Com. v. Lee, C.

J-S40026-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CURTIS LEE :
:
Appellant : No. 297 EDA 2020
Appeal from the PCRA Order Entered December 17, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006869-2016
BEFORE: SHOGAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED OCTOBER 6, 2020
Appellant, Curtis Lee, appeals from the order entered in the Philadelphia
County Court of Common Pleas, which dismissed his first petition brought
pursuant to the Post Conviction Relief Act (“PCRA”).1 We vacate and remand
for further proceedings.
The relevant facts and procedural history of this case are as follows. On
June 2, 2016, police arrested Appellant for his role as the “look-out” in a drug
transaction. The Commonwealth subsequently charged Appellant with
possession with intent to deliver (“PWID”), conspiracy, and possession of a
controlled substance. On November 14, 2016, Appellant filed a pro se motion
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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to remove defense counsel, Attorney Daniel Conner, and to appoint new
counsel. Appellant alleged he is diagnosed as a paranoid schizophrenic and
suffers from severe psychosis. Appellant claimed he was reported as a missing
person from his treatment facility in April 2016, after Appellant had wandered
off and did not return. Appellant maintained that Attorney Conner failed to
investigate Appellant’s mental illness, subpoena his mental health records, or
visit with Appellant to discuss a defense strategy, among other things.
On February 13, 2017, Appellant retained private counsel, Attorney
Douglas Dolfman, who replaced Attorney Conner. Represented by Attorney
Dolfman, Appellant proceeded to a bench trial on June 8, 2017. Prior to trial,
Appellant executed a written colloquy confirming that his waiver of his right
to a jury trial was knowing, intelligent, and voluntary. The court also
conducted an oral colloquy to confirm Appellant’s waiver was valid.
During the oral colloquy, the court asked Appellant if he had ever been
treated in the past or diagnosed with any kind of mental health issues.
Appellant responded: “I mean, just depression and some other stuff.” (N.T.
Bench Trial, 6/8/17, at 5). The court also asked Appellant if he was taking
any medication for his mental health issues. Appellant responded: “Yeah, I
used to take medication. Yes, Sir.” (Id. at 5-6). The court asked Appellant
if he was taking any medication today, to which Appellant answered “[n]o.”
(Id.) Following the colloquy, the court accepted Appellant’s waiver as
knowing, intelligent, and voluntary, and Appellant proceeded with the bench
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trial. At the conclusion of trial, the court convicted Appellant of all charges.
Defense counsel asked the court to defer sentencing pending a pre-sentence
investigation (“PSI”) report, and the court granted that request.
On July 11, 2017, a PSI took place. During the interview, Appellant
reported his history of mental illness. Appellant had difficulty focusing and
asked if the interviewer was in the Central Intelligence Agency (“CIA”),
because Appellant claimed the CIA wanted to hurt him. The interviewer
reported that “[Appellant’s] behavior appeared genuine and not an effort to
avoid complying with the presentence interview.” (See Exhibit K attached to
PCRA Petition, filed 3/25/19, at preface).
On August 9, 2017, Appellant filed a motion to remove Attorney Dolfman
as counsel. Appellant alleged that counsel failed to inform the court about
Appellant’s mental illness before trial. Appellant claimed he was unable to
follow the proceedings or participate in his defense due to his mental health
issues.
The court ordered Appellant to undergo a mental health evaluation on
September 8, 2017. Following the mental health evaluation, the court entered
an order on November 17, 2017, involuntarily committing Appellant under the
Mental Health Procedures Act2 for a period of 30 days. The court signed a
second involuntary commitment order on December 21, 2017, and a third
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2 50 P.S. §§ 7101 et seq.
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involuntary commitment order on May 31, 2018.
Appellant subsequently regained competency, retained new private
counsel, Attorney Rania Major, and proceeded to sentencing on July 20, 2018.
The court sentenced Appellant to an aggregate term of two (2) to five (5)
years’ imprisonment, plus five (5) years’ probation. Appellant timely filed a
counseled post-sentence motion on July 27, 2018. The court denied relief on
August 6, 2018. Appellant did not file a direct appeal.
On March 25, 2019, Appellant filed the current timely, counseled PCRA
petition. Appellant alleged, inter alia, Attorney Dolfman was ineffective for
failing to correct the record concerning Appellant’s answers during the jury
waiver colloquy. Appellant claimed trial counsel knew of his significant mental
health issues at the time of trial, but trial counsel did not raise the possibility
that Appellant was unable to knowingly, intelligently, and voluntarily waive his
rights due to Appellant’s incompetency. Appellant maintained that the PSI
report, filed shortly after trial, confirmed Appellant’s significant mental health
issues. Appellant insisted counsel had no reasonable strategic basis for failing
to bring Appellant’s mental health issues to the court’s attention, and counsel’s
ineffectiveness prejudiced Appellant. Appellant attached numerous exhibits
to his PCRA petition including, but not limited to, the PSI report and his mental
health records.
The Commonwealth filed a motion to dismiss on July 22, 2019, claiming
Appellant failed to proffer an expert opinion that Appellant was incompetent
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at the time he waived his right to a jury trial.
The record indicates that the court held a status conference on October
29, 2019.3 On November 4, 2019, the court issued notice of its intent to
dismiss the petition without a hearing per Pa.R.Crim.P. 907.
On November 21, 2019, Appellant filed a pro se response to Rule 907
notice.4 Appellant alleged that PCRA counsel (Attorney Major) was ineffective
for failing to subpoena trial counsel (Attorney Dolfman) for the October 29,
2019 proceeding. Appellant claimed Attorney Major had informed him that
Attorney Dolfman was ill and unable to attend the proceeding. Appellant
disputed the veracity of that claim. Appellant also indicated in the proof of
service attached to his response that he was indigent.
On November 25, 2019, Attorney Major filed an emergency motion for
extension of time to respond to Rule 907 notice. Counsel explained that
Appellant told her on November 15, 2019, that he wanted new counsel.
Because new counsel had not entered an appearance on Appellant’s behalf,
Attorney Major believed she was still duty-bound to represent Appellant.
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3 This proceeding was not transcribed.
4 In general, criminal defendants are not entitled to hybrid representation.
See Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032 (2011).
Nevertheless, as discussed in greater detail later in this memorandum,
Appellant’s pro se allegations of PCRA counsel’s ineffectiveness were proper
under these circumstances. See Commonwealth v. Ford, 44 A.3d 1190,
1200 (Pa.Super. 2012) (explaining that issues of PCRA counsel’s
ineffectiveness must be raised in serial PCRA petition or in response to Rule
907 notice before PCRA court).
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Attorney Major claimed she had a family medical emergency that required her
immediate attention, and she asked the court for an extension until December
9, 2019, to respond to the Rule 907 notice.
The court did not rule on Attorney Major’s motion, and Attorney Major
did not submit a response to Rule 907 notice. On December 18, 2019, the
court denied PCRA relief. On January 6, 2020, Appellant timely filed a pro se
notice of appeal, along with a request for in forma pauperis status. The court
did not order, and Appellant did not file, a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January 30, 2020,
the PCRA court permitted Attorney Major to withdraw and appointed new
counsel, Attorney James Lloyd, III, to represent Appellant on appeal.
Appellant raises one issue for our review:
Did the PCRA [c]ourt err and/or abuse its discretion when it
denied and dismissed, without a hearing, [A]ppellant’s
petition under the PCRA, where [Appellant] suffered from
mental illness prior to a non-jury trial and his counsel failed
to advise the trial court of the seriousness and scope of
[Appellant]’s documented and diagnosed mental illness
resulting in waiver of [Appellant]’s right to a jury trial which
was not knowing, intelligent, and voluntary?
(Appellant’s Brief at 4).
Before reviewing Appellant’s issue on appeal concerning trial counsel’s
alleged ineffectiveness, we must first address Appellant’s allegations of PCRA
counsel’s ineffectiveness raised in response to the Rule 907 notice. This Court
has recently explained:
“[W]here an indigent, first-time PCRA petitioner was denied
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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.”
Commonwealth v. Stossel, 17 A.3d 1286, 1290
(Pa.Super. 2011).
As this is Appellant’s first PCRA petition, he enjoys a well-
recognized right to legal representation during this initial
collateral review of his judgment of sentence. See
Commonwealth v. Albert, 561 A.2d 736, 738 (Pa. 1989)
(“[I]n this Commonwealth one who is indigent is entitled to
the appointment of counsel to assist with an initial collateral
attack after judgment of sentence”). In this context, “the
right to counsel conferred on initial PCRA review means ‘an
enforceable right’ to the effective assistance of counsel.”
See Commonwealth v. Holmes, 79 A.3d 562, 583 (Pa.
2013) (quoting Commonwealth v. Albrecht, 720 A.2d
693, 699-700 (Pa. 1998)).
While the existence of this right is well-established, the
procedure for its enforcement, i.e., raising allegations of
PCRA counsel’s ineffectiveness, remains ill-defined under
Pennsylvania law:
[T]here is no formal mechanism in the PCRA for a
second round of collateral attack focusing upon the
performance of PCRA counsel, much less is there a
formal mechanism designed to specifically capture
claims of previous counsel’s ineffectiveness defaulted
by initial-review PCRA counsel. Frankly, this Court
has struggled with the question of how to enforce the
“enforceable” right to effective PCRA counsel within
the strictures of the PCRA[.] The question of whether
and how to vindicate the right to effective PCRA
counsel has been discussed at length in majority
opinions and in responsive opinions .... But, the
Justices have not been of one mind respecting how to
resolve the issue, and no definitive resolution has
emerged.
Holmes, supra at 583-84. Stated more succinctly, “since
petitioners are not authorized to pursue hybrid
representation and counsel cannot allege [their] own
ineffectiveness, claims of PCRA counsel ineffectiveness
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cannot ordinarily be raised in state post-conviction
proceedings[.]” Commonwealth v. Rykard, 55 A.3d
1177, 1188 (Pa.Super. 2012) (emphasis added).
However, our Supreme Court also concomitantly requires
counseled PCRA petitioners to raise allegations of PCRA
counsel’s ineffectiveness in response to a Rule 907 notice of
intent to dismiss, or risk waiver. See Commonwealth v.
Pitts, 981 A.2d 875, 880 n.4 (Pa. 2009).
* * *
Subsequent interpretation of Pitts by both the Supreme
Court and this Court have reaffirmed this aspect of the
holding. See Commonwealth v. Robinson, 139 A.3d 178,
184 n.8 (Pa. 2016); Commonwealth v. Henkel, 90 A.3d
16, 25 (Pa.Super. 2014) (en banc) (“[T]he Pitts majority
mandated that a petitioner raise any allegations of PCRA
counsel ineffectiveness in response to the PCRA court’s
notice of dismissal”).
Commonwealth v. Betts, 2020 Pa. Super 225, ___ A.3d ___, 2020 WL
5524288, at *4-*5 (Pa.Super. filed Sept. 15, 2020) (some internal citations
omitted).
In Betts, the appellant had complied with Pitts by asserting PCRA
counsel’s ineffectiveness in response to the PCRA court’s issuance of Rule 907
notice, and before entry of a final PCRA order. Id. at *5. Nevertheless, the
PCRA court did not consider the allegations of PCRA counsel’s ineffectiveness
prior to dismissing his PCRA petition, so the appellant’s “concerns were not
reviewed or investigated by the PCRA court in a meaningful way.” Id.
Consequently, this Court held that the appellant “never received the
assistance of counsel in arguing the merits of these ineffectiveness claims to
the PCRA court.” Id. at *6. This Court reasoned:
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Appellant’s rule-based right to effective counsel extends
throughout the entirety of his first PCRA proceeding. See
Holmes, supra at 583; Henkel, supra at 22-23 (citing
Pa.R.Crim.P. 904(F)(2)). Necessarily, Appellant had a right
to effective counsel when he alleged [PCRA counsel’s]
ineffectiveness in response to the PCRA court’s Rule 907
notice. Id. However, as a matter of Pennsylvania law, he
could not rely upon [PCRA] counsel to assist him in this
specific context. See Commonwealth v. Spotz, 18 A.3d
244, 329 n.52 (Pa. 2011) (“[C]ounsel cannot argue his or
her own ineffectiveness”); see also, e.g., Commonwealth
v. Ellis, 626 A.2d 1137, 1138-39 (Pa. 1993) (“[U]nder no
other circumstances are counsel and client permitted to
present opposing arguments”).
In this specific context, Appellant’s timely allegations of
ineffectiveness created a “substantial” and “irreconcilable”
conflict in his relationship with [PCRA counsel]. See
Pa.R.Crim.P. 122(C) (“A motion for change of counsel by a
defendant for whom counsel has been appointed shall not
be granted except for substantial reasons”); [Jette, supra
at 1041 n.10] (“To satisfy this standard, a defendant must
demonstrate he has an irreconcilable difference with counsel
that precludes counsel from representing him”). Our case
law is replete with instances where allegations of
ineffectiveness have necessitated the appointment of
substitute counsel in the post-collateral context. See, e.g.,
Commonwealth v. Fox, 383 A.2d 199, 200 (Pa. 1978)
(“[W]e cannot assume that appellant’s [post-conviction]
counsel adequately advised appellant of his own
inadequacies ....”) (citing Commonwealth v. Sherard,
384 A.2d 234, 234 (Pa. 1977) (same)).
Instantly, [PCRA counsel] was faced with the impossible
choices of: (1) taking no action, or rejecting Appellant’s
assertions of ineffectiveness, thereby narrowing Appellant’s
available claims for relief and opposing his client’s interests;
or (2) confirming Appellant’s assertions and assisting
Appellant in pursuing them while he still represented
Appellant. Either choice would be objectionable under
Pennsylvania law. Accord Spotz, supra at 329 n.52; Ellis,
supra at 1138-39. And while Appellant had an obligation
to raise these claims, we do not believe that Pitts requires
him to shoulder the heavy burden of establishing his right
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to relief without the assistance of counsel. Requiring
Appellant to make substantive pro se arguments would
undermine his efforts to obtain collateral relief. See, e.g.,
[Jette, supra at 1040] (“[P]ermitting the pro se brief may
involve a conflict between lawyer and client, and this conflict
could undermine appellant’s chance of success”). Such a
conclusion would subvert the purpose of Appellant’s
entitlement to the effective assistance of counsel.
In sum, we believe that Appellant is entitled to remand for
the appointment of substitute PCRA counsel to prosecute
these abeyant claims of ineffectiveness. Our Supreme Court
has opined that remand and appointment of new PCRA
counsel is appropriate in such circumstances:
An indigent petitioner has the right to appointment of
counsel to assist in prosecuting a first PCRA petition.
Where that right has been effectively denied by the
action of court or counsel, the petitioner is entitled to
remand to the PCRA court for appointment of counsel
to prosecute the PCRA petition. The remand serves
to give the petitioner the benefit of competent counsel
at each stage of post-conviction review.
Commonwealth v. Kenney, 732 A.2d 1161, 1164 (Pa.
1999); see also Commonwealth v. Cox, 204 A.3d 371,
390 (Pa. 2019) (affirming Kenney for the proposition that
“remand for appointment of counsel is appropriate remedy
when the right to appointment [of] counsel has been
effectively denied”).
Betts, supra at *6-*7 (internal footnote omitted).
Instantly, although the record indicates that Appellant had the financial
means to retain private counsel earlier in these proceedings, the record also
suggests that Appellant was indigent at the time he responded pro se to the
court’s Rule 907 notice. Thus, Appellant was entitled to meaningful assistance
from counsel at this stage of the PCRA proceedings. See id. Notwithstanding
Appellant’s claims of PCRA counsel’s ineffectiveness and allegations of
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indigency, the PCRA court did not decide whether Appellant was indigent and
entitled to the appointment of counsel, see Pa.R.Crim.P. 904(C), (F)(2),
appoint counsel in the interests of justice even if Appellant was not indigent,
see Pa.R.Crim.P. 904(E), or otherwise address Appellant’s claims of PCRA
counsel’s ineffectiveness.
Under these circumstances, the best resolution of this case is to vacate
the order denying PCRA relief and remand for further proceedings. See
Kenney, supra; Betts, supra. On remand, court-appointed appellate
counsel (Attorney Lloyd) shall: (1) review Appellant’s pro se allegations of
PCRA counsel’s ineffectiveness;5 (2) file supplemental briefing limited to
discussing the merits of those claims within a reasonable time frame; and (3)
continue to represent Appellant for the duration of these PCRA proceedings.
The Commonwealth shall have a reasonable opportunity to respond.
Thereafter, the PCRA court shall proceed as it deems appropriate. See id.
(issuing similar instructions upon remand).
Order vacated. Case remanded with instructions. Jurisdiction is
relinquished.
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5 As this Court acknowledged in Betts, “Appellant’s assertions of [PCRA
counsel’s] ineffectiveness may ultimately prove meritless. Our holding is
concerned only with ensuring those claims are given proper consideration.
Due to the nature of our holding, we express no opinion on the arguable merit
of Appellant’s assertions.” Betts, supra at *7 n.13.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/06/2020
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