Com. v. McNeil, O.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OMAR MCNEIL :
:
Appellant : No. 1204 EDA 2021
Appeal from the PCRA Order Entered May 27, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0511831-2005
BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 08, 2022
Omar McNeil (McNeil) appeals from the May 27, 2021 order of the Court
of Common Pleas of Philadelphia County (PCRA court) dismissing his petition
filed pursuant to the Post-Conviction Relief Act (PCRA).1 We reverse the order
and remand for further proceedings.
Only a brief procedural history is necessary to our disposition. In 2006,
McNeil was convicted following a jury trial of first-degree murder, carrying a
firearm without a license and possession of an instrument of crime. 2 On
January 4, 2008, this Court affirmed his judgment of sentence and he did not
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541 et seq.
2 18 Pa.C.S. §§ 2502, 6106 & 907.
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seek further review. See Commonwealth v. McNeil, 3052 EDA 2006, at *7
(Pa. Super. Jan. 4, 2008) (unpublished memorandum).
On August 26, 2019, McNeil filed the instant PCRA petition, his first. He
claimed that after this Court resolved his appeal, he was abandoned by
appellate counsel and no petition for allowance of appeal in the Supreme Court
or PCRA petition was ever filed. Request for Post-Conviction Relief Nunc Pro
Tunc, 8/26/19, at ¶ 4. He requested that his appellate rights be reinstated
“due to a miscarriage of justice so malicious no respectable civilization would
tolerate. And the abandonment of counsel without informing petitioner of
where his case was at, or what to do.”3 Id. at ¶ 6 (cleaned up). He did not
plead that he requested a petition for allowance of appeal in the Supreme
Court or when he learned that his direct appeal had concluded. The petition
also raised claims for substantive relief such as alleged errors in jury selection.
The PCRA court appointed counsel who then filed a Turner/Finley no-
merit letter.4 PCRA counsel concluded that the petition was patently untimely
because McNeil’s judgment of sentence had become final in 2008. Counsel
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3 McNeil additionally pled that various trial errors, primarily concerning jury
selection, were the result of governmental interference under 42 Pa.C.S.
§ 9545(b)(1)(i). See Request for Post-Conviction Relief Nunc Pro Tunc,
8/26/19, at ¶¶ 27-28. He did not plead that government interference excused
his untimely filing.
4Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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contended that no exception to the jurisdictional time-bar applied, stating that
“[n]o such government interference or newly discovered evidence has been
offered to the undersigned, and no relevant, retroactive legislation applies.”
No-Merit Letter, 7/27/20, at 3. Counsel stated that he had “attempted
communication with [McNeil] via written correspondence” but did not state
whether he had successfully reached McNeil. Id. at 1. The letter did not
acknowledge McNeil’s claim that he was abandoned by direct appeal counsel
and had not previously been apprised of the status of his appeal. After
concluding that the petition was untimely, counsel did not address the merits
of any issues McNeil raised in his pro se petition.
The PCRA court issued a notice of its intention to dismiss the petition
without a hearing. McNeil did not file a response and the PCRA court dismissed
the petition. He timely appealed and the PCRA court appointed new counsel
who filed a concise statement of matters complained of on appeal pursuant to
Pa. R.A.P. 1925(b). He argued for the first time that initial PCRA counsel was
ineffective in filing a no-merit letter instead of amending the pro se petition.5
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5 Pursuant to Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021), a
PCRA petitioner may raise ineffectiveness of PCRA counsel “at the first
opportunity to do so, even when on appeal.” The appellate courts may then
address the ineffectiveness claims on the merits or, if necessary, “remand to
the PCRA court for further development of the record and for the PCRA court
to consider such claims as an initial matter.” Id. at 402.
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McNeil contends on appeal that his first appointed PCRA counsel was
ineffective in litigating his petition because he did not amend the petition or
otherwise argue that McNeil had satisfied the newly-discovered facts
exception to the jurisdictional time-bar.6 “To prove counsel ineffective, the
petitioner must show that: (1) his underlying claim is of arguable merit; (2)
counsel had no reasonable basis for his action or inaction; and (3) the
petitioner suffered actual prejudice as a result.” Commonwealth v. Sarvey,
199 A.3d 436, 452 (Pa. Super. 2018). We presume that counsel has rendered
effective assistance. See Commonwealth v. Treiber, 121 A.3d 435, 445
(Pa. 2015). When assessing PCRA counsel’s performance, we have observed
When appointed, counsel’s duty is to either (1) amend the
petitioner’s pro se Petition 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.
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6 “The standard of review of an order dismissing a PCRA petition is whether
that determination is supported by the evidence of record and is free of legal
error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super. 2017).
“[A] PCRA court has discretion to dismiss a PCRA petition without a hearing if
the court is satisfied that there are no genuine issues concerning any material
fact; that the defendant is not entitled to post-conviction collateral relief; and
that no legitimate purpose would be served by further proceedings.”
Commonwealth v. Brown, 161 A.3d 960, 964 (Pa. Super. 2017) (citations
omitted). However, whether a PCRA petition is timely filed is a question of
law over which our standard of review is de novo and our scope of review is
plenary. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013)
(citations omitted).
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Commonwealth v. Cherry, 155 A.3d 1080, 1083 (Pa. Super. 2017)
(citations omitted).
“A PCRA petition, including a second and subsequent petition, shall be
filed within one year of the date the underlying judgment becomes final.”
Commonwealth v. Graves, 197 A.3d 1182, 1185 (Pa. Super. 2018) (citation
omitted); see also 42 Pa.C.S. § 9545(b)(1). “[A] judgment becomes final at
the conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). If an
appellant wishes to pursue further review after his case is disposed of in this
Court, he must file a petition for allowance of appeal in our Supreme Court
within 30 days. See Pa. R.A.P. 1113(A). If no petition for allowance of appeal
is filed, the judgment of sentence becomes final after the 30-day period for
doing so has expired. 42 Pa.C.S. § 9545(b)(3).
McNeil’s sentence became final in 2008 when this Court affirmed his
judgment of sentence and he failed to seek further review. Because he did
not file the instant petition until August 2019, his petition is facially untimely
and he must plead and prove one of the exceptions to the PCRA’s timeliness
requirements: that he was prevented from raising the claim earlier by
government interference; that the claim is based on newly-discovered facts
that could not have been ascertained earlier with due diligence; or that the
claim is predicated on a newly-recognized constitutional right. 42 Pa.C.S.
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§ 9545(b)(1)(i)-(iii). In addition, the petitioner invoking a time-bar exception
must file the petition within one year of the date the claim could have been
presented. 42 Pa.C.S.A. § 9545(b)(2).
McNeil presents a layered ineffectiveness claim, asserting that prior
counsel was ineffective for failing to raise the newly-discovered facts exception
in order to establish he had been abandoned without notice by direct appeal
counsel. 42 Pa.C.S. § 9545(b)(1)(ii). To invoke the newly-discovered facts
exception, “the petitioner must establish only that (1) the facts upon which
the claim was predicated were unknown and (2) they could not have been
ascertained by the exercise of due diligence.” Commonwealth v. Cox, 146
A.3d 221, 227 (Pa. 2016) (internal quotations and citation omitted). Failure
to file a requested petition for allowance of appeal constitutes ineffective
assistance of counsel because it completely deprives an appellant of further
appellate review. Commonwealth v. Williamson, 21 A.3d 236, 241-42 (Pa.
Super. 2011). In addition to being a basis for substantive relief, such failure
can fulfill the newly-discovered facts exception to the PCRA’s time-bar if the
petitioner is unaware that counsel failed to file the petition and exercises due
diligence to ascertain the status of his case. Id.; see Cox, supra.
Here, it is not apparent from prior PCRA counsel’s sparse Turner/Finley
letter that he recognized McNeil’s attempt to claim abandonment by direct
appeal counsel or the application of the newly-discovered facts exception. The
no-merit letter does not address the purported abandonment by direct appeal
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counsel prior to filing a petition for allowance of appeal in the Supreme Court.
Williamson, supra. It merely avers that no newly-discovered evidence “has
been offered to the undersigned” and that counsel “attempted
communication” with McNeil prior to filing the letter. No-Merit Letter, 7/27/20,
at 3, 1. While the initial pro se petition did not properly set forth the elements
of the newly-discovered facts exception, appointed counsel had a duty to
investigate the allegation as set forth in the petition and amend the petition
to raise the exception if applicable. Cherry, supra. Prior PCRA counsel’s no-
merit letter does not adequately establish that he fulfilled this duty. It is not
clear from the letter that he ever spoke to McNeil to ascertain the facts
underlying the claim or that he even recognized McNeil’s attempt to raise this
ineffectiveness claim and time-bar exception in the first instance.
The Commonwealth and the PCRA court contend that PCRA counsel
could not have been ineffective because McNeil’s attempt to raise the newly-
discovered facts exception is meritless. See Commonwealth’s Brief at 6-8;
PCRA Court Opinion, 12/7/21, at 7-9. Based on the allegations in the pro se
petition and the passage of time, they conclude that McNeil would not have
been able to plead that the facts underlying his claim of abandonment were
previously unknown to him and that he exercised due diligence to ascertain
them. These arguments focus on whether McNeil’s initial pro se petition
established the time-bar exception. The proper inquiry, however, is whether
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prior PCRA counsel effectively discharged his duty to amend the petition or
comply with the dictates of Turner and Finley.
While it may be true that McNeil faces an uphill battle in establishing
that he exercised due diligence in the years since his direct appeal concluded,
he is nevertheless entitled to counsel on his first PCRA petition to rectify his
pleading errors and properly develop the claims or to file a more detailed no-
merit letter outlining the specific reasons why the petition fails. Cherry,
supra; Pa.R.Crim.P. 904(c). A pro se petitioner who initially fails to properly
plead his claims may nonetheless present meritorious claims, or at least raise
an issue of fact, when aided by competent counsel. Here, the current record
is inadequate to establish whether initial PCRA counsel correctly discharged
his duty and we must remand for the PCRA court to address these factual
issues in the first instance. Bradley, supra.
Accordingly, we vacate the order dismissing McNeil’s petition and
remand for an evidentiary hearing regarding prior PCRA counsel’s
effectiveness. If the PCRA court determines that prior counsel was ineffective,
it should allow McNeil the opportunity to amend his petition. If it determines
that prior counsel was effective, it should again dismiss the petition and McNeil
will be entitled to file an appeal from that order.
Order vacated. Case remanded for further proceedings in accordance
with this memorandum. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2022
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