Commonwealth v. Willis

OPINION BY

BENDER, J.:

Appellant, Donald A. Willis, appeals pro se from the November 23, 2010 order denying his petition for post-conviction relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. For the reasons that follow, we vacate that order and remand for further proceedings consistent with this opinion.

Appellant entered a guilty plea on May 27, 2009, to the offenses of homicide by vehicle while driving under the influence (DUI), homicide by vehicle, accident involving death or injury while not properly licensed, and DUI. That same day, he was sentenced to 6 to 13 years’ incarceration, followed by a term of 7 years’ probation. Appellant did not file a direct appeal.

However, on February 16, 2010, Appellant filed a timely pro se PCRA petition alleging, inter alia, ineffective assistance of his guilty plea counsel, Ann Faust, Esquire. Ronald H. Elgart, Esquire, was appointed to represent Appellant, yet did not file an amended PCRA petition on Appellant’s behalf. Instead, the record indicates that Attorney Elgart submitted a petition to withdraw and “no-merit” letter pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988), in which he concluded that each of Appellant’s PCRA issues were meritless. Before ruling on Attorney El-gart’s petition to withdraw, the court conducted a PCRA hearing on August 9, 2010, at which Attorney Elgart was present as Appellant’s counsel.

Then, on November 22, 2010, the court held a second PCRA hearing to address issues raised by Appellant in a pro se amended PCRA petition that was filed on July 29, 2010. Once again, prior to the November 22, 2010 hearing, Attorney El-gart submitted a petition to withdraw and Turner/Finley no-merit letter, averring that the claims raised in Appellant’s pro se amended PCRA petition were also merit-less. As before, the PCRA court did not rule on Attorney Elgart’s petition to withdraw prior to conducting the November 22, 2010 PCRA hearing and, accordingly, Attorney Elgart acted as counsel for Appellant during that proceeding.

On November 23, 2010, the PCRA court issued an order denying Appellant’s petition and granting Attorney Elgart permission to withdraw from representing Appellant. At some point on or before December 20, 2010, Appellant sent for filing a timely pro se notice of appeal to the Bucks County Clerk of Courts. However, due to alleged defects in that document, the Clerk of Courts did not file and docket Appellant’s notice of appeal but, instead, returned it to him on December 20, 2010. On January 18, 2011, Appellant sent a second pro se notice of appeal, which the Clerk of Courts deemed acceptable for filing and docketed.

Initially, we must address the facial untimeliness of Appellant’s January 18, 2011 notice of appeal, as it implicates our jurisdiction to review his claims. See Pa. R.A.P. 903(a) (stating that notice of appeal must be filed within 30 days after the entry of the order from which the appeal is taken); see also Krankowski v. O’Neil, 928 A.2d 284, 285 (Pa.Super.2007) (citation omitted) (declaring that “[bjecause the timeliness of an appeal implicates our jurisdiction, we cannot address the merits of an appeal ... before determining whether it was timely”). As noted above, Appellant sent a timely pro se notice of appeal for filing on or before December 20, 2011, but that document was rejected by the Bucks County Clerk of Courts. We conclude, for the reasons stated below, that the Clerk of Courts did not have the authority to decline Appellant’s timely pro se notice of appeal and, thus, we have jurisdiction to review Appellant’s assertions.

In Commonwealth v. Alaouie, 837 A.2d 1190 (Pa.Super.2003), this Court analyzed whether a Prothonotary’s office has the power to reject, as defective, a notice of appeal. Id. at 1192. In concluding that the Prothonotary’s office lacked such authority, we relied on the following language from Nagy v. Best Home Serv., Inc., 829 A.2d 1166 (Pa.Super.2003):

While the Prothonotary must inspect documents that are sent for filing to ensure they are in proper form, the power to reject such documents is limited to notifying the proper party that the document is defective so that the defect may be corrected through amendment or addendum. To hold otherwise would be to confer on the Prothonotary the power to “implement” the Rules governing the form of an appeal and to determine, based upon criteria other than the date they are received, which appeals are timely. Such a power is inconsistent with our [S]u-preme [C]ourt’s pronouncement that a document is filed when the Prothonotary receives it. Once filed, a notice of appeal is, as with an appeal filed in this court, subject to being stricken or dismissed for failing to cure defects on its face.

Alaouie, 837 A.2d at 1192 (emphasis added) (quoting Nagy, 829 A.2d at 1170 (citations omitted)). Despite the fact that Nagy was a civil case, we found our rationale there equally applicable in Alaouie, where the notice of appeal was filed in a criminal case pursuant to Pa.R.Crim.P. 460 (addressing manner of appealing from a summary proceeding).

Likewise, we conclude that the same is true in the instant case — our rationale in Nagy is logically applicable to a notice of appeal sent for filing pursuant to Pa. R.A.P. 902 (governing the manner of appealing to this Court from the entry of a final order). Thus, the Bucks County Clerk of Courts should have time-stamped Appellant’s timely, albeit defective, pro se notice of appeal received on or before December 20, 2010, and then informed Appellant of the errors in that document. In light of this mistake, we will proceed as if Appellant’s timely notice of appeal had been properly filed and docketed on December 20, 2010, thereby giving us jurisdiction to entertain his appeal. Nevertheless, we are unable to address the merits of Appellant’s claims, as our review of the record reveals several critical errors made by the PCRA court and Appellant’s counsel, Attorney Elgart, which compel us to vacate the court’s November 23, 2010 order denying Appellant’s petition and granting Attorney Elgart leave to withdraw.

The first and most egregious error evidenced by the record is the fact that Appellant was effectively denied his right to counsel in his first petition for post-conviction relief.¹ See Pa.R.Crim.P. 904(C) (stating that “when an unrepresented defendant satisfies to 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 relief’). Both Attorney Elgart and the PCRA court are responsible for this misstep.

First, Attorney Elgart violated his duty to continue to represent Appellant until the court ruled on his petitions to withdraw. In Commonwealth v. White, 871 A.2d 1291 (Pa.Super.2005), we stated that “once counsel has entered an appearance on a defendant’s behalf he is obligated to continue representation until the case is concluded or he is granted leave by the court to withdraw his appearance.” Id. at 1294 (citations omitted). Instantly, Attorney Elgart petitioned to withdraw prior to each of Appellant’s PCRA hearings, yet the court chose not to rule on Attorney Elgart’s petitions before conducting those proceedings. Consequently, Attorney El-gart was duty-bound to act as Appellant’s counsel; however, the transcripts of the PCRA hearings are replete with evidence that he was not advocating on Appellant’s behalf. Instead, it appears that he was attempting to prove that Appellant’s claims were meritless, presumably to persuade the court to grant his request to withdraw.

For instance, during his direct examination of Appellant at the August 9, 2010 proceeding, Attorney Elgart’s questioning was more in-line with a cross-examination than an attempt to draw out any merit in his client’s contentions. The following portions of the transcript demonstrate this point:

[Attorney Elgart]: And sir, you’re aware that I have filed what’s known as a no-merit letter in regards to the issues you raised in your initial petition, cor-, rect?

[Appellant]: Yes, sir.

[Attorney Elgart]: Now, sir, can you explain why you believe the [c]ourt was not allowed to impose the sentence it did?

[Appellant]: On count number 2 of homicide by vehicle, the Commonwealth of Pennsylvania requires a cause of death. I was never found guilty of a cause of death, which would make that charge vacate.

[Attorney Elgart]: Sir, you’re aware there is no separate charge called “cause of death?”

[Appellant]: No, there isn’t, but there is no charge that is initially in the law books that states that it is a cause of death, but there are charges which do cause death.

[Attorney Elgart]: That involve a cause of death, correct?

[Appellant]: Yes.

[Attorney Elgart]: What specifically, sir, is your complaint, as this case concluded with a plea of guilty?

[Appellant]: Well, when I pled guilty to these charges I had went with involuntary manslaughter, reckless endangerment of a person, reckless driving, and disregarding traffic lanes were all no pros [sic ], which would give them cause of death to make homicide by vehicle—

[Attorney Elgart]: Sir, you’re aware all these charges were nolle prossed as part of the plea bargain involving in your entering a plea of guilty to the charges?

[Appellant]: And that’s the reason I pled guilty....

N.T. PCRA Hearing, 8/9/10, at 9-11. Moreover, later in the proceeding, Attorney Elgart stated the following to Appellant:

[Attorney Elgart]: Sir, let me explain something, and it’s simply this: This is your evidentiary hearing. This is where you have to establish your issues and the evidence to support those issues. This is it.

Id. at 16-17 (emphasis added).

Additionally, we note that at the August 9, 2010 hearing, Attorney Elgart did not call Appellant’s plea counsel, Attorney Faust, to the stand, despite the fact Appellant was challenging her effectiveness and she was present in the courtroom to testify. Id. at 22. Even more disconcerting is the fact that when the Commonwealth called Attorney Faust as a witness and completed its direct examination, Attorney Elgart declined the opportunity to cross-examine Attorney Faust, stating that he had no questions for her. Id. at 29.

Similarly, the transcript of the November 22, 2010 PCRA hearing supports our conclusion that Attorney Elgart violated his obligation to represent Appellant. During that proceeding, Appellant claimed that he was on medication at the time he entered his plea, which inhibited his ability to understand what was taking place during the guilty plea proceeding. Appellant once again challenged Attorney Faust’s effectiveness as plea counsel, averring that she did not follow up on his claims that he pled guilty due to threats he and his family were receiving. He also averred that Attorney Faust ineffectively made decisions in his case without discussing those choices with him.

Once again, despite Appellant’s allegations of Attorney Faust’s inadequate representation, Attorney Elgart chose not to call Attorney Faust as a witness during the PCRA proceeding. N.T. PCRA Hearing, 11/22/10, at 24. Moreover, when the Commonwealth called Attorney Faust to the stand, Attorney Elgart’s cross-examination consisted of the following, in relevant part:

[Attorney Elgart]: [Attorney] Faust, we touched on it briefly at the last PCRA evidentiary hearing, but again it’s been reiterated today that [Appellant’s] medical condition, the fact he was on medication affected his ability to understand what was going on in the courtroom. Again, did [Appellant] have any problems understanding what you were telling him?

[Attorney Faust]: I have no recollection of him even telling me he was on medication. There was nothing about my encounters with him that would have raised that as a red flag.... And I certainly didn’t’ believe that he was in any way impaired during this — during the time leading up to and during the plea.

[Attorney Elgart]: And just to make it clear, after he talked to you about these threats with his wife, you continued to do an investigation of the case?

[Attorney Faust]: Yes.

[Attorney Elgart]: And after he initially brought that up to you, did he ever bring it up to you again?

[Attorney Faust]: No....

[Attorney Elgart]: Can you state whether or not you made any decisions on [Appellant’s] behalf without consulting with him or without his knowledge? [Attorney Faust]: Absolutely not. [Attorney Elgart]: I have nothing further.

Id. at 30-32.

We conclude that the above-quoted portions of the PCRA hearings reveal that Attorney Elgart was not advocating on Appellant’s behalf but, instead, was attempting to prove to the court that Appellant’s claims were meritless in order to encourage the court to grant his pending petitions to withdraw. Accordingly, Appellant was effectively denied his right to counsel in his first PCRA petition and, consequently, the court’s November 23, 2010 order denying Appellant’s PCRA petition cannot stand. Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 699 (1998) (stating that “[t]he denial of PCRA relief cannot stand unless the petitioner was afforded the assistance of counsel”).²

Before leaving this issue, however, we note that the PCRA court is also at fault for denying Appellant his right to counsel. First, the court failed to reprimand Attorney Elgart, or appoint new counsel, when it became clear that Attorney Elgart was not advocating on Appellant’s behalf. Furthermore, we note our displeasure with the PCRA court’s act of conducting Appellant’s PCRA hearings prior to ruling on Attorney Elgart’s petitions to withdraw. This decision essentially pitted Attorney Elgart and Appellant against one another, as evidenced by the fact that Attorney Elgart advocated against Appellant’s interests at both hearings.

Moreover, their contentious relationship was also on display at the November 22, 2010 PCRA hearing when Appellant orally moved “for a change of appointed counsel,” claiming that he and Attorney Elgart had irreconcilable differences. N.T. PCRA Hearing, 11/22/10, at 3.³ Had the court simply ruled on Attorney Elgart’s petitions prior to conducting the PCRA hearings, then one of two outcomes would have resulted: (1) Attorney Elgart would have been permitted to withdraw, requiring Appellant to either proceed pro se or retain private counsel, or (2) Attorney Elgart would not have been allowed to withdraw and, presumably, he would have represented Appellant’s interests at the PCRA hearings, and not advocated for the court to grant him leave to withdraw. Either of these scenarios would have been preferable to the antagonistic relationship that resulted between Appellant and Attorney Elgart under the present circumstances. Therefore, we suggest that in the future, the PCRA court dispose of petitions to withdraw before conducting hearings on the merits of PCRA hearings.

In sum, the fact that Appellant was effectively denied his right to counsel in his first PCRA petition requires us to vacate the court’s November 28, 2010 order denying his petition. Additionally, we must note two other errors that occurred in the disposition of this case that support our vacation of that order.

First, the PCRA court permitted hybrid representation of Appellant. Despite the fact that Appellant was represented by Attorney Elgart, the court accepted Appellant’s pro se amended PCRA petition, and considered the merits thereof at the November 22, 2010 hearing. Recently, in Commonwealth v. Jette, 23 A.3d 1032 (Pa.2011), our Supreme Court reiterated its “long-standing policy that precludes hybrid representation.” Id. at 1036. While Jette involved a counseled appellant attempting to proceed pro se on appeal, our Supreme Court has also declared that “there is no constitutional right to hybrid representation ... at trial,” Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137, 1139 (1993), or during PCRA proceedings. Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293, 302 (1999) (applying the Ellis rationale prohibiting hybrid representation to PCRA proceedings, stating “[w]e will not require courts considering PCRA petitions to struggle through the pro se filings of defendants when qualified counsel represents those defendants”). Accordingly, the- court erred in permitting such dual representation during the disposition of Appellant’s PCRA petition.

Lastly, the court’s November 23, 2010 order granted Attorney Elgart’s petitions to withdraw despite the fact that those motions and his Turner/Finley no-merit letters were never actually filed. In Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.Super.2003), we made it clear that “[b]efore an attorney can be permitted to withdraw from representing a petitioner under the PCRA, Pennsylvania law requires counsel to file and obtain approval of a ‘no-merit’ letter pursuant to the mandates of Turner/Finley.” Id. at 947 (citation omitted; emphasis added). In this case, the docket does not include the filings of either of Attorney Elgart’s petitions to withdraw or no-merit letters, and those documents are not included in the certified record. Consequently, we consider those petitions as non-existent and conclude that the PCRA court had no authority to grant Attorney Elgart leave to withdraw. See Commonwealth v. Kennedy, 868 A.2d 582, 593 (Pa.Super.2005) (stating that “[a]ny document which is not part of the official certified record is considered to be non-existent”).

Therefore, for the various reasons stated supra, we vacate the court’s November 23, 2010 order and remand for the court to conduct a new PCRA hearing. Prior to that proceeding, we direct the court to appoint new PCRA counsel, as the record makes clear that Attorney Elgart was unwilling to represent Appellant despite his obligation to do so.⁴

Order vacated. Case remanded for further proceedings consistent with this Opinion. Jurisdiction relinquished.

Judge FITZGERALD files a concurring opinion.

1 . We note that while Appellant attempts to challenge Attorney Elgart’s effectiveness in his brief to this Court, he does not expressly argue that he was wholly denied his right to counsel. This omission is irrelevant, however, in light of our holding in Commonwealth v. Stossel, 17 A.3d 1286 (Pa.Super.2011), which states that "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.” Id. at 1290.

2 . Interestingly, Albrecht was a death penalty case that also arose out of Bucks County and involved questions of Attorney Elgart’s effectiveness as counsel. There, Attorney Elgart was appointed to represent Albrecht on appeal from the denial of his PCRA petition. Id. at 698. Albrecht’s prior PCRA counsel David Shenkle, Esquire, had raised 72 claims of error before the PCRA court. Id. However, on appeal, Attorney Elgart expressly waived all but three of those issues, prompting our Supreme Court to conclude that ”[t]he facts of this case raise serious concerns about Attorney Elgart’s compliance with the obligations of his appointment by the PCRA court.” Id. at 699. The Court further stated:

[Attorney] Shenkle, Appellant’s first court-appointed counsel, evidently found some basis in the record to raise dozens of claims of error, yet his successor discarded all but three. Of those three claims, one was thoroughly litigated by his predecessor and had already been decided by the PCRA court. A second was patently frivolous, and the third raised an argument that this [CJourt has consistently rejected, and which was already decided in [Albrecht's] direct appeal. Still more troubling is the abbreviated and perfunctory manner in which [Attorney] El-gart briefed these issues and his cursory explanation of the decision to relieve the court of the burden of deciding the remaining issues raised by [Attorney] Shenkle.

Id. at 699. In light of the “serious concerns” regarding Attorney Elgart's representation raised in Albrecht, and the errors committed by him in the present case, we suggest that the Bucks County trial courts proceed with extreme caution if they choose to continue to appoint Attorney Elgart to represent indigent defendants.

3 . In response, Attorney Elgart reiterated that he had filed a Turner/Finley no-merit letter as he believed all of Appellant’s claims were meritless. Id. at 3-4. The court then denied Appellant’s motion after Attorney Elgart assured the court that he could “elicit from [Appellant] information that he believes is relevant for these proceedings and for [the court's] consideration.” Id. at 4.

4 . Appellant filed with this Court a pro se "Petition for Remand Back to Bucks County Court.” As our disposition of this case results in the relief sought by Appellant — i.e. remand — we deny that petition.