Com. v. Pennington, J.

J-S33011-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACK D. PENNINGTON :
:
Appellant : No. 1537 EDA 2017
Appeal from the PCRA Order Entered April 10, 2017
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0006758-2012
BEFORE: OTT, J., McLAUGHLIN, J., and STEVENS, P.J.E.
MEMORANDUM BY OTT, J.: FILED AUGUST 06, 2018
Jack D. Pennington appeals from the order entered April 10, 2017, in
the Court of Common Pleas of Montgomery County, that dismissed, without a
hearing, his petition seeking relief pursuant to the Pennsylvania Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Pennington seeks
relief from the judgment of sentence to serve a term of 17 to 50 years’
imprisonment, imposed on resentencing, on his drug convictions. In this
appeal, Pennington contends direct appeal/initial PCRA counsel was ineffective
for failing to (1) appeal the trial judge’s decision that denied the motion to
amend the concise statement, (2) move for the trial judge’s recusal on remand
prior to resentencing, (3) file a direct appeal following resentencing, and (4)
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 Former Justice specially assigned to the Superior Court.
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move for the trial judge’s recusal upon filing the PCRA petition.1 Based upon
the following, we affirm.
The Honorable William R. Carpenter has summarized the background of
this case, as follows:
By way of a brief history, on July 22, 2013, a jury convicted
Pennington of three counts of delivery of a controlled substance,
two counts of possession with intent to deliver methamphetamine,
one count of possession with intent to deliver Percocet, five counts
of dealing in unlawful proceeds, four counts of criminal use of a
communications facility and one count of drug paraphernalia.
These convictions were the result of a wiretap investigation
conducted by the Narcotics Enforcement Team of the Montgomery
County Detective Bureau into Pennington’s sale of
methamphetamine and Percocet. At sentencing on October 11,
2013, this Court sentenced Pennington to a term of imprisonment
of 17 to 50 years pursuant to the mandatory minimum sentencing
statute. Pennington appealed.
On December 18, 2014, the Superior Court vacated
Pennington’s sentence pursuant to Alleyne v. U.S., 133 S. Ct.
2151 (2013), and remanded for resentencing. [Commonwealth
v. Pennington, 116 A.3d 691 (Pa. Super. 2014) (unpublished
memorandum), appeal denied, 117 A.3d 1281 (Pa. 2015), appeal
denied, 125 A.3d 776 (Pa. 2015).] On September 16, 2015, this
Court restructured the sentence and Pennington was again
sentenced to an aggregate term of 17 to 50 years’ imprisonment.
Pennington did not appeal.
On October 17, 2016, Pennington filed his first counseled
PCRA petition, at issue in this appeal.1 The Commonwealth filed
an answer to the petition. On January 23, 2017, this Court issued
a pre-dismissal notice pursuant to Pa.R.Crim.P. 907, notifying him
of this Court’s intention to dismiss his petition without a hearing
and of his right to file a response to the 907 notice. Despite a brief
extension of time to do so, no response was filed. On April [10],
2017, a final order was issued. Pennington appealed, and was
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1 Although Pennington raised two other issues in his brief, he indicates those
issues are withdrawn. See Pennington’s Brief at 4, 9.
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directed to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Pennington did so.
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1 The PCRA [petition] is timely. A year from the final
judgment of sentence fell on Sunday, October 16, 2016,
making the filing of this PCRA petition on October 17,
2106 timely.
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PCRA Court Opinion, 7/31/2017, at 1-2.
Relevant to the issues raised in this appeal, we note that following
Pennington’s jury trial, trial counsel filed a notice of appeal and a Pa.R.A.P.
1925(b) statement. Thereafter, direct appeal/initial PCRA counsel entered his
appearance and represented Pennington from the time he filed a motion to
amend the concise statement, which was denied, through direct appeal, and
on resentencing, as well as from the filing of the PCRA petition, through
dismissal of the petition, by order entered April 10, 2017. Present PCRA
counsel filed the notice of appeal from the PCRA court’s dismissal order on
May 9, 2017.
The four issues raised in this appeal challenge the stewardship of direct
appeal/initial PCRA counsel. Initially, we must determine if we are permitted
to address the merits of these claims which were raised for the first time when
present counsel filed a concise statement in the PCRA court in connection with
this appeal.
In its Pa.R.A.P. 1925(a) opinion, the PCRA court did not address any of
these direct appeal/initial PCRA counsel ineffectiveness claims, reasoning that
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the claims were waived for failure to raise them prior to this appeal. The PCRA
court opined:
[I]n this appeal, Pennington raises for the first time issues of
[direct appeal/initial PCRA counsel’s] alleged ineffectiveness.
These claims are waived for failure to raise them prior to this
appeal. … [Direct appeal/initial PCRA counsel] could have
requested this Court to allow him to amend his PCRA petition to
include these claims, but he did not. Therefore, they are waived
on appeal because they were not properly preserved.
PCRA Court Opinion, 7/31/2107, at 7 (citations omitted).
Pennington, however, argues present PCRA counsel did not represent
him until after the PCRA court denied relief and, because direct appeal/initial
PCRA counsel could not allege his own ineffectiveness, the concise statement
filed by present PCRA counsel in this appeal was the first instance where direct
appeal/initial PCRA counsel’s ineffectiveness could be raised. See
Pennington’s Brief at 11. This argument is unavailing.
A similar issue was presented to our Court in Commonwealth v. Ford,
44 A.3d 1190 (Pa. Super. 2012). After Ford was provided an evidentiary
hearing on his PCRA claims, which were denied, his PCRA counsel filed a notice
of appeal one day late. As a result, the appeal was quashed. Thereafter, Ford
filed a petition for allowance of appeal in our Supreme Court, based on PCRA
counsel’s ineffectiveness in filing an untimely appeal. Our Supreme Court
remanded for a determination of the status of counsel and permitted Ford to
appeal nunc pro tunc within 30 days of a determination of counsel’s status.
The PCRA court appointed new counsel, and in the reinstated appeal, new
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counsel filed a Pa.R.A.P. 1925(b) concise statement, alleging PCRA counsel
was ineffective for failing to raise an issue in the PCRA proceeding. A panel of
our Court reviewed precedential decisions of the Pennsylvania Supreme Court
and determined that such claims could not be raised for the first time on
appeal:
We acknowledge that Appellant did raise the ineffectiveness of
PCRA counsel issue in his Pa.R.A.P. 1925(b) statement after the
Supreme Court remanded the matter and new counsel was
appointed for purposes of advancing his appeal nunc pro tunc, i.e.,
at the first opportunity. … Nonetheless, a majority of the Supreme
Court agrees that issues of PCRA counsel effectiveness must be
raised in a serial PCRA petition or in response to a notice of
dismissal before the PCRA court. … Therefore, we hold absent
recognition of a constitutional right to effective collateral
review counsel, claims of PCRA counsel ineffectiveness
cannot be raised for the first time after a notice of appeal
has been taken from the underlying PCRA matter.
Commonwealth v. Ford, 44 A.3d 1190, 1200-1201 (Pa. Super. 2012)
(emphasis supplied).
In Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super. 2014) (en
banc), this Court reaffirmed Ford. More recently, in Commonwealth v.
Smith, 121 A.3d 1049 (Pa. Super. 2015), a panel of this Court opined: “With
respect to the petitioner’s duties, PCRA claims are more civil than criminal in
nature, which places the burden of moving the case forward on the party in
the plaintiff's position, who in this context is the PCRA petitioner.” Id. at 1054.
The Smith Court further stated: “Appellant had an affirmative duty to
preserve his claims. If Appellant wanted to assert claims of ineffective
assistance of PCRA counsel, he should have consulted counsel and/or the court
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to learn the correct procedure.” Id. at 1055. See also Commonwealth v.
Rigg, 84 A.3d 1080, 1085 (Pa. Super. 2014) (“[W]here the new issue is one
concerning PCRA counsel’s representation, a petitioner can preserve the issue
by including that claim in his Rule 907 response or raising the issue while the
PCRA court retains jurisdiction.”).
In light of the foregoing case law, we agree with the PCRA court that
Pennington’s claims of direct appeal/initial PCRA counsel’s ineffectiveness that
were raised for the first time in the Rule 1925(b) statement are not
reviewable.
Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/18
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