Com. v. Dukes, S.

J-S37013-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHANNON DUKES :
:
Appellant : No. 1917 EDA 2019
Appeal from the PCRA Order Entered May 15, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013075-2014
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED JUNE 15, 2022
Shannon Dukes appeals from the order entered in the Philadelphia
County Court of Common Pleas on May 15, 2019, dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-
9546, without a hearing. After remand, and pursuant to our directive, PCRA
counsel has filed a petition to withdraw as counsel, along with an Anders1
brief in which he concludes there are no non-frivolous issues to raise on
appeal.2 For the reasons discussed below, we find the PCRA court properly
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* Former Justice specially assigned to the Superior Court.
1 Anders v. California, 386 U.S. 738 (1967).
2We note that PCRA counsel mistakenly labeled his brief an Anders brief.
Anders applies only when counsel seeks to withdraw from representation on
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denied Dukes relief and affirm. We further grant counsel permission to
withdraw.
On November 16, 2015, following a jury trial, Dukes was found guilty of
robbery, possession of an instrument of crime, and three violations of the
Uniform Firearms Act, stemming from an attempted robbery in North
Philadelphia.
On May 9, 2016, the trial court sentenced Dukes to an aggregate term
of seventeen to thirty-four years’ incarceration. We affirmed Dukes’ judgment
of sentence on direct appeal. See Commonwealth v. Shannon Dukes, 1785
EDA 2016 (Pa. Super., filed March 27, 2018) (unpublished memorandum).
Dukes did not seek further review with the Pennsylvania Supreme Court.
On September 17, 2018, Dukes filed a pro se PCRA petition, claiming
trial counsel was ineffective for waiving his right to be present at two pretrial
hearings. PCRA counsel was appointed, but did not file an amended petition.
Instead, on April 17, 2019, counsel filed a Finley no-merit letter, along with
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direct appeal. When counsel seeks to withdraw from representation on
collateral appeal, as here, Turner and Finley apply. See Commonwealth v.
Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011) (citing Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213(Pa. Super. 1988) (en banc)). On its own, counsel’s mistake is not fatal to his
application to withdraw, though, as we have held that “because an Anders
brief provides greater protection to a defendant, this Court may accept an
Anders brief in lieu of a Turner/Finley letter.” Id. (citation omitted).
Therefore, our practice in these situations is to accept counsel's Anders brief
and evaluate whether it substantially satisfies Turner/Finley criteria. See id.
at 819.
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a petition to withdraw as counsel. Counsel stated in the no-merit letter that
the petition was untimely filed, Dukes failed to invoke an exception to the
PCRA time-bar, and the issues raised in the petition were without merit. On
the same date, the PCRA court issued notice of its intent to dismiss the petition
without a hearing pursuant to Pa.R.Crim.P. 907, based on counsel’s Finley
letter, and its own conclusion that the issues raised in the petition were
without merit.
On May 20, 2019, the PCRA court entered an order dismissing Dukes’s
PCRA petition, stating the issues raised in the petition were without merit, and
the petition was untimely filed without pleading an exception to the PCRA
time-bar.3 On June 5, 2019, this timely pro se appeal followed.4
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3 The PCRA court fails to acknowledge an error in its order dismissing the
petition. In its opinion on appeal, the PCRA court states “PCRA counsel’s Finley
letter incorrectly opines that appellant’s PCRA petition was untimely filed.”
PCRA Court Opinion, 9/29/20, at 2. However, as stated above, the PCRA court
itself relied on this incorrect assertion in its order dismissing the PCRA petition.
We agree with the court’s opinion on appeal: the petition was not untimely.
Dukes’ judgment of sentence became final on April 27, 2018, 30 days after
this Court affirmed his judgment of sentence. Therefore, Dukes had until April
27, 2019, to timely file a PCRA petition in this matter. His petition - filed on
September 17, 2018 - was well within the one-year timeframe allowed.
4 Dukes was still represented by PCRA counsel when he filed the pro se notice
of appeal. Generally, hybrid representation is forbidden under Pennsylvania
law. See Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super.
2016). Therefore, pro se documents filed with a court while the filer is
represented by counsel are typically rejected as legal nullities. See id.However, pro se notices of appeal are an exception to this general rule. See
id. at 624. Accordingly, Dukes’ pro se notice of appeal was appropriately filed
and procured our jurisdiction over his appeal.
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For reasons that are unclear from the record, well over a year then
passed without any action taken on Dukes’s appeal. On September 29, 2020,
the PCRA court filed its opinion pursuant to Pa.R.Crim.P. 1925(b). 5
On November 6, 2020, with his appeal still pending, Dukes filed a pro
se motion with our Court, asking “for permission to file an explanation as to
why his pending appeal should not be quashed.” In the filing, Dukes stated
that counsel would not file an appellate brief on his behalf because she
believed the PCRA court had removed her as counsel. However, Dukes
explained that based on a letter sent from our prothonotary on October 26,
2020, to Dukes, she was still shown as counsel of record on the appeal docket
sheet. This filing was forwarded to counsel pursuant to Pa.R.A.P. 3304. See
Commonwealth v. Jette, 23 A.3d 1032, 1041 (Pa. 2011) (“[O]ur rules of
appellate procedure provide that whenever a defendant is represented by an
attorney and the defendant files a pro se motion with the court, the filing will
not be docketed and will be forwarded to counsel for his consideration.”).
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5 We note there are numerous irregularities in the PCRA court’s opinion. First,
the court states a hearing was held on the PCRA petition on May 15, 2019,
that was attended by PCRA counsel. There is no record evidence of a hearing
on this date, and it appears undisputed from the record that the petition was
dismissed without a hearing. Next, the PCRA court states it granted counsel
leave to withdraw. Again, the certified record does not contain any order
granting the motion to withdraw. Finally, as noted above, the court fails to
acknowledge its own error in the order dismissing the petition as untimely
filed.
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Interestingly, counsel neither sought withdrawal in this Court or filed a brief
for Dukes.
On December 7, 2020, finding counsel had failed to file a brief on
Dukes’s behalf, we remanded to the PCRA court for 30 days to determine
whether counsel had abandoned Dukes or for counsel to take further action
as required to protect Dukes’ right to appeal. On April 21, 2021, the PCRA
court appointed new counsel.6 After multiple continuances, current PCRA
counsel filed an Anders brief with this Court.
While we found counsel substantially complied with the briefing
requirements of Turner/Finley, we discovered counsel failed to file a
contemporaneous application to withdraw from representation and therefore
there was no evidence that he had advised Dukes of his rights going forward.
Accordingly, we directed counsel to either file an advocate’s brief or a petition
to withdraw that met the requirements pursuant to Turner/Finley.
Counsel has since filed an application to withdraw as counsel and an
accompanying Anders brief. Before any substantive analysis, we must again
examine whether current PCRA counsel has met the procedural requirements
for withdrawing as counsel.
Where, as here, counsel for a PCRA appellant files an Anders brief
and an application to withdraw, we first examine whether
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6 Despite this new appointment of counsel, there was no record evidence that
prior PCRA counsel was ever formally relieved of her duties by the PCRA court.
To clear up any inconsistencies in the record, we granted former PCRA counsel
leave to withdraw in our previous memorandum.
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counsel's brief substantially complies with Turner/Finley
standards. A Turner/Finley brief must: (1) detail the nature and
extent of counsel's review of the case; (2) list each issue the
petitioner wishes to have reviewed; and (3) explain counsel's
reasoning for concluding that the petitioner's issues are meritless.
Substantial compliance with these requirements is sufficient.
…
Next, PCRA counsel must send a copy of her brief to the PCRA
appellant, along with a copy of her petition to withdraw, and
inform him of his right to proceed pro se or to retain new counsel.
In conjunction with counsel's request to withdraw, it is important
to inform the PCRA appellant of his right to proceed pro se and
raise additional points for our review before this Court examines
counsel's request to withdraw and the merits of the case. Although
a party may not typically proceed pro se while represented by
counsel, there is an exception if appellate counsel has filed a
Turner/Finley brief, because that filing signifies that the PCRA
appellant is effectively without counsel. Where an appellant has
not been apprised of his right to proceed pro se following the filing
of a Turner/Finley brief, the notice is defective.
Commonwealth v. Gordon, 237 A.3d 492 (Pa. Super. 2020) (citations
omitted).
We find counsel has filed a proper application to withdraw as counsel
and substantially complied with the requirements of Turner, Finley, and
Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006).7 Dukes has not
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7 Of note, while we find counsel has “substantially complied” with the
Turner/Finley requirements, we find counsel’s poorly drafted letter to Dukes
advising him of his rights somewhat troubling, especially considering this is
counsel’s second attempt at a compliant withdrawal. Counsel states in his
letter to Dukes that he has filed a brief “stating I do not believe in my legal
opinion your case lacks merit.” Motion to Withdraw, filed 2/4/2022, at
Exhibits. Taken literally, this would indicate to Dukes that his case does in fact
have merit. However, since counsel contemporaneously supplied Dukes with
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filed a response as of this date. We therefore turn to our own independent
review of the record to determine if we agree with counsel’s conclusion that
Dukes’s PCRA petition was meritless.
All of Dukes’s claims raised allegations of ineffectiveness of counsel. As
such, he was required to plead and prove:
ineffective assistance of counsel which, in the circumstances of
the particular case, so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken
place … Appellant must demonstrate: (1) the underlying claim is
of arguable merit; (2) that counsel had no reasonable strategic
basis for his or her action or inaction; and (3) but for the errors
and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different.
Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)
(citations omitted).
Moreover, “[w]e presume counsel is effective and place upon Appellant
the burden of proving otherwise.” Commonwealth v. Springer, 961 A.2d
1262, 1267-1268 (Pa. Super. 2008) (citation omitted). This Court will grant
relief only if an appellant satisfies each of the three prongs necessary to prove
counsel ineffective. See Commonwealth v. Natividad, 938 A.2d 310, 321-
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his Anders brief, which would clarify that he believes Dukes’s issues have no
merit, we do not find this unfortunate wording is fatal to his application to
withdraw. We do caution counsel to be more careful in the future. Further,
while the brief letter does inform Dukes that he has an immediate right to
proceed pro se or with privately retained counsel, the letter makes no mention
of any reasons for finding his claims without merit, nor informs Dukes that he
may raise additional issues on his own. While neither is explicitly required by
our caselaw, we find counsel has simply done the bare minimum in order for
us to proceed with our review.
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22 (Pa. 2007) (citation omitted). Thus, we may deny any ineffectiveness claim
if “the petitioner's evidence fails to meet a single one of these prongs.” Id. at
321 (citation omitted).
In his pro se PCRA petition, Dukes first claims trial counsel was
ineffective for waiving his right to be present at a suppression hearing. 8 The
suppression hearing was held on the morning of November 10, 2015, prior to
trial starting later that day. It is clear from a review of the record that Dukes
was in fact present at the suppression hearing, evidenced by the following
exchange:
[DISTRICT ATTORNEY]: And do you see one of the other two
males that you had stopped before today?
[WITNESS]: Yes, I do. He’s wearing the blue shirt.
[DISTRICT ATTORNEY]: Identification of the defendant, Shannon
Dukes, at the bar of the Court for the record.
N.T., Motion Hearing, 11/10/2015, at 11. Therefore, his underlying claim lacks
arguable merit. Further, even if Dukes had been absent from the suppression
hearing, he failed to present any support for how he was prejudiced by his
alleged absence from the hearing. Accordingly, Dukes’s first issue is without
merit.
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8 In his statement of the first issue, Dukes incorrectly indicates the
suppression hearing was held on February 11, 2015. The record shows that
while the suppression motion itself was filed on February 11, 2015, the
suppression hearing was not held until November 2015. In his explanation of
the issue, Dukes corrects the original error, and states that the suppression
hearing was actually held on November 10, 2015.
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Next, Dukes argues trial counsel was ineffective for waiving his right to
be present at a prior bad acts motion hearing held on June 8, 2015. The record
shows that counsel did waive Dukes’s right to be present at this hearing. See
N.T., Motion Volume 1, 6/8/2015, at 4.
Article I, § 9 of the Pennsylvania Constitution and Pennsylvania
Rule of Criminal Procedure 602 guarantee the right of an accused
to be present in the courtroom at every stage of a criminal trial.
Such right, however, is not absolute. A defendant has a due
process right to be present in his own person whenever his
presence has a relation, reasonably substantial, to the fullness of
his opportunity to defend against the charge. Accordingly, the
defendant is guaranteed the right to be present at any stage of
the criminal proceeding that is critical to its outcome if his
presence would contribute to the fairness of the procedure.
Commonwealth v. Tharp, 101 A.3d 736, 762 (Pa. 2014) (citations and
internal quotation marks omitted). Further,
It is widely recognized that a defendant's presence during all
stages of the trial does not extend to purely procedural matters
preparatory to the trial, particularly where no prejudice has been
shown. Additionally, courts generally hold that [a] defendant's
presence is required when testimony of witnesses is received, but
under certain circumstances when matters of law are being argued
before the court, such as preliminary pre-trial motions which do
not affect substantial rights of the defendant, defendant's
attendance is not required.
Commonwealth v. McLaurin, 437 A.2d 440, 443 (Pa. Super. 1981)
(citations omitted).
Here, Dukes failed to present any support for how he was prejudiced by
his absence from the prior bad acts motion hearing. Importantly, no witnesses
testified at the hearing. The hearing consisted solely of legal argument by
counsel for both sides. Further, the record shows that the Commonwealth’s
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motion to admit prior bad acts evidence was denied. Therefore, Dukes can not
show he was prejudiced by his absence as his counsel prevailed in arguing the
motion should be denied. Accordingly, Dukes’s second issue is also without
merit.
Finally, Dukes claims his original PCRA counsel was ineffective for failing
to send him a copy of counsel’s Finley no-merit letter, preventing him from
preserving issues for appeal.
Prior PCRA counsel’s Finley letter states that Dukes was being
forwarded a copy of the letter contemporaneously with its filing with the PCRA
court. Further, the Finley letter included an attachment containing counsel’s
letter written to Dukes which was appropriately addressed to his prison
address.
Even if we assume, arguendo, that Dukes somehow did not initially
receive the Finley letter, Dukes received the PCRA court’s Rule 907 notice
which referenced the Finley letter, and there is no indication in the record of
any attempt by Dukes to request a copy of the Finley letter after receiving
the Rule 907 notice.
Finally, Dukes has identified no issues that were not raised in his PCRA
petition. The PCRA court addressed all of the issues in Dukes’s petition in its
opinion. See PCRA Court Opinion, 9/29/2020, at 4-7. Similarly, we have
reviewed all of those issues in the context of counsel’s petition to withdraw
and found them meritless. Under these circumstances, Dukes has failed to
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show he was prejudiced by any failure of original PCRA counsel to send him a
copy of counsel’s Finley letter.
For the reasons set forth above, we conclude that Dukes is entitled to
no relief. The record supports the PCRA court's determinations, and we agree
with counsel that Dukes’s claims lack merit. Moreover, having conducted an
independent review of the record in light of the petition to withdraw, we agree
that the PCRA petition is meritless.
Accordingly, for the reasons discussed above, we affirm the PCRA court’s
dismissal of Dukes’s PCRA petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2022
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