Com. v. Singletary, D.

J-S45013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DONALD ANTHONY SINGLETARY :
:
Appellant : No. 2805 EDA 2016
Appeal from the PCRA Order July 20, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0001630-2013,
CP-15-CR-0001778-2013
BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 17, 2017
Appellant, Donald Anthony Singletary, appeals from the order of the
Chester County Court of Common Pleas, which dismissed as untimely his
first petition brought pursuant to the Post Conviction Relief Act (“PCRA”).1
We vacate, remand, and grant counsel’s petition to withdraw.
The relevant facts and procedural history of this case are as follows.
Appellant sold cocaine to a confidential informant on April 4, 2013, April 13,
2013, and April 22, 2013. As a result, police arrested Appellant on April 26,
2013. That same date, police executed a search warrant at Appellant’s
home and recovered, inter alia, 7.95 grams of cocaine and four handguns.
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1
42 Pa.C.S.A. §§ 9541-9546.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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Appellant entered an open guilty plea on January 10, 2014, to one count of
possession with intent to deliver (“PWID”) at docket no. 1630-2013, and to
three counts of PWID at docket no. 1778-2013. The court sentenced
Appellant on June 23, 2014, to an aggregate term of eight (8) to sixteen
(16) years’ imprisonment. Appellant did not seek direct review, and his
judgment of sentence became final on July 23, 2014.
Appellant filed on November 18, 2015, a pro se “Motion to Modify and
Reduce Sentence Nunc Pro Tunc,” which the court correctly treated as
Appellant’s first PCRA petition. The PCRA court on December 17, 2015,
permitted Appellant to proceed in forma pauperis and appointed counsel.
On May 9, 2016, Appellant filed an amended, counseled PCRA petition,
which requested an evidentiary hearing. In the amended petition, Appellant
claimed that: plea counsel was ineffective for failing to file a post-sentence
motion and a direct appeal; and Appellant received an illegal mandatory
minimum sentence under Alleyne v. United States, ___ U.S. ___, 133
S. Ct. 2151, 186 L. Ed. 2d 314 (2013). Notably, the amended petition did not
address the timeliness of Appellant’s PCRA petition. Moreover, counsel did
not file a supporting brief, cite any law in support of the issues raised, or
provide signed certifications of witnesses or attach documents material to
the proffered testimony. See 42 Pa.C.S.A. § 9545(d)(1) (stating “Where a
petitioner requests an evidentiary hearing, the petition shall include a signed
certification as to each intended witness stating the witness’s name,
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address, date of birth and substance of testimony and shall include any
documents material to that witness’s testimony”). The Commonwealth filed
its answer on June 13, 2016. On June 16, 2016, the PCRA court issued
notice of its intent to dismiss Appellant’s petition pursuant to Pa.R.Crim.P.
907. Counsel received the Rule 907 notice but did not respond on
Appellant’s behalf. The PCRA court denied relief on July 20, 2016.
On August 26, 2016, Appellant filed a pro se notice of appeal.2 That
same date, Appellant filed pro se petitions for reconsideration and/or writ of
habeas corpus, to continue in forma pauperis, and for appointment of new
PCRA counsel. In his petition for reconsideration and/or writ of habeas
corpus, Appellant alleged PCRA counsel deprived Appellant of his right to
effective, adequate representation. According to Appellant, counsel did not
provide Appellant with a copy of the amended PCRA petition and the
Commonwealth’s answer. Appellant asked the PCRA court to direct counsel
to serve Appellant with a copy of these documents and to issue another Rule
907 notice to Appellant. The PCRA court forwarded the notice of appeal and
the petitions to counsel on August 29, 2016. On August 30, 2016, the PCRA
court granted Appellant’s request to continue in forma pauperis and denied
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2
Appellant’s pro se notice of appeal is dated August 19, 2016. Under the
prisoner mailbox rule, we deem the appeal timely. See Commonwealth v.
Chambers, 35 A.3d 34 (Pa.Super. 2011), appeal denied, 616 Pa. 625, 46
A.3d 715 (2012) (explaining prisoner mailbox rule provides that document is
considered filed on date pro se prisoner delivers it to prison authorities for
mailing).
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his remaining petitions. That same date, the PCRA court ordered Appellant
to file a concise statement of errors complained of on appeal per Pa.R.A.P.
1925(b). The PCRA court sent the order to counsel, who did not file a
concise statement on Appellant’s behalf.
On March 16, 2017, counsel filed with this Court an appellate brief and
concluded Appellant’s PCRA issues were meritless. Appellant responded pro
se on April 7, 2017. This Court entered a per curiam order on April 21,
2017, directing counsel to file a petition to withdraw from representation
pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988)
and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
Counsel complied on May 5, 2017, and sent a letter to Appellant on June 1,
2017, advising of his right to proceed pro se or with privately retained
counsel.
Counsel raises the following issues on Appellant’s behalf:
WHETHER THE [PCRA] COURT ERRED IN DISMISSING
[APPELLANT’S] POST-CONVICTION RELIEF ACT (PCRA)
PETITION WHEN IT WAS UNTIMELY FILED AND NO
EXCEPTION APPLIED?
WHETHER [APPELLANT] IS PRECLUDED FROM RAISING AN
ALLEYNE CHALLENGE RETROACTIVELY IN THE
PROCEDURAL POSTURE OF A PCRA CLAIM?
(Appellant’s Brief at 3).
As a preliminary matter, Pennsylvania Rule of Criminal Procedure 904
provides, in pertinent part:
Rule 904. Entry of Appearance and Appointment of
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Counsel; In Forma Pauperis
* * *
(C) Except as provided in paragraph (H), when an
unrepresented defendant satisfies the judge that the
defendant is unable to afford or otherwise procure counsel,
the judge shall appoint counsel to represent the defendant
on the defendant’s first petition for post-conviction
collateral relief.
* * *
Pa.R.Crim.P. 904(C). Importantly, “[a]n indigent petitioner is entitled to
appointment of counsel on his first PCRA petition, even where the petition
appears untimely on its face.” Commonwealth v. Perez, 799 A.2d 848,
851 (Pa.Super. 2002) (emphasis added). “In such cases, counsel is
appointed principally to determine whether the petition is indeed untimely,
and if so, whether any exception to the timeliness requirements…applies.”
Id. at 852. See also Pa.R.Crim.P. 904(C) (stating when unrepresented
defendant shows he is unable to afford or procure counsel, court shall
appoint counsel to represent defendant on first PCRA petition). The right to
counsel on an indigent petitioner’s first PCRA petition is not limited to the
mere naming of an attorney. Perez, supra. To have any meaning, Rule
904 requires appointed counsel to provide meaningful representation. Id.
[W]hen appointed counsel fails to amend an inarticulately
drafted pro se [post-conviction] petition, or fails
otherwise to participate meaningfully, this [C]ourt will
conclude that the proceedings were, for all practical
purposes, uncounseled and in violation of the
representation requirement.
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Id. at 852 (emphasis added). “[T]o provide meaningful representation,
appointed counsel must at least address the timeliness of a PCRA petition
and determine whether the petition fits any exception to the PCRA’s
timeliness provision, where the subject petition is untimely on its face.” Id.
at 849. Counsel’s failure to discuss the timeliness issue renders the
representation virtually meaningless and effectively denies an appellant the
right to assistance of counsel. Id. at 853. Where the record fails to
demonstrate “meaningful participation by counsel appointed to represent an
indigent petitioner filing his first petition, [this Court] will remand for
appointment of new counsel.” Id. at 582, (quoting Commonwealth v.
Hampton, 718 A.2d 1250, 1254 (Pa.Super. 1998)). Additionally, “where an
indigent, first-time PCRA petitioner was denied his right to counsel…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). Moreover, this Court has stated:
This right to representation exists throughout the post-
conviction proceedings, including any appeal from
disposition of the petition for post-conviction relief. It is
equally clear that once counsel has entered an appearance
on [an appellant’s] behalf [she] is obligated to continue
representation until the case is concluded or [she] is
granted leave by the court to withdraw [her] appearance.
Commonwealth v. Willis, 29 A.3d 393, 397 (Pa.Super. 2011). See
Commonwealth v. Brown, 836 A.2d 997, 999 (Pa.Super. 2003)
(remanding for appointment of counsel where petitioner was represented by
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court-appointed attorney before PCRA court but was effectively abandoned
by counsel on appeal).
Instantly, the court sentenced Appellant on June 23, 2014. Appellant’s
judgment of sentence became final on July 23, 2014, upon expiration of the
time to file a direct appeal. See Pa.R.A.P. 903(a). Appellant filed a pro se
PCRA petition on November 18, 2015, which was about one year and four
months after his judgment of sentence became final. Therefore, Appellant’s
petition was facially untimely. See 42 Pa.C.S.A. § 9545(b)(1) (stating PCRA
petition, including second or subsequent petition, shall be filed within one
year of date underlying judgment of sentence becomes final).
On December 17, 2015, the PCRA court permitted Appellant to
proceed in forma pauperis and appointed counsel, who subsequently filed an
amended PCRA petition on May 9, 2016. Significantly, the amended PCRA
petition failed to address the timeliness of Appellant’s November 18, 2015
petition and the application of any of the statutory timeliness exceptions at
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). The amended petition also failed to
comply with 42 Pa.C.S.A. § 9545(d)(1). The PCRA court sent counsel Rule
907 notice on June 16, 2016. Counsel did not respond to the Rule 907
notice and/or correct these defects. Thus, the record fails to demonstrate
counsel’s meaningful participation. See Perez, supra.
Moreover, counsel had a continuing obligation to represent Appellant
until the conclusion of this case. See Willis, supra. Notably, counsel did
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not file an appeal on Appellant’s behalf, which prompted Appellant to file a
pro se notice of appeal on August 19, 2016. The PCRA court on August 30,
2016, ordered a Rule 1925(b) statement and sent the order to counsel; yet
she failed to file a Rule 1925(b) statement on Appellant’s behalf. The record
reveals counsel effectively abandoned Appellant on appeal. Therefore, the
best resolution of this case is to vacate and remand for the PCRA court to
appoint new counsel to assist Appellant in his first PCRA petition. See
Brown, supra. Given the disposition of this case and our directive to
appoint new counsel on remand, we grant current counsel leave to
withdraw.
Order vacated; case remanded for further proceedings. Petition to
withdraw as counsel is granted. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2017
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