Com. v. Pettersen, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant, :
:
v. :
:
EDWARD WILLIAM PETTERSEN, JR. :
:
Appellee : No. 526 EDA 2014
Appeal from the PCRA Order January 28, 2014,
in the Court of Common Pleas of Pike County,
Criminal Division, at No(s): CP-52-CR-0000425-2009
BEFORE: MUNDY, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 27, 2016
Edward William Pettersen (Appellant) appeals pro se from the order
dismissing his first petition for relief filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We vacate the order and
remand for further proceedings consistent with this memorandum.
Appellant was arrested and charged with three counts of aggravated
assault, three counts of simple assault, and one count each of burglary,
criminal trespass, and recklessly endangering another person (REAP)
stemming from an October 14, 2009 attack on his estranged wife. The
matter proceeded to a jury trial, after which Appellant was convicted of all
counts. On July 7, 2011, Appellant was sentenced to an aggregate term of
21½ to 70 years’ incarceration. Appellant timely filed post-sentence motions
* Senior Judge assigned to the Superior Court.
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and a notice of appeal. A panel of this Court affirmed Appellant’s judgment
of sentence on July 16, 2012, and on March 13, 2013, our Supreme Court
denied his petition for allowance of appeal. Commonwealth v. Pettersen,
49 A.3d 903, 906-907 (Pa. Super. 2012), appeal denied, 63 A.3d 776 (Pa.
2013).
On April 19, 2013, Appellant timely filed a pro se PCRA petition.
Counsel was appointed and, on September 17, 2013, counsel filed with the
PCRA court a Turner/Finley1 letter and petition to withdraw as counsel. On
September 18, 2013, the PCRA court issued an order granting counsel’s
request to withdraw and notifying Appellant that he had 20 days in which to
file a response. Order, 9/18/2013. The court noted that it had “thoroughly
reviewed [counsel’s] motion and the record in its entirety and is satisfied
from this review that there are not genuine issues concerning any material
fact and that [Appellant] is not entitled to post-conviction collateral relief
and no purpose would be served by any further proceedings.” Id.On November 4, 2014, Appellant filed a response to counsel’s
Turner/Finley letter. In his response, Appellant did not raise any new
claims, but reargued issues addressed in his pro se PCRA petition. On
November 6, 2013, upon receipt of Appellant’s response, the PCRA court
entered an order scheduling an evidentiary hearing on December 16, 2013.
Thereafter, Appellant petitioned the court to appoint counsel and grant him
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)
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an extension of time to prepare, averring that he was indigent and
incarcerated and therefore unable to hire private counsel or access the law
library for the time necessary to perform legal research in advance of the
hearing. Both motions were denied by order dated November 18, 2013. As
a result, Appellant proceeded at the PCRA hearing pro se. The PCRA court
ultimately dismissed Appellant’s petition. The court explained as follows.
While [Appellant] has presented many pages of complaints
regarding his defense counsel and has legal arguments included
therein and while [Appellant] testified to most of that
information at the PCRA hearing, certain facts remain
uncontroverted: (1) [Appellant] presented no real evidence at
the PCRA hearing; (2) [Appellant] presented no witnesses at the
PCRA hearing; (3) despite his complaints regarding the
ineffective assistance of counsel argument, [Appellant]
presented no factual basis to support those complaints; and (4)
a thorough review of the case by appointed PCRA counsel
indicated that there was no merit to the many complaints of
[Appellant].
PCRA Court Opinion, 1/28/2014, at 14.
Appellant timely filed a notice of appeal. Both Appellant and the PCRA
court complied with the mandates of Pa.R.A.P. 1925.
On appeal,2 Appellant claims, inter alia, that the PCRA court violated
his right to counsel in allowing counsel to withdraw before Appellant’s
evidentiary hearing.3 Appellant’s Brief at 46-47. We agree.
2
“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, 192 (Pa. Super. 2013) (quoting
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).
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Rule 904 of the Rules of Criminal Procedure requires the appointment
of counsel for an indigent petitioner on his or her first PCRA petition.
Pa.R.Crim.P. 904(C). “This right to representation exists throughout the
post-conviction proceedings[.]” Commonwealth v. Brown, 836 A.2d 997,
998 (Pa. Super. 2003) (internal quotation marks and citations omitted).
Further, Rule 908, which governs hearings, provides: “The judge shall
permit the defendant to appear in person at the hearing and shall provide
the defendant an opportunity to have counsel.” Pa.R.Crim.P. 908(C)
(emphasis added). Indeed, if an evidentiary hearing is required, the Rules
mandate the appointment of counsel to represent a criminal defendant even
on a second or subsequent PCRA petition, where the defendant otherwise
has no entitlement to counsel. Pa.R.Crim.P. 904(D).
Here, the PCRA court appears to have taken the mutually exclusive
positions that (1) the PCRA claims Appellant wished to make were devoid of
merit,4 but (2) there were material issues of fact raised in Appellant’s
3
Although this issue was not stated precisely in the same fashion in his
1925(b) statement, Appellant did therein complain of PCRA counsel’s
withdrawal and the PCRA court’s failure to appoint new representation prior
to his evidentiary hearing. Appellant’s Concise Statement, 2/24/2014, at 2.
Moreover, even if Appellant had failed to raise the issue at all, “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.”
Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011).
4
Before granting PCRA counsel’s motion to withdraw, “[t]he PCRA court…
must conduct its own independent evaluation of the record and agree with
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petition which had to be resolved at a hearing before ruling upon the merits
of his claims.5 In its opinion to this Court, the PCRA court explains that
dismissal of Appellant’s petition was warranted because he, involuntarily
acting pro se, failed to satisfy the evidentiary requirements necessary to
support his legal arguments. PCRA Court Opinion, 1/28/2014, at 7-14. This
suggests that the PCRA court was of the opinion that there may have been
an evidentiary showing which, if made, could have entitled Appellant to
PCRA relief. Under such circumstances, Rule 908(C) required that Appellant
have the opportunity to have counsel. Because Appellant had established
his indigency, he was entitled to appointed counsel under Rule 904(C).
Therefore, we hold that the PCRA court erred in holding a hearing on
Appellant’s first PCRA petition after allowing counsel to withdraw. At the
December 16, 2013 hearing, Appellant had a rule-based right to the
assistance of counsel in attempting to sustain his evidentiary burden on any
issue raised in his PCRA petition.
Accordingly, we vacate the order denying Appellant relief and remand
this case to the PCRA court to correct its error by appointing counsel prior to
holding a new hearing on Appellant’s petition.
counsel” that the issues which the petitioner wishes to raise lack merit.
Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012).
5
Compare Pa.R.Crim.P. 907 (providing that the PCRA court shall give notice
of its intent to dismiss the PCRA petition without a hearing if it determines
that there are no issues of material fact and the defendant is not entitled to
relief) with Pa.R.Crim.P. 908(A) (providing that the judge shall order a
hearing when the petition raises material issues of fact).
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Order vacated. Case remanded for further proceedings consistent with
this memorandum. Jurisdiction relinquished.
Judge Olson joins.
Judge Mundy files a Dissenting Statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2016
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