Com. v. Joseph, L.

J-S30028-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAURENSAU JOSEPH :
:
Appellant : No. 694 EDA 2022
Appeal from the PCRA Order Entered February 18, 2022
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000092-1998
BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED MARCH 10, 2023
Laurensau Joseph (Appellant) appeals pro se from the February 18,
2022, order entered in the Wayne County Court of Common Pleas, denying
without a hearing his first, timely Post Conviction Relief Act1 (PCRA) petition,
which had been filed 21 years earlier.2 In its Pa.R.Crim.P. 907 notice, the
PCRA court also granted the petition of Appellant’s appointed counsel to
withdraw, filed 19 years earlier. Appellant avers the PCRA court erred in
denying his petition where PCRA counsel had abandoned him for 20 years.
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9545.
2 The Commonwealth is presently represented by the Office of the
Pennsylvania Attorney General (AG’s Office).
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We agree, and thus vacate and remand for the appointment of new counsel
and further proceedings.
In April of 1998, Appellant, then 24 years old, believed his former foster
brother, Michael Smith, stole his necklace and vandalized his car. They argued
in the victim’s bedroom. The victim
picked up a machete and [A]ppellant pulled out a hand gun and
shot [the victim] in the face[. The victim], bleeding profusely,
dropped the machete and went downstairs[. A]ppellant followed
and fired a second shot striking [the victim] in the forehead,
immediately killing him. The next day[, A]ppellant went to the
Pennsylvania State Police barracks [and] gave a 34-page
statement admitting that he shot [the victim] twice.
Commonwealth v. Joseph, 141 EDA 1999 (unpub. memo. at 2) (Dec. 3,
1999) (record citation omitted).
On August 20, 1998, Appellant was found guilty by a jury of first-degree
murder.3 Eight days later, on August 28th, the trial court imposed a sentence
of life imprisonment without parole.
On direct appeal, this Court affirmed the judgment of sentence on
December 3, 1999. We note the panel addressed, as was proper at that time,
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3 18 Pa.C.S. § 2502(a). Trial was conducted by the Honorable Robert Conway,
then President Judge. The instant PCRA order was issued by the current
President Judge, the Honorable Janine Edwards.
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several claims of trial counsel’s ineffectiveness.4 Appellant did not seek
allowance of appeal with the Pennsylvania Supreme Court.
On December 6, 2000, Appellant filed the underlying pro se, timely first
PCRA petition.5 He claimed there was new, exculpatory evidence that was not
available at the time of trial: a tan leather coat, photos showing damage to
Appellant’s car, and letters purporting to show Appellant had an affair with his
foster mother, the latter of which would allegedly show Appellant’s foster
father had a motive for testifying against him at trial.
On September 12, 2002, the PCRA court appointed Alfred Howell,
Esquire (PCRA Counsel), to represent Appellant. On November 7th, the court
granted PCRA Counsel’s request for an extension of time to file an amended
petition. This was the last docket entry attributable to the trial court for 19
years.
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4But see Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002) (“[A]s a
general rule, a petitioner should wait to raise claims of ineffective assistance
of trial counsel until collateral review.”) (footnote omitted).
5 For PCRA purposes, Appellant’s judgment of sentence became final on
Monday, January 3, 2000 — the expiration of the 30-day period for him to file
a petition for allowance of appeal. See 1 Pa.C.S. § 1908; 42 Pa.C.S.
§ 9545(b)(3); Pa.R.A.P. 1113(a). Appellant then generally had one year, or
until January 3, 2001, to file a PCRA petition. See 42 Pa.C.S. § 9545(b)(1).
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On December 23, 2002, PCRA Counsel filed a two-page motion to
withdraw from representation,6 along with a two-page letter addressed to the
PCRA court. Counsel stated he had “several correspondences” with Appellant,
and Appellant wished to pursue claims that trial counsel was ineffective for
failing to: (1) ask Appellant “what he was thinking at the time he fired the
second shot;” (2) present testimony by a forensic psychiatrist; (3) seek a
private investigator; (4) obtain Appellant’s “full notebook” through discovery;
and (5) “object to certain witnesses who cried while testifying.” PCRA
Counsel’s Motion to Withdraw as Counsel & Exh., Letter, 12/23/02. Counsel
offered no further discussion or legal analysis for any of these claims, but
concluded they were frivolous, and furthermore there were no valid and
justifiable claims. Counsel did not state whether he advised Appellant he was
seeking to withdraw or that Appellant had a right to retain new counsel or
proceed pro se.7 Neither the record nor the docket show any further
participation by PCRA Counsel in this matter.
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6This petition did not refer to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), or Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc), but did cite other cases that discussed Turner/Finley procedures.
7 Counsel seeking to withdraw from PCRA representation pursuant to Turner
and Finley must: (1) “submit a ‘no-merit’ letter to the trial court . . . detailing
the nature and extent of counsel’s diligent review of the case, listing the issues
which petitioner wants to have reviewed, explaining why and how those issues
lack merit, and requesting permission to withdraw.” Commonwealth v.
Doty, 48 A.3d 451, 454 (Pa. Super. 2012). Counsel must also “send to the
petitioner: (1) a copy of the ‘no merit’ letter/brief; (2) a copy of counsel’s
(Footnote Continued Next Page)
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Following the motion to withdraw, there was no docket activity for more
than five years, until Appellant filed a pro se letter on August 26, 2008. This
letter, which is not entirely clear, presented multiple allegations about his
foster mother: she had an affair with another person; she possibly stole his
necklace; she took control of his bank account, as power of attorney, following
his incarceration and stole the account’s money; and she pawned his various
electronic devices, which were meant to be given to Appellant’s son, in order
to buy “crack [cocaine].” Appellant’s Letter, 8/26/00, at 1-2 (unpaginated).
Appellant made one brief reference to his PCRA petition: “There is more
evidence in my PCRA sent in 2000.” Id. at 2.
The docket was then stagnant for another 13 years, until October 25,
2021, when Appellant filed a second pro se letter. Without any further
discussion, this four-sentence letter: (1) requested the address of a bank; and
(2) stated Appellant was not aware of a stipulation at trial, that “blood found
at the scene” was not Appellant’s blood, but the victim’s blood.8 See
Stipulation of Counsel, 8/18/98, attachment to Appellant’s Letter, 10/25/21.
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petition to withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.” Id.
8 These filings predated the 2004 amendment to Pa.R.Crim.P. 576(a)(4),
which now provides that when a represented defendant submits a pro se
motion, notice, or document, the clerk of courts shall stamp it with the date
of receipt, make a docket entry, and forward copies of the document to
defense counsel and the Commonwealth.
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Next, on November 23, 2021, the AG’s Office entered its appearance on
behalf of the Commonwealth and filed a motion for a status conference. The
Commonwealth explained Appellant had filed a habeas action in the United
States District Court for the Middle District of Pennsylvania, and that court
had, two days earlier, stayed the habeas action pending disposition of
Appellant’s still-outstanding 2000 PCRA petition.9
On January 4, 2022, Appellant filed a pro se “Motion for an Immediate
Evidentiary Hearing,” which averred PCRA Counsel had abandoned him for 21
years, and thus Appellant was denied his right to counsel. On the same day,
Appellant also filed an amended PCRA petition, raising several claims of trial
counsel’s ineffectiveness and newly-discovered evidence.
The following day, January 5, 2022, the PCRA court issued a
Pa.R.Crim.P. 907 notice of intent to dismiss the PCRA petition, the sum of
which stated, “ . . . [Appellant] is hereby ADVISED of his right to respond in
writing to this proposed dismissal within [20] days . . . .” Notice of Intent to
Dismiss, 1/5/22. On January 25th, however, the court issued an amended
Rule 907 notice, which agreed, without any legal discussion, with PCRA
Counsel’s 2002 assessment that Appellant’s claims were meritless. The court
also permitted PCRA Counsel to withdraw from representation.
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9 The caption for the federal matter is Joseph v. Estock, with a docket
number of 20-cv-1978.
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Appellant filed two pro se responses to the Rule 907 notice, both again
raising PCRA Counsel’s ineffectiveness for abandoning him. On February 18,
2022, the PCRA court entered the underlying order, denying the 2000 PCRA
petition. Appellant took this timely appeal and complied with the court’s order
to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The
court issued a brief Rule 1925(a) opinion, which referred to and incorporated
the Rule 907 notice.
On appeal, Appellant raises multiple claims of trial counsel’s
ineffectiveness, as well as newly-discovered evidence. We focus however on
one argument — that the PCRA court erred in denying his petition, where
PCRA Counsel abandoned him for 21 years, which caused him to be without
the effective assistance of counsel. Appellant’s Brief at 7, 13-14. Appellant
further avers the “inordinate delay in processing and disposing of his” petition
violated his due process rights. Id. at 11. We agree that relief is due.
“Our standard of review for issues arising from the denial of PCRA relief
is well-settled. We must determine whether the PCRA court’s ruling is
supported by the record and free of legal error.” Commonwealth v. Bush,
197 A.3d 285, 286 (Pa. Super. 2018) (citation omitted).
“[A] petitioner has a rule-based right to the appointment of counsel for
a first PCRA petition[,] Pa.R.Crim.P. 904,” which includes “the effective
assistance of counsel. The guidance and representation of an attorney during
collateral review ensures that meritorious legal issues are recognized and
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addressed, and that meritless claims are abandoned.” Commonwealth v.
Bradley, 261 A.3d 381, 391-92 (Pa. 2021).
“The indigent petitioner’s right to counsel must be honored
regardless of the merits of his underlying claims, even where
those claims were previously addressed on direct appeal, so long
as the petition in question is his first.” “Moreover, once counsel
is appointed, he [or she] must take affirmative steps to discharge
his [or her] duties.”
Commonwealth v. Cherry, 155 A.3d 1080, 1082-83 (Pa. Super. 2017)
(citations omitted). Finally, “due process requires that the post conviction
process be fundamentally fair. Thus, petitioners must be given the
opportunity for the presentation of claims at a meaningful time and in a
meaningful manner.” Bush, 197 A.3d at 288 (citation omitted).
On appeal, the Commonwealth argues for affirmance, despite the 20-
year lapse of time. See Commonwealth’s Brief at 10. In light of our review
of the record, however, we conclude Appellant is entitled to some measure of
relief.
We emphasize that in 2002, PCRA Counsel filed a two-page, deficient
motion to withdraw, and the PCRA court did nothing in this case for 20 years.
When prompted by the Commonwealth’s request for a status conference to
investigate this case, the PCRA court merely issued a Rule 907 notice of intent
to dismiss, based on PCRA Counsel’s 20-year old underdeveloped filing. The
court’s Rule 907 notice similarly lacked any legal analysis beyond merely
reciting broadly what Appellant’s claims would be.
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Furthermore, the PCRA court did not acknowledge, let alone address,
what effect, if any, the passage of 20 years may have had on Appellant’s
claims or due process rights, nor did the court consider whether any new
claims may have arisen and/or would be entitled to review. Meanwhile, since
the Commonwealth’s November 23, 2021, motion for a status conference,
Appellant has consistently argued he has been abandoned by PCRA Counsel.
Appellant timely raised this claim before and after the court’s Rule 907 notice,
and on appeal before this Court.10 Nevertheless, the PCRA court has not
addressed this claim.
On this particular record, we cannot conclude Appellant was properly
afforded “the opportunity for the presentation of claims at a meaningful time
and in a meaningful manner.” See Bush, 197 A.3d at 288 (citation omitted).
We emphasize that we offer no opinion as to the merits of any of the PCRA
claims Appellant has raised. Instead, we conclude an investigation of any
presently potential claims should be undertaken by an attorney, in accordance
with Appellant’s right to counsel. See Pa.R.Crim.P. 904; Bradley, 261 A.3d
at 391-92; Cherry, 155 A.3d at 1082-83. Accordingly, we vacate the order
denying Appellant’s PCRA petition, and remand for the PCRA court to appoint
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10 See Bradley, 261 A.3d at 401 (“[W]e hold that a PCRA petitioner may,
after a PCRA court denies relief, and after obtaining new counsel or acting pro
se, raise claims of PCRA counsel’s ineffectiveness at the first opportunity to
do so, even if on appeal[.]”).
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new counsel, who shall then file either an amended PCRA petition or a
Turner/Finley “no merit” letter.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2023
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