Com. v. Schwartz, M.

J-A24012-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL THOMAS SCHWARTZ :
:
Appellant : No. 595 EDA 2022
Appeal from the PCRA Order Entered February 15, 2022
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000336-2016
BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 4, 2023
Appellant, Michael Thomas Schwartz, appeals pro se from the post-
conviction court’s February 15, 2022 order dismissing, as meritless, his first,
timely petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. Due to various errors committed by the PCRA court,
we vacate the order and remand for further proceedings.
This Court has previously summarized the facts underlying Appellant’s
case as follows:
Appellant, along with his co-defendant wife, were accused of
crimes in connection with the sexual abuse of Appellant’s minor
nephews. The Commonwealth gave notice of its intent to offer at
trial evidence of the nephews’ out-of-court statements concerning
the abuse (“Tender Years testimony”) pursuant to 42 Pa.C.S. §
5985.1(b). In pretrial motions, Appellant sought to exclude the
statements, as well as seeking a change of venue. The trial court
denied the change of venue, and, following a hearing, denied the
motion to exclude the Tender Years testimony.
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Appellant proceeded to a non-jury trial in front of the same judge
who ruled on the pretrial motions. At the close of the
Commonwealth’s case, the trial court dismissed some of the
charges. After Appellant presented defense witnesses, the trial
court convicted Appellant of all remaining charges, including, inter
alia, involuntary deviant [sic] sexual intercourse, attempted rape
of a child, and indecent exposure. On October 5, 2017, the trial
court found Appellant to be a[ sexually violent predator (“SVP”)],
and sentenced him [to 149-540 months’ imprisonment].
Commonwealth v. Schwartz, 3575 EDA 2017, 2019 WL 911108, at *1 (Pa.
Super. filed Feb. 22, 2019).
Appellant subsequently filed a direct appeal. On February 22, 2019, this
Court vacated Appellant’s SVP designation and affirmed his judgment of
sentence in all other respects. Id. Appellant did not seek review with our
Supreme Court.
On August 5, 2019, Appellant filed a timely, pro se PCRA petition, his
first. On August 14, 2019, the PCRA court entered an order appointing John
J. Martin, II, Esq., to investigate the claims contained in Appellant’s PCRA
petition and to take such action as deemed appropriate within 90 days.
The docket shows nothing happened for over a year, in contravention of
the PCRA court’s order directing Attorney Martin to take action within 90 days.
Consequently, Appellant sent a letter to the PCRA court on August 31, 2020.
In his correspondence, Appellant explained that he had written a few letters
to Attorney Martin’s office but had received no response. Understandably
confused, Appellant asked the PCRA court to inform him of the status of his
PCRA petition.
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Despite Appellant’s letter, the docket does not reflect that the PCRA
court took any action. Roughly three months later, on November 24, 2020,
Attorney Martin filed a motion to withdraw as counsel. His motion stated the
following:
AND NOW COMES, Movant, John J. Martin[,] II, Esquire, counsel
for [Appellant], and requests leave of this honorable [c]ourt to
withdraw as counsel and in support thereof avers as follows:
1. That John J. Martin[,] II, that Movant [sic] was instructed
by this [c]ourt to investigate [Appellant’s] claims in a Motion
for Post-Conviction Collateral Relief before this [c]ourt in the
above[-]captioned matter of which [Appellant] is a party.
2. That Movant requests to withdraw as counsel because
[Appellant’s] claims have no merit.
WHEREFORE, Movant respectfully requests that this [c]ourt
approve [his] Motion to Withdraw as Counsel in the above matter,
and for any and other such relief as the [c]ourt deems just.
Motion to Withdraw as Counsel, 11/24/20, at 1-2 (unpaginated; capitalization
and emphasis in original). Attorney Martin attached to his motion a certificate
of service reflecting that he mailed a copy of the motion to Appellant.
However, on November 30, 2020, Attorney Martin filed an amended certificate
of service, representing that he served the motion on Appellant by hand
delivery. Based on our thorough review of the record and the docket, no other
documents appear to have been filed with Attorney Martin’s motion to
withdraw.
After several months of inactivity on the docket, Appellant submitted a
letter to the PCRA court on April 23, 2021, explaining that he had just
discovered that Attorney Martin had asked to withdraw as his counsel.
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Appellant conveyed that he did not receive any notice or letters regarding
Attorney Martin’s motion to withdraw. Appellant also stated his objection to
Attorney Martin’s withdrawal.
Over four months later, on September 10, 2021, the PCRA court issued
the following notice and order:
NOTICE
AND NOW, to wit, this 3rd day of September, 2021, [Appellant] is
hereby ADVISED of his right to respond in writing to this proposed
dismissal within twenty (20) days of the date of this [n]otice.
ORDER
AND NOW, to wit, this 3rd day of September, 2021, after an
independent review of the record by this [c]ourt, it is hereby
ORDERED that Attorney John J. Martin II’s Motion to Withdraw as
Counsel is GRANTED.
Order, 9/10/21, at 1 (unpaginated; capitalization in original; emphasis
omitted).
In response, on September 23, 2021, Appellant filed the following letter
with the PCRA court:
I have received notice of an order dated September 3, 2021[,]
granting [Attorney] John J[.] Martin II’s Motion to [W]ithdraw as
Counsel. I am writing because I find it very unfair because I have
not received any letters from [Attorney] Martin of him [sic]
seeking to no longer represent me. Nor have I[,] beside[s] the
letter I just received, []ever received anything from the [c]ourt[]
to inform me of this. The only way I found out about this was
Rockview[ Prison’s] Library staff went online and looked up my
case and saw this pending and I wrote up my objection.
If it is still the [c]ourt[’s] order that [Attorney] Martin no longer is
considered my [c]ounsel, I ask that the [c]ourt[] will re-appoint
me a new attorney to deal with my PCRA [petition].
Notice of Right to Respond, 9/23/21, at 1 (unpaginated).
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Nearly five months after Appellant filed this letter, the PCRA court issued
the following order:
AND NOW, this 15th day of February, 2022, upon PCRA counsel’s
Turner/Finley[1] No[-]Merit Letter[,] this [c]ourt agrees with
PCRA counsel that [Appellant’s] claim lacks legal merit[.] IT IS
HEREBY ORDERED [Appellant] is not entitled to post-conviction
relief effective today.
IT IS FURTHER ORDERED [Appellant] is advised of his right to
respond in writing to this PCRA dismissal within twenty (20) days
of this [o]rder.
IT IS FURTHER ORDERED this [c]ourt’s September 3, 2021 [o]rder
allowing PCRA counsel to withdraw is AFFIRMED.
Order, 2/15/22, at 1 (unpaginated; capitalization in original).
The PCRA court attached to this order an opinion, in which it stated that
Attorney Martin had filed a Motion to Withdraw as Counsel and a no-merit
letter. While we do not see a no-merit letter from Attorney Martin in the
record, the PCRA court determined that, in Attorney Martin’s no-merit letter,
he detailed the nature and extent of his review, listed each issue Appellant
wished to have reviewed, and explained why Appellant’s issues are meritless.
The PCRA court then purported to conduct its own, independent review of the
record and agreed with Attorney Martin that Appellant’s petition was meritless.
Thereafter, on February 28, 2022, Appellant filed a ‘Request to Appeal,’
in which he asked the PCRA court to grant him the right to appeal from the
____________________________________________
1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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court’s February 15, 2022 order.2 In response, on March 14, 2022, the PCRA
court issued an order stating the following:
AND NOW, this 11th day of March, 2022, upon consideration of
[Appellant’s] pro se Motion for Request to Appeal, IT IS HEREBY
ORDERED, ADJUDGED and DECREED that said motion is
GRANTED.
IT IS FURTHER ORDERED [Appellant] shall have thirty (30)
days from the date of this [o]rder … to file an appeal.
Order, 3/14/22, at 1 (emphasis and capitalization in original).
The next day, on March 15, 2022, the PCRA court perplexingly issued
another order, directing Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The PCRA court,
however, apparently neglected to serve Appellant with that order. On April
19, 2022, the PCRA court issued yet another order, in which it recognized that
Appellant may not have been served with its March 15, 2022 order and
therefore directed Appellant to file a Rule 1925(b) statement once again. On
May 9, 2022, Appellant filed his Rule 1925(b) statement. On June 23, 2022,
the PCRA court issued its Rule 1925(a) opinion.3
Appellant raises the following issues for our review:
____________________________________________
2 This ‘Request to Appeal’ was apparently construed as a notice of appeal, as
the docket reflects that it was docketed in this Court at 595 EDA 2022 on
March 10, 2022.
3 On July 18, 2022, this Court dismissed Appellant’s appeal because Appellant
failed to file a brief. Subsequently, Appellant filed both a brief and an
application to reinstate his appeal. This Court accepted Appellant’s brief and
granted his application to reinstate the appeal on August 3, 2022.
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1. Whether the PCRA court erred by dismissing the PCRA petition
with a[n] opinion, order, and notice of intent to dismiss pursuant
to Pa.R.Crim.P. 907?
2. Whether [Appellant] was denied effective assistance of counsel
by PCRA counsel, and did PCRA counsel [err] in his determination
that [Appellant’s] ineffective assistance of counsel claims [are]
without merit?
3. Whether [Appellant] was denied effective assistance of trial
counsel by Nefertiti C. Jordan, Esq., [by] failing to request recusal
of the Honorable Raymond L. Hamill when impropriety of the
judiciary was clear and convincing?
4. Whether [Appellant] was denied effective assistance of trial
counsel from Nefertiti C. Jordan[, Esq.,] when failing to hold a
hearing in accordance with Commonwealth v. Delbridge, 855
A.2d 27 ([Pa.] 2003)?
Appellant’s Brief at 4 (unpaginated; unnecessary capitalization omitted).
Before we consider any of Appellant’s issues, we must address multiple,
troubling errors committed by the PCRA court in handling this matter. Frankly,
we are dismayed by how the proceedings unfolded below.
First, the record does not indicate that Attorney Martin complied with
the requirements of Turner/Finley.4 This Court has previously explained:
Defendants have a general rule-based right to the assistance of
counsel for their first PCRA Petition. Pa.R.Crim.P. 904(C);
Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super.
2009) (en banc) (stating, “a criminal defendant has a right to
representation of counsel for purposes of litigating a first PCRA
petition through the entire appellate process[]”). “The indigent
petitioner’s right to counsel must be honored regardless of the
merits of his underlying claims, even where those claims were
____________________________________________
4 We note that, on appeal, Appellant claims that he was denied effective
assistance of counsel by PCRA counsel, see Appellant’s Brief at 4
(unpaginated), and asserts that PCRA counsel “failed to see that the PCRA
petition had merit and failed to properly investigate the claims.” Id. at 7
(unpaginated).
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previously addressed on direct appeal, so long as the petition in
question is his first.” Commonwealth v. Powell, 787 A.2d 1017,
1019 (Pa. Super. 2001) (citation omitted). “Moreover, once
counsel is appointed, he [or she] must take affirmative steps to
discharge his [or her] duties.” Id.When appointed, counsel’s duty is to either (1) amend the
petitioner’s pro se [p]etition and present the petitioner’s claims in
acceptable legal terms, or (2) certify that the claims lack merit by
complying with the mandates of Turner/Finley. “If appointed
counsel fails to take either of these steps, our courts have not
hesitated to find that the petition was effectively uncounseled.”
Powell, 787 A.2d at 1019 (citation omitted).
Commonwealth v. Cherry, 155 A.3d 1080, 1082-83 (Pa. Super. 2017)
(footnote omitted).
If counsel determines that the petitioner’s claim lacks merit and pursues
the latter step, as Attorney Martin did here, counsel must comply with the
following procedural requirements for withdrawing as counsel:
Counsel petitioning to withdraw from PCRA representation must
proceed … under … Turner, and … Finley, and … must review the
case zealously. Turner/Finley counsel must then submit a “no-
merit” letter to the trial court, or brief on appeal to this 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.
Counsel must also send to the petitioner: (1) a copy of the
“no merit” letter/brief; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the
right to proceed pro se or by new counsel.
***
Where counsel submits a petition and no-merit letter that …
satisfy the technical demands of Turner/Finley, the court
— trial court or this Court — must then conduct its own
review of the merits of the case. If the court agrees with
counsel that the claims are without merit, the court will
permit counsel to withdraw and deny relief.
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Commonwealth v. Muzzy, 141 A.3d 509, 510-11 (Pa. Super. 2016)
(citations omitted). However, “[i]f counsel fails to satisfy the foregoing
technical prerequisites of Turner/Finley, the court will not reach the merits
of the underlying claims but, rather, will merely deny counsel’s request to
withdraw.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.
2007) (citation omitted). “Upon doing so, the court will then take appropriate
steps, such as directing counsel to file a proper Turner/Finley request or an
advocate’s brief.” Id. (citation omitted).
Here, Attorney Martin merely filed a motion to withdraw, opining —
without any elaboration —that Appellant’s claims lack merit. Our review of
the record reveals that Attorney Martin did not submit a no-merit letter to the
PCRA court, in which he detailed the nature and extent of his review of the
case, listed the issues that Appellant wants to have reviewed, and explained
why and how they lacked merit. In addition, it does not appear that Attorney
Martin sent Appellant a copy of the no-merit letter, a copy of his motion to
withdraw, and a statement advising Appellant of his right to proceed pro se or
by new counsel.
Notwithstanding Attorney Martin’s blatant non-compliance with the
requirements of Turner/Finley, the PCRA court permitted him to withdraw
as counsel. This was clearly error.
Second, the PCRA court did not comply with Pa.R.Crim.P. 907(1), when
it issued Appellant notice of its intent to dismiss his petition without an
evidentiary hearing. Rule 907(1) provides:
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Except as provided in Rule 909 for death penalty cases,
(1) the judge shall promptly review the petition, any answer by
the attorney for the Commonwealth, and other matters of record
relating to the defendant’s claim(s). If the judge is satisfied from
this review that there are no genuine issues concerning any
material fact and that the defendant is not entitled to post-
conviction collateral relief, and no purpose would be served by any
further proceedings, the judge shall give notice to the parties
of the intention to dismiss the petition and shall state in
the notice the reasons for the dismissal. The defendant may
respond to the proposed dismissal within 20 days of the date of
the notice. The judge thereafter shall order the petition
dismissed, grant leave to file an amended petition, or direct that
the proceedings continue.
Pa.R.Crim.P. 907(1) (emphasis added).
Here, the PCRA court’s September 10, 2021 order simply stated:
“[Appellant] is hereby ADVISED of his right to respond in writing to this
proposed dismissal within twenty (20) days of the date of this [n]otice.”
Order, 9/10/21, at 1 (unpaginated; capitalization in original). Nowhere in its
order does the PCRA court clearly explain that it intends to dismiss Appellant’s
petition, nor does it state the reasons for the dismissal. This was also clearly
error.
Third, the PCRA court failed to abide by Rule 907(4), when it dismissed
Appellant’s petition in its February 15, 2022 order. In that order, the court
stated: “[U]pon PCRA counsel’s Turner/Finley[ ] No[-]Merit Letter[,] this
[c]ourt agrees with PCRA counsel that [Appellant’s] claim lacks legal merit[.]
IT IS HEREBY ORDERED [Appellant] is not entitled to post-conviction relief
effective today. IT IS FURTHER ORDERED [Appellant] is advised of his right
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to respond in writing to this PCRA dismissal within twenty (20) days of this
[o]rder.” Order, 2/15/22, at 1 (unpaginated; capitalization in original).
Initially, contrary to the PCRA court’s assertion, the record does not
reveal that Attorney Martin filed a no-merit letter pursuant to Turner/Finley.
Moreover, to the extent this order dismisses Appellant’s petition, it does not
comply with Rule 907(4). Rule 907(4) states:
When the petition is dismissed without a hearing, the judge
promptly shall issue an order to that effect and shall advise the
defendant by certified mail, return receipt requested, of the
right to appeal from the final order disposing of the petition
and of the time limits within which the appeal must be filed.
The order shall be filed and served as provided in Rule 114.
Pa.R.Crim.P. 907(4) (emphasis added).
The PCRA court’s order fails to advise Appellant of his right to appeal
and the time limits within which the appeal must be filed, in accordance with
Rule 907(4). Instead, the order inappropriately permits Appellant to file a
response in writing to the dismissal of his petition within 20 days.5 Once
again, this was clearly error.
Fourth, because the PCRA court failed to advise Appellant of his appeal
rights, Appellant filed a ‘Request to Appeal,’ asking the PCRA court to grant
him the right to appeal from the court’s February 15, 2022 order. While
Appellant’s filing a request to appeal was unnecessary, the PCRA court
nevertheless granted this request, giving Appellant 30 days in which to file his
____________________________________________
5In advising Appellant of his right to respond within 20 days, we believe the
PCRA court confused the requirements of Rule 907(4) with the mandates of
Rule 907(1).
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notice of appeal.6 Despite giving Appellant 30 days to file a notice of appeal,
on the next day, the PCRA court puzzlingly directed Appellant to file a Rule
1925(b) concise statement. However, to the extent the PCRA court permitted
Appellant to file a notice of appeal within 30 days, Appellant should not have
been ordered to file a Rule 1925(b) concise statement until after that notice
of appeal was filed. See Pa.R.A.P. 1925(b) (“If the judge entering the order
giving rise to the notice of appeal … desires clarification of the errors
complained of on appeal, the judge may enter an order directing the appellant
to file of record in the trial court and serve on the judge a concise statement
of the errors complained of on appeal….”). These actions by the PCRA court
were likewise error.
Given the plethora of mistakes made by the PCRA court, we conclude
that a breakdown in the operations of the court has occurred. As a result, we
vacate the PCRA court’s February 15, 2022 order dismissing Appellant’s
petition and remand this matter for the appointment of new PCRA counsel.
New counsel should either file an amended PCRA petition on Appellant’s behalf
or comply with the Turner/Finley procedure set forth supra. If the PCRA
court subsequently intends to dismiss Appellant’s petition without a hearing,
it must issue a notice of its intent to dismiss the petition in accordance with
____________________________________________
6 Appellant’s request to appeal was unnecessary because “[a]n order granting,
denying, dismissing, or otherwise finally disposing of a petition for post-
conviction collateral relief shall constitute a final order for purposes of appeal.”
Pa.R.A.P. 341(f)(1); Pa.R.Crim.P. 910 (same). See also Pa.R.A.P. 341(a)
(“[A]n appeal may be taken as of right from any final order of a government
unit or trial court.”).
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Rule 907(1), explaining the reasons for the proposed dismissal and notifying
Appellant that he may respond to the proposed dismissal within 20 days of
the date of the notice. In the event the PCRA court ultimately dismisses
Appellant’s petition, it must advise Appellant of his appellate rights and the
correct time limits for filing an appeal, pursuant to Rule 907(4).7
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/04/2023
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7 Appellant asks us in his brief to permit him to proceed in forma pauperis
(“IFP”) on appeal. See Appellant’s Brief at 19 (“[Appellant] is currently at
S.C.I. Dallas, a pro se litigant who is without the financial means to cover the
coast [sic] associated with litigation for the above[-]captioned matter.
[Appellant] respectfully prays this Honorable Court to proceed [IFP] pursuant
to [Pa.R.Crim.P.] 904(g).”) (unpaginated). However, the docket indicates that
he is already proceeding IFP on appeal. See Superior Court Docket, 3/7/22
(stating that “Notice of Appeal IFP” was docketed).
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