s
-9-
J-S09005-22
withdrawal until 13 months after it issued its first Rule 907 notice and 11
months after Hawkins’ notice of appeal was due. See Pa.R.Crim.P. 120(A)(4).
To add to the confusion in this case, PCRA counsel represented that he was
still “petitioner’s counsel” after the trial court issued its Rule 1925(a) opinion
and our Court set an appellate briefing schedule. Furthermore, the PCRA court
concluded Hawkins waived all issues on appeal for failure to file a timely Rule
1925(b) statement. Finally, and most notably, Hawkins did not gain access
to all relevant documents and pleadings in the case for purposes of filing a
Rule 907 response or a Rule 1925(b) statement until June of 2021—more than
15 months after he filed his notice of appeal.4
Based upon these facts, we conclude that, in the aggregate, the errors
in the case amount to reversible error. We cannot definitively state that
Hawkins knew whether Attorney McDermott had been permitted to withdraw
and what the proper procedure was for him to respond to the Rule 907 notice
and preserve his issues on appeal where the court and counsel gave him mixed
messages throughout the collateral appeal process. While the PCRA court
acted as though it had granted counsel’s withdrawal prior to dismissing
Hawkins’ petition—by sending Hawkins both the Rule 907 notice and PCRA
dismissal notice—it had not explicitly done so. Where no order granting
counsel’s withdrawal was entered on the record until after the notice of appeal
____________________________________________
4We find it telling that our Court found it necessary to remand this case twice,
once to determine whether counsel had abandoned Hawkins on appeal and a
second time to provide Hawkins with copies of any requested transcripts and
documents deemed necessary and relevant for appeal purposes.
- 10 -
J-S09005-22
was filed, Hawkins was still represented until ordered otherwise.5 See
Pa.R.Crim.P. 120(A)(4). Thus, subsequent orders, including the order
mandating the filing of a Rule 1925(b) statement, should have been sent to
counsel. Id.at 120(B)(1) (“Counsel for defendant may not withdraw his . . .
appearance except by leave of court.”). In light of the foregoing, we conclude
it would be unjust to find Hawkins’ issues on appeal waived for failing to file a
timely Rule 1925(b) statement. Commonwealth v. Leatherby, 116 A.3d
73 (Pa. Super. 2015) (where breakdown in court processes interferes with
post-trial proceedings, justice requires we do not penalize appellant for
circumstances beyond his or her control). In reaching this conclusion we
emphasize, again, that Hawkins did not receive any transcripts or
documentation that would have allowed him to proceed pro se until 13
months after the time to file a Rule 907 response, or a Rule 1925(b)
statement, and the trial court had already determined his claims to be waived
on appeal. Accordingly, we reverse.
Order reversed. Case remanded for preparation of Rule 907 response.
Jurisdiction relinquished.6
____________________________________________
5 We remind the PCRA court that best practices requires the court to explicitly
grant counsel’s request to withdraw, rather than waste Court resources
requiring that we “infer” the court’s intention.
6 We, herein, grant Hawkins’ May 17, 2021 application for relief by reversing
the order granting PCRA relief and remanding the matter where Hawkins now
has access to all necessary transcripts and documentation to adequately
prepare a Rule 907 response.
- 11 -
J-S09005-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2022
- 12 -