Com. v. McCollum, S., Jr.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
STEVE RICHARD MCCOLLUM, JR., :
:
Appellant : No. 1889 MDA 2019
Appeal from the PCRA Order Entered April 3, 2019
in the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0005177-2011
BEFORE: KUNSELMAN, J., McLAUGHLIN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 29, 2020
Steve Richard McCollum, Jr., (Appellant) appeals pro se from the April
3, 2019 order dismissing his petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.1 Upon review, we quash.
We provide the following background. On December 18, 2012,
Appellant was convicted by a jury of attempted murder, aggravated assault,
possession of a firearm prohibited, and carrying a firearm without a license,
and sentenced to an aggregate term of 20 to 40 years of incarceration.2
Appellant filed post-sentence motions, which the trial court denied. On direct
1 Appellant also purports to appeal from the August 23, 2019 order
dismissing his January 4, 2019 PCRA petition. As we explain infra, that
petition and order are nullities.
2 This Court previously provided a detailed recitation of the conduct
underlying the charges. See Commonwealth v. McCollum, 97 A.3d 806(Pa. Super. 2014) (unpublished memorandum at 1-3).
*Retired Senior Judge assigned to the Superior Court.
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appeal, this Court affirmed Appellant’s judgment of sentence, and on July
30, 2014, our Supreme Court denied his petition for allowance of appeal.
McCollum, 97 A.3d 806, appeal denied, 96 A.3d 1026 (Pa. 2014).
On June 24, 2015, Appellant timely filed pro se his first PCRA petition.
Of relevance to the instant appeal, Appellant claimed, inter alia, that trial
counsel rendered ineffective assistance by advising him not to testify.
Counsel was appointed and ultimately filed a Turner/Finley3 no-merit letter
and accompanying request to withdraw.
On December 7, 2016, the PCRA court permitted counsel to
withdraw and issued its Pa.R.Crim.P. 907 notice of intent to
dismiss Appellant’s petition, advising Appellant that he had 20
days to respond. Appellant did not receive the notice to dismiss
until December 29, 2016 - beyond the allotted 20–day response
window. On January 1, 2017, Appellant filed a motion for
extension of time to file objections to the Rule 907 notice. On
January 11, 2017, the PCRA court dismissed Appellant’s PCRA
petition without a hearing. On January 17, 2017, the court
issued an order denying Appellant’s request for an extension to
respond to its Rule 907 notice, noting that “Petitioner was given
20 days from [December 7, 2016] to file a response [and] [a]s
neither a response nor a request for extension was received
within that timeframe, th[e PCRA c]ourt dismissed the PCRA
Petition by Order dated January 11, 2017.” Order, 1/19/[20]17.
Commonwealth v. McCollum, 183 A.3d 1041 (Pa. Super. 2018)
(unpublished memorandum at 3-4) (party designations altered; footnote
omitted).
3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Appellant pro se filed a notice of appeal to this Court. Upon review, we
reversed the order dismissing Appellant’s PCRA petition, finding that
we cannot deem Appellant’s decision not to testify as either
knowing or intelligent where counsel allegedly advised Appellant
not to testify based on the incorrect belief that the
Commonwealth would impeach him on his prior non-crimen
falsi convictions. Additionally, we recognize that the PCRA court
applied the incorrect standard in assessing this claim. The proper
inquiry is not whether Appellant’s testimony would have changed
the outcome of his trial, but, rather, whether the result of the
waiver proceeding would have been different absent counsel’s
ineffectiveness.
Because Appellant’s petition was dismissed without a hearing,
we do not have the benefit of counsel’s testimony explaining
why, in fact, he advised Appellant not to testify. Under such
circumstances, the PCRA court erred in dismissing Appellant’s
petition without a hearing where there was a genuine issue of
material fact that may entitle him to relief. 7
______
7 Having concluded that the court improperly dismissed
Appellant’s petition without a hearing, we also find that
dismissing his petition without first giving Appellant the
opportunity to respond to the court’s Rule 907 notice was
erroneous and that permitting counsel to withdraw
pursuant to Turner/Finley was likewise improper.
Accordingly, we remand for the appointment of PCRA
counsel, see Pa.R.Crim.P. 904(C), and a hearing on Appellant’s
claim. If, after the hearing, the PCRA court concludes that
counsel’s decision was not reasonable and that he was
ineffective in advising Appellant not to testify at trial, a new trial
shall be ordered. If, however, the PCRA court concludes that
counsel was not ineffective for advising Appellant to not testify,
then it shall dismiss his petition.
Id. (unpublished memorandum at 7-9) (party designations altered; some
citations and footnotes omitted). We found Appellant’s remaining PCRA
claims meritless. Id. (unpublished memorandum at 9 n.9).
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On remand, in accordance with our directive, the PCRA court
appointed counsel to represent Appellant at a scheduled PCRA hearing solely
on the question of whether trial counsel rendered ineffective assistance in
advising Appellant not to testify.4 The hearing was held on November 18,
2018, during which the PCRA court heard testimony from Appellant and trial
counsel.
In the meantime, on November 16, 2018, counsel filed a motion to
amend Appellant’s PCRA petition to include a claim of after-discovered
evidence. On December 5, 2018, the PCRA court granted the motion, and on
January 4, 2019, Appellant filed an amended PCRA petition.
On April 3, 2019, in accordance with our limited remand, the PCRA
court dismissed Appellant’s June 24, 2015 PCRA petition because it found
counsel was not ineffective in advising Appellant to refrain from testifying.
PCRA Court Order, 4/3/2019. Within the order, the PCRA court advised
Appellant that he had the right to appeal within 30 days, and clarified that
the order did not dispose of the January 4, 2019 amended PCRA petition. Id.at 2 & n.2 (unnumbered). Appellant did not file a notice of appeal from that
order.
On June 18, 2019, the PCRA court held a hearing on the after-
discovered evidence claim raised in Appellant’s amended PCRA petition. On
4 Appellant retained private counsel in September 2018.
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August 23, 2019, the PCRA court dismissed that petition and advised
Appellant that he had 30 days to appeal from that order.
On September 23, 2019, Appellant pro se filed a notice of appeal from
the April 3, 2019 and August 23, 2019 orders.5 Because Appellant
erroneously filed his notice with this Court, we forwarded it to the PCRA
court for docketing. See Pa. R.A.P. 905(a)(4) (explaining the procedure for a
notice of appeal mistakenly filed in an appellate court). Instead of docketing
the notice of appeal, the PCRA court forwarded it to counsel. On September
24, 2019, counsel filed a motion to withdraw and request for a hearing
pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). On
October 25, 2019, following a video-conference hearing, the PCRA court
found Appellant’s decision to proceed pro se voluntary, knowing, and
intelligent, and granted counsel’s motion to withdraw.
In November 2019, Appellant inquired with the PCRA court about the
status of his appeal. In response, the PCRA court reinstated Appellant’s
PCRA appeal rights nunc pro tunc. PCRA Court Order, 11/15/2019. Despite
this order for Appellant to file a new notice of appeal, the PCRA court then
5 While “pro se filings submitted by counseled defendants are generally
treated as legal nullities[,]” Commonwealth v. Muhammed, 219 A.3d
1207, 1210 (Pa. Super. 2019) (citation omitted), this Court must docket pro
se notices of appeal, even when the defendant is represented by counsel.
Commonwealth v. Williams, 151 A.3d 621, 624 (Pa. Super. 2016).
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docketed the September 23, 2019 notice, which was ultimately docketed in
this Court at the instant appeal.6
Appellant filed a second notice of appeal from the April 3, 2019 and
August 23, 2019 orders in response to the PCRA court’s November 15, 2019
order. The PCRA court docketed that notice of appeal on December 5, 2019,
and it was docketed in this Court at No. 1963 MDA 2019. Thereafter, this
Court issued a per curiam order directing Appellant to show cause why the
appeal should not be quashed as, inter alia, duplicative of the instant appeal.
Appellant filed a response, and on March 5, 2020, this Court dismissed the
appeal at No. 1963 MDA 2019 as duplicative of the instant appeal.
Regarding the instant appeal, this Court issued a per curiam order
directing Appellant to show cause why the appeal should not be quashed as
untimely filed and filed in violation of Pa.R.A.P. 341.7 Appellant responded,
and this Court discharged the rule to show cause and deferred the issues to
the merits panel for disposition. On appeal, Appellant challenges the PCRA
court’s dismissal of (1) his ineffective assistance of counsel claim on remand,
6 Appellant complied with Pa.R.A.P. 1925(b). In lieu of filing a Pa.R.A.P.
1925(a) opinion, the PCRA court referred us to its August 23, 2019 opinion.
7 “‘Where ... one or more orders resolves issues arising on more than one
docket or relating to more than one judgment, separate notices of appeals
must be filed.’ Pa.R.A.P. 341, Official Note.” Commonwealth v. Walker,
185 A.3d 969, 976 (Pa. 2018) (holding that in future cases, pursuant to the
Official Note to Rule 341, separate notices of appeal must be filed and failure
to do so will result in quashal).
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and (2) his after-discovered evidence claim set forth in the amended
petition.
At the outset, we note that our review is limited by our 2018 remand.
In that regard, we are guided by our Supreme Court’s decision in
Commonwealth v. Sepulveda, 144 A.3d 1270 (Pa. 2016).
Rule 905(A) gives the PCRA court discretion to “grant leave to
amend or withdraw a petition for [PCRA] relief at any time,” and
states that “[a]mendment shall be freely allowed to achieve
substantial justice.” Pa.R.Crim.P. 905(A). Rule 905(A) was
created “to provide PCRA petitioners with a legitimate
opportunity to present their claims to the PCRA court in a
manner sufficient to avoid dismissal due to a correctable defect
in claim pleading or presentation.” Commonwealth v. McGill,
832 A.2d 1014, 1024 (Pa. 2003) (citing Commonwealth v.
Williams, 782 A.2d 517, 526-27 (Pa. 2001)).
Once the PCRA court renders a decision on a PCRA petition,
however, that matter is concluded before the PCRA court, having
been fully adjudicated by that court, and the order generated is
a final order that is appealable by the losing party. See
Pa.R.Crim.P. 910 (“An 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.”); Commonwealth v. Bryant, 780 A.2d 646, 648 (Pa.
2001). Although liberal amendment of a PCRA petition is, in
some circumstances, permitted beyond the one-year timeframe,
Rule 905(A) cannot be construed as permitting the rejuvenation
of a PCRA petition that has been fully adjudicated by the PCRA
court. We have consistently held that in the absence of
permission from this Court, a PCRA petitioner is not entitled to
raise new claims following our remand for further PCRA
proceedings.
Our mandate in [the prior appeal] did not bestow upon the PCRA
court jurisdiction over the entirety of the PCRA petition.
Following our complete review on appeal from the denial of PCRA
relief, we winnowed down the issues raised by Sepulveda to one
identifiable subpart of one claim, which we ordered the PCRA
court to consider in “proceedings upon limited remand.”
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Commonwealth v. Sepulveda, 55 A.3d 1108, 1151 (Pa. 2012)
(emphasis added). Absent an order specifying otherwise, to
construe Rule 905(A) as authorizing expansion of a case after
thorough appellate review renders an absurd result. See 1
Pa.C.S. § 1922(1) (in ascertaining the intent of this Court in
enacting a procedural rule, we must presume that the result was
not intended to be “absurd, impossible of execution or
unreasonable”).
Moreover, Rule 905(A) cannot be read or interpreted in a
vacuum. Pennsylvania Rule of Appellate Procedure 2591
specifically addresses a lower court’s authority on remand. It
provides that upon remand from a higher court, the lower court
“shall proceed in accordance with the judgment or other order of
the appellate court[.]” Pa.R.A.P. 2591.19 Consequently, the
breadth of Rule 905(A) is limited by Pa.R.A.P. 2591. See 1
Pa.C.S. § 1933 (stating that if two provisions conflict, they shall
be construed, if possible, so that both may be given effect; if the
conflict is irreconcilable, the specific provision prevails and is to
be construed as an exception to the general provision).
______
19 Indeed, it has long been the law in Pennsylvania that
following remand, a lower court is permitted to proceed
only in accordance with the remand order.
***
While we believe that our case law is clear, to the extent there is
any lack of clarity in our prior decisions by their failure to
consider Rule 905(A), we specifically hold that a PCRA court
does not have discretion to treat new claims raised by a
PCRA petitioner as an amended PCRA petition following
remand from this Court unless such amendment is
expressly authorized in the remand order. Rather,
application of the liberal amendment policy of Rule 905(A)
requires that the PCRA petition in question is still pending before
the PCRA court at the time the request for amendment is made.
Following a full and final decision by a PCRA court on a PCRA
petition, that court no longer has jurisdiction to make any
determinations related to that petition unless, following appeal,
the appellate court remands the case for further proceedings in
the lower court. In such circumstances, the PCRA court may only
act in accordance with the dictates of the remand order. The
PCRA court does not have the authority or the discretion to
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permit a petitioner to raise new claims outside the scope of the
remand order and to treat those new claims as an amendment
to an adjudicated PCRA petition.21
______
21 To hold otherwise would allow “an extra round of
collateral attack for certain defendants, unauthorized by
the General Assembly,” which this Court has expressly
condemned. See Commonwealth v. Holmes, 79 A.3d
562, 576 (Pa. 2013).
Sepulveda, 144 A.3d at 1278-80 (emphasis added; citations altered; some
citations and footnotes omitted).
As in Sepulveda, the PCRA court here fully addressed the issues
raised in Appellant’s initial timely-filed PCRA petition and rendered a final
decision on that petition. Appellant appealed from that final order to this
Court. Upon review, we remanded with specific instructions for the PCRA
court to (1) appoint counsel and (2) conduct an evidentiary hearing on
Appellant’s ineffective-assistance-of-counsel claim regarding Appellant’s
decision not to testify. McCollum, 183 A.3d 1041 (unpublished
memorandum at 8-9). By permitting Appellant to raise a new claim in what
it considered to be an amendment to Appellant’s first PCRA petition, “the
PCRA court exceeded the scope of our remand order and the scope of its
authority.” Sepulveda, 144 A.3d at 1280-81. Accordingly, we will not
consider Appellant’s amended PCRA petition in our review of this case as
leave to amend it was improvidently granted. Furthermore, the PCRA court’s
December 5, 2018 order granting leave to amend the petition was a legal
nullity because the PCRA court lacked jurisdiction to enter such order. Id.
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Once the PCRA court disposed of the June 24, 2015 PCRA petition in its April
3, 2019 order, our directive on remand was completed and nothing further
should have been pending in the matter, rendering the April 3, 2019 order a
final order pursuant to Pa.R.A.P. 341.
Thus, we must determine whether Appellant’s notice of appeal was
timely filed from the April 3, 2019 order dismissing his June 24, 2015 PCRA
petition.8 See Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa.
Super. 2015) (citation omitted) (“We lack jurisdiction to consider untimely
appeals, and we may raise such jurisdictional issues sua sponte.”). A notice
of appeal shall be filed within 30 days after the entry of the order from which
the appeal is taken. Pa.R.A.P. 903(a).
The timeliness of an appeal and compliance with the statutory
provisions granting the right to appeal implicate an appellate
court’s jurisdiction and its competency to act. Absent
extraordinary circumstances, an appellate court lacks the power
to enlarge or extend the time provided by statute for taking an
appeal. Thus, an appellant’s failure to appeal timely an order
generally divests the appellate court of its jurisdiction to hear the
appeal.
Commonwealth v. Williams, 106 A.3d 583, 587 (Pa. 2014) (citations
omitted).
In his response to our show-cause order, Appellant states that he was
represented by counsel at the time the PCRA court issued the April 3, 2019
8 Because we are only dealing with an appeal from a single order, this
Court’s concerns in the show-cause order regarding compliance with
Pa.R.A.P. 341 are no longer implicated.
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order. As previously noted by this Court, no appeal was filed from that order
and Appellant admits as such. According to Appellant, counsel informed him
on April 22, 2019, that “she will not be filing an appeal for the April 3, 2019
order until the outcome of the [] amended issue becomes final” and that if
an appeal was filed in April 2019, “it would be denied because both issues
had not been finalized[.]” Appellant’s Response, 12/26/2019, at 2. Appellant
does not allege that he asked counsel to file a notice of appeal and that
counsel refused to do so based on her mistaken perception of the procedural
posture. Rather, he merely recounts that counsel advised him of her
perception that any appeal from the April order would be premature.
This Court has “many times declined to quash an appeal when the
defect resulted from an appellant’s acting in accordance with misinformation
relayed to him by the trial court.” Commonwealth v. Larkin, 235 A.3d
350, 353 (Pa. Super. 2020) (en banc) (emphasis added; citations omitted).
Instantly, the PCRA court did not relay misinformation to Appellant about his
appeal period. In fact, the PCRA court explicitly stated in its April 3, 2019
order dismissing Appellant’s PCRA petition that he had 30 days to appeal
that final order. Rather, it was counsel who, according to Appellant’s
response to our show cause order, relayed misinformation about the
timeframe for appeal. Given this background, our line of cases declining to
quash based on a breakdown in the court system does not apply here.
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However, our review does not end here. In November 2019, Appellant
inquired with the PCRA court about the status of his appeal because the
PCRA court had not yet docketed his September 23, 2019 notice of appeal.9
As noted hereinabove, the PCRA court responded by sua sponte reinstating
Appellant’s PCRA appeal rights nunc pro tunc, and Appellant filed a notice of
appeal in response, which this Court ultimately dismissed as duplicative.
[T]his Court has held that a trial court may not sua sponte
reinstate a defendant’s post-sentence motion or direct appeal
rights nunc pro tunc in the absence of a PCRA petition being filed
before the court. Commonwealth v. Turner, 73 A.3d 1283,
1285 n.2 (Pa. Super. 2013); see also 42 Pa.C.S. § 9545(a)
(stating, “[n]o court shall have authority to entertain a request
for any form of relief in anticipation of the filing of a petition
under this subchapter[]”). No PCRA petition has been filed. As a
result, the trial court lacked the judicial power when it entered
its [] order, sua sponte extending the post-sentence motion
filing period.
Commonwealth v. Leatherby, 116 A.3d 73, 87 n.4 (Pa. Super. 2015)
(Mundy, J., dissent) (citations altered). Here, Appellant did not file a petition
to reinstate his PCRA appeal rights nunc pro tunc, and the PCRA court
therefore lacked the power to grant that relief sua sponte.10
9 We note that this error on the PCRA court’s part does not impact our
analysis as the notice was not rendered untimely by the court’s failure to
docket it; the filing itself was untimely.
10 Even if we could somehow construe Appellant’s letter inquiring about the
status of his appeal as a petition to reinstate his PCRA appeal rights, the
PCRA court lacked jurisdiction to grant such relief.
A petition to reinstate the right to appeal an order denying a first PCRA
petition is a second PCRA petition. Commonwealth v. Fairiror, 809 A.2d
(Footnote Continued Next Page)
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Based on the foregoing, we are compelled to quash the instant appeal
as untimely filed.
(Footnote Continued) _______________________
396, 397 (Pa. Super. 2002). Under the PCRA, all petitions must be filed
within one year of the date that the petitioner’s judgment became final,
unless one of three statutory exceptions applies. 42 Pa.C.S. § 9545(b)(1);
Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006). For purposes
of the PCRA, a judgment becomes final at the conclusion of direct review. 42
Pa.C.S. § 9545(b)(3). “The PCRA’s time restrictions are jurisdictional in
nature.” Chester, 895 A.2d at 522. “Thus, ‘[i]f a PCRA petition is untimely,
neither this Court nor the trial court has jurisdiction over the petition.
Without jurisdiction, we simply do not have the legal authority to address
the substantive claims.’” Id. (quoting Commonwealth v. Lambert, 884
A.2d 848, 851 (Pa. 2005)). “In the PCRA context, statutory jurisdiction
cannot be conferred by silence, agreement or neglect.” Commonwealth
v. Ballance, 203 A.3d 1027, 1033 (Pa. Super. 2019) (citation omitted).
Moreover, the PCRA “confers no authority upon this Court to fashion ad
hoc equitable exceptions to the PCRA time-bar in addition to those
exceptions expressly delineated in the Act.” Commonwealth v. Watts, 23
A.3d 980, 983 (Pa. 2011) (internal quotation marks omitted).
Instantly, Appellant’s judgment of sentence became final on October
28, 2014, when the period for Appellant to file a petition for a writ of
certiorari with the United States Supreme Court expired. See 42 Pa.C.S.
§ 9545(b)(3); U.S.Sup.Ct.R. 13(1). Therefore, Appellant had until October
28, 2015, to file timely any PCRA petition. Appellant’s November 2019 letter
was patently untimely under the PCRA, and he had the burden of pleading
and proving an exception to the time-bar in order to secure relief. 42 Pa.C.S.
§ 9545(b)(1). Appellant’s letter did not allege any of the statutory
exceptions to the PCRA’s one-year time bar. Even if we were able to
incorporate Appellant’s later statement that counsel advised Appellant that
an appeal from the April order would be premature into his letter, “[i]t is
well settled that allegations of ineffective assistance of counsel will not
overcome the jurisdictional timeliness requirements of the PCRA.”
Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005). Thus, even
if Appellant’s letter could be considered a petition to reinstate his PCRA
appeal rights, the PCRA court still lacked jurisdiction to do so.
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Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2020
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