Com. v. Grubbs, R.

J-S13019-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICKY E. GRUBBS :
:
Appellant : No. 995 WDA 2018
Appeal from the PCRA Order Entered June 5, 2018
In the Court of Common Pleas of Indiana County
Criminal Division at No(s): CP-32-CR-0000514-2013
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.
MEMORANDUM BY OTT, J.: FILED MAY 30, 2019
Ricky E. Grubbs appeals, pro se, from the order entered June 5, 2018,
in the Indiana County Court of Common Pleas, denying his first petition for
collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. Grubbs seeks relief from the judgment of sentence of
two to seven years’ imprisonment imposed following his plea of nolo contendre
to one count of statutory sexual assault.1 On appeal, he challenges the legality
of his 25-year registration requirement under Pennsylvania’s Sexual Offender
Notification and Registration Act (“SORNA”).2 For the reasons below, we
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 Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S. § 3122.1(a)(2).
2 See 42 Pa.C.S. §§ 9799.10-9799.41, amended and replaced by 2018, Feb.
21, P.L. 27, No. 10, § 19, immediately effective. Reenacted 2018, June 12,
P.L. 140, No. 29, § 14, immediately effective. 42 Pa.C.S. §§ 9799.51-9799.75
(“SORNA II”).
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vacate the order denying PCRA relief, and remand for the appointment of
counsel.
On three occasions between June of 2012 and January of 2013, Grubbs
sexually assaulted the nine-year-old victim. On August 26, 2013, he entered
the aforementioned nolo contendre plea to one count of statutory sexual
assault. Following a delay in the proceedings caused by an improper appeal,3
Grubbs was sentenced to a term of two to seven years’ imprisonment on April
11, 2014. Moreover, the court notified Grubbs of his 25-year registration
requirement as a sexual offender under SORNA. Grubbs’ judgment of
sentence was affirmed on direct appeal.4 See Commonwealth v. Grubbs,
120 A.3d 370 (Pa. Super. 2015) (unpublished memorandum).
On August 4, 2017, Grubbs filed a “Pro Se Petition to Correct and/or
Modify Unconstitutional Sentence” based upon the Pennsylvania Supreme
Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017),
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3 Under the plea agreement, the Commonwealth agreed to recommend a
county sentence. The victim’s father objected to the mitigated sentence and
attempted to appeal the entry of the plea. The appeal was later quashed by
this Court.
4 We note that on October 24, 2014, while his direct appeal was pending,
Grubbs filed a PCRA petition. The trial court properly denied that petition
without prejudice on October 28, 2014. See Commonwealth v. Leslie, 757
A.2d 984, 985 (Pa. Super. 2000) (“A PCRA petition may only be filed after an
appellant has waived or exhausted his direct appeal rights.”).
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cert. denied, 138 S.Ct. 925 (2018),5 which the court considered to be a PCRA
petition. The PCRA court appointed counsel, but later stayed the proceedings,
upon the Commonwealth’s request, pending the United States Supreme
Court’s decision on the petition for certiorari filed in Muniz. On December 20,
2017, Grubbs filed a pro se amended PCRA petition, in which he averred he
had dismissed appointed counsel, and requested a “Stand By Lawyer.”6
Amended Petition for Post Conviction Collateral Relief, 12/20/2017, at 12. The
PCRA court entered an order on January 4, 2018, appointing Jennifer Westrick,
Esquire, to represent Grubbs, and directing her to file, within 90 days, (1)
either an amended petition or, (2) if she determined no amendment was
necessary, a scheduling order for a hearing. See Order, 1/4/2018. Before
counsel took any action, on February 1, 2018, the Commonwealth filed a
motion to reschedule the hearing after the United States Supreme Court
denied certiorari in Muniz.
A PCRA hearing was subsequently conducted on June 5, 2018. That
same day, the PCRA court entered an order denying relief. Grubbs filed a
timely pro se notice of appeal on July 5, 2018. Thereafter, on July 9, 2018,
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5 In Muniz, the Pennsylvania Supreme Court held SORNA’s registration
provisions constitute punishment, and, therefore, the retroactive application
of those provisions violates the ex post facto clauses of the federal and
Pennsylvania constitutions.
6We note Grubbs did not request to proceed pro se, and no Grazier hearing
was conducted. See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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counsel filed a motion to withdraw as counsel, averring her appointment “was
limited to amending the [PCRA petition] and representation at [the PCRA]
hearing held on June 5, 2018.” Motion to Withdraw as Counsel, 7/9/2018.
The court granted her motion on July 10, 2018.
Preliminarily, we must address Grubbs’ pro se status on appeal. It is
well-settled that indigent criminal defendants “have a general rule-based right
to assistance of counsel for their first PCRA Petition.” Commonwealth v.
Cherry, 155 A.3d 1080, 1082 (Pa. Super. 2017), citing Pa.R.Crim.P. 904(C).
The petition at issue herein is Grubbs’ first request for collateral relief after his
judgment of sentence was final.7 Therefore, he is entitled to the appointment
of counsel to assist him “throughout the post-conviction collateral
proceedings, including any appeal from disposition of the petition for post-
conviction collateral relief.” Pa.R.Crim.P. 904(F)(2).
Furthermore, we emphasize that:
[O]nce counsel is appointed, he [or she] must take affirmative
steps to discharge his [or her] duties.
When appointed, counsel’s duty is to either (1) amend the
petitioner’s pro se Petition and present the petitioner’s claims in
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7As noted supra, Grubbs filed a premature petition while his direct appeal was
pending. However, that petition does not count as his first. See
Commonwealth v. Kubis, 808 A.2d 196, 198 n.4 (Pa. Super. 2002) (finding
defendant’s premature PCRA petition filed while his direct appeal was pending
did not “constitute a first PCRA petition” because the PCRA “has no
applicability until the judgment of sentence becomes final”), appeal denied,
813 A.2d 839 (Pa. 2002).
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acceptable legal terms, or (2) certify that the claims lack merit by
complying with the mandates of Turner/Finley.6 “If appointed
counsel fails to take either of these steps, our courts have not
hesitated to find that the petition was effectively uncounseled.”
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6Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213(1988) (en banc ).
Cherry, supra, 155 A.3d at 1082-1083 (internal citations omitted).
Our review of the record reveals appointed counsel neither amended
Grubb’s pro se PCRA petition nor sought to withdraw pursuant to the
requirements of Turner/Finley. See also Commonwealth v. Freeland,
106 A.3d 768, 774 (Pa. Super. 2014) (requirements for post-conviction
counsel to withdraw from representation). Rather, here, counsel sought to
withdraw based solely on her misperception that her appointment was limited
to the filing of an amended petition (which she never did) and representation
at the PCRA hearing.8 See Motion to Withdraw as Counsel, 7/9/2018. By
granting counsel’s petition to withdraw absent the Turner/Finley protections,
the PCRA court essentially forced Grubbs to proceed pro se.
Therefore, we are constrained to vacate the order denying PCRA relief,
and remand for the appointment of counsel within 30 days of the filing of this
decision. Once such an appointment is made, counsel is directed, within 60
days of the appointment, to either file an amended PCRA petition, or certify
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8 We recognize counsel’s confusion may have emanated from the court’s
appointment notice, which directed her to file an amended petition or seek to
reschedule the hearing. See Order, 1/4/2018.
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the claims lack merit and request to withdraw from representation pursuant
to the requirements of Turner/Finley.
Order vacated. Case remanded with directions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/2019
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