Com. v. Johnson, L.

J-S43039-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LOVELL MARVELOUS JOHNSON :
:
Appellant : No. 82 WDA 2020
Appeal from the PCRA Order Entered December 20, 2019
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000238-2018
BEFORE: SHOGAN, J., STABILE, J., and KING, J.
MEMORANDUM BY KING, J.: FILED OCTOBER 15, 2020
Appellant, Lovell Marvelous Johnson, appeals from the order entered in
the Erie County Court of Common Pleas, dismissing his first petition under the
Post Conviction Relief Act (“PCRA”).1 After careful review, we reverse and
remand for reinstatement of Appellant’s direct appeal rights nunc pro tunc.
The relevant facts and procedural history of this appeal are as follows.
The Commonwealth charged Appellant with multiple offenses related to his
participation in an armed robbery. On January 14, 2019, Appellant entered a
negotiated plea of nolo contendere to one count of conspiracy to commit
robbery. Following the completion of written and oral colloquies, the court
accepted Appellant’s plea and imposed the recommended sentence of six (6)
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
J-S43039-20
to twelve (12) years’ imprisonment. Pursuant to the plea agreement, the
Commonwealth withdrew the remaining charges.
Despite having appointed counsel,2 Appellant submitted four pieces of
pro se correspondence to the trial court between January 16, 2019 and
January 24, 2019. Among other things, Appellant’s pro se submissions: 1)
requested the withdrawal of the nolo contendere plea; 2) alleged that plea
counsel was ineffective; and 3) asked for information regarding the deadline
for filing a notice of appeal. Pursuant to Pa.R.Crim.P. 576(A)(4), the clerk of
courts docketed the pro se correspondence and forwarded it to plea counsel.
On February 4, 2019, plea counsel filed a motion to withdraw
representation. Plea counsel asserted that Appellant’s allegations of
ineffectiveness against her were meritless. Based on these allegations,
however, plea counsel requested permission to withdraw. Plea counsel also
asked the court to accept Appellant’s pro se correspondence as properly filed
post-sentence motions. On February 5, 2019, the court permitted plea
counsel to withdraw and accepted the pro se correspondence as timely filed
post-sentence motions seeking the withdrawal of Appellant’s plea. On
February 7, 2019, the court denied the post-sentence motions. The court’s
____________________________________________
2 On December 29, 2017, Appellant filed a pro se application for appointed
counsel, certifying that he was unable to afford private counsel. Although the
record does not contain a corresponding order disposing of the application,
court-appointed counsel represented Appellant throughout the proceedings in
the trial court. Further, this Court’s docket continues to list Appellant as
having in forma pauperis status.
-2-
J-S43039-20
order included the following notation regarding Appellant’s right to counsel:
[Appellant] has the right to assistance of counsel in the
preparation of any appeal. If [Appellant] cannot afford an
attorney, one will be appointed to represent him. An
application can be obtained and filed with the Erie County
Public Defender’s Office ….
(Order, entered 2/7/19, at ¶2). The court took no further actions to determine
whether Appellant desired to proceed pro se or with new counsel.
On February 19, 2019, Appellant submitted a pro se letter to the trial
court inquiring about the assignment of new counsel. The clerk of courts
docketed this letter, but the court did not issue a formal response. On March
4, 2019, Appellant filed a pro se motion for the appointment of counsel. The
court denied Appellant’s pro se motion on March 7, 2019, reiterating that he
could apply for counsel through the public defender’s office.
On April 4, 2019, Appellant filed a pro se motion explaining that the
public defender’s office could not represent him because it had represented
his co-defendant. Before the court could address this motion, Appellant filed
a pro se notice of appeal from his judgment of sentence on April 5, 2019. By
order entered April 15, 2019, the court appointed new counsel (“direct appeal
counsel”) to represent Appellant on appeal. Direct appeal counsel
subsequently filed a motion to quash Appellant’s appeal as untimely, which
this Court granted on August 19, 2019.
Despite the fact that he was still represented by direct appeal counsel,
Appellant filed a pro se PCRA petition on September 3, 2019. Again, the clerk
-3-
J-S43039-20
of courts docketed the pro se petition and forwarded it to counsel. On
September 10, 2019, direct appeal counsel filed a motion to withdraw
representation, stating he filed the motion to quash the untimely appeal “so
that [Appellant] could pursue a timely PCRA petition.” (Motion, filed 9/10/19,
at ¶2). That same day, the court granted the withdrawal motion, appointed
current counsel (“PCRA counsel”), and directed PCRA counsel to file an
amended PCRA petition.
On October 30, 2019, PCRA counsel filed an amended petition on
Appellant’s behalf. The amended petition alleged that Appellant asked plea
counsel to pursue a direct appeal from the judgment of sentence, but plea
counsel ignored Appellant’s request. The PCRA court conducted an evidentiary
hearing on December 17, 2019. Appellant and plea counsel both testified at
the hearing. At the conclusion of the hearing, PCRA counsel raised an
additional argument that “there was a gap in terms of [Appellant’s] legal
representation,” from the time plea counsel withdrew until the court appointed
direct appeal counsel. (N.T. Hearing, 12/17/19, at 46). PCRA counsel
observed that the gap in representation deprived Appellant of the opportunity
to file a timely notice of appeal. (See id.)
By order and opinion entered December 20, 2019, the court denied
PCRA relief. Specifically, the court credited plea counsel’s testimony that
Appellant did not ask her to file a notice of appeal. Further, the court noted:
“The February 7, 2019 order [denying Appellant’s pro se post-sentence
-4-
J-S43039-20
motion] notified [Appellant] of the thirty day appeal period, and no act or
failure to act by any attorney precluded him from perfecting a timely appeal.”
(Order and Opinion, entered 12/20/19, at 4).
Appellant timely filed a notice of appeal on January 16, 2020. On
January 23, 2020, the court ordered Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Appellant timely filed
his Rule 1925(b) statement on February 13, 2020.
Appellant now raises two issues for our review:
Whether the [PCRA] court erred in failing to grant PCRA
relief in the nature of reinstatement of appellate rights
wherein Appellant satisfied his burden under
[Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564(1999)] or alternatively [plea] counsel failed to investigate
or discern that Appellant’s communications as to withdrawal
of his pleas equated to the statement of an intention to
exercise his appellate rights, which ultimately was not
preserved by counsel?
Whether the [trial] court erred in depriving Appellant of his
right to counsel during a critical stage of the case in that the
court permitted [plea counsel] to withdraw from the case
yet then failed to timely appoint new counsel during the
appeal period relating to the court denying Appellant leave
to withdraw his no contest plea?
(Appellant’s Brief at 2).
We begin by addressing Appellant’s second issue, which is dispositive.
Appellant argues the trial court’s decision to allow plea counsel to withdraw
“served to create a ‘gap’ in his continuing right to legal counsel during a critical
stage” of the proceedings, and “the subsequent appointment of [direct appeal
counsel] after some passage of time failed to ensure [A]ppellant’s capacity to
-5-
J-S43039-20
exercise his appellate rights in a timely manner.” (Id. at 8). Appellant
concludes this Court must remand the matter for reinstatement of his direct
appeal rights nunc pro tunc. We agree.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error. Commonwealth v. Conway,
14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795(2011). This Court grants great deference to the factual findings of the PCRA
court if the record contains any support for those findings. Commonwealth
v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932
A.2d 74 (2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012).
“A criminal defendant’s right to counsel is guaranteed by the Sixth
Amendment to the United States Constitution and Article I, Section 9 and
Article V, Section 9 of the Pennsylvania Constitution.” Commonwealth v.
Clyburn, 42 A.3d 296, 298 (Pa.Super. 2012).
[T]he United States Supreme Court has consistently held
that the Sixth Amendment right to counsel does not attach
until a prosecution is commenced, i.e., until the initiation of
adversary judicial criminal proceedings—whether by way of
formal charge, preliminary hearing, indictment, information,
or arraignment.
Once attachment of the Sixth Amendment right to counsel
has occurred, the accused at least is entitled to the presence
of appointed counsel during any ‘critical stage’ of the post[-
]attachment proceedings.
-6-
J-S43039-20
Commonwealth v. Padilla, 622 Pa. 449, 474-75, 80 A.3d 1238, 1252-53
(2013), certiorari denied, 573 U.S. 907, 134 S.Ct. 2725, 189 L.Ed.2d 769(2014) (internal citations and quotation marks omitted). “The direct appeal
is such a critical stage.” Commonwealth v. Franklin, 823 A.2d 906, 909
(Pa.Super. 2003).
Additionally, Pennsylvania Rule of Criminal Procedure 120 states: “An
attorney who has been retained or appointed by the court shall continue such
representation through direct appeal or until granted leave to withdraw by the
court pursuant to paragraph (B).” Pa.R.Crim.P. 120(A)(4). Counsel may
withdraw by filing a motion with the clerk of courts. Pa.R.Crim.P.
120(B)(2)(a). Nevertheless, Rule 120 also requires:
(3) Upon granting leave to withdraw, the court shall
determine whether new counsel is entering an appearance,
new counsel is being appointed to represent the defendant,
or the defendant is proceeding without counsel.
Pa.R.Crim.P. 120(B)(3) (emphasis added). The Comment to Rule 120
explains:
The court must make a determination of the status of a case
before permitting counsel to withdraw. Although there are
many factors considered by the court in determining
whether there is good cause to permit the withdrawal of
counsel, when granting leave, the court should determine
whether new counsel will be stepping in or the defendant is
proceeding without counsel, and that the change in
attorneys will not delay the proceedings or prejudice the
defendant, particularly concerning time limits.
Pa.R.Crim.P. 120—Comment.
Where a defendant is entitled to counsel, either constitutionally or rule-
-7-
J-S43039-20
based, a colloquy is required to make certain that any waiver of the right or
entitlement is voluntary, knowing, and intelligent. See Pa.R.Crim.P. 121
(setting forth procedure judge must follow to ensure waiver of counsel is
knowing, voluntary, and intelligent). See also Commonwealth v. Neal, 563
A.2d 1236, 1243 (Pa.Super. 1989), appeal denied, 525 Pa. 597, 575 A.2d 564(1990) (holding trial court denied defendant his constitutional right to counsel
by dismissing public defender and forcing defendant to proceed pro se;
defendant “was literally forced by the court to represent himself without being
apprised of the consequences and pitfalls thereof”); Commonwealth v.
Brown, 476 A.2d 381, 388 (Pa.Super. 1984) (holding defendant did not waive
right to counsel where he was unable to afford attorney and court did not
conduct “penetrating and comprehensive examination” of all circumstances
pertaining to any waiver of right to counsel).
Instantly, plea counsel filed a motion to withdraw representation after
the court imposed Appellant’s sentence. The court subsequently permitted
plea counsel to withdraw without determining whether it needed to appoint
new counsel or whether Appellant wanted to proceed pro se. See Pa.R.Crim.P.
120(B)(3), Comment. Instead, the court burdened Appellant with the task of
contacting the public defender’s office, despite Appellant’s filing of a pro se
motion for the appointment of new counsel. Moreover, the court compounded
its error by failing to conduct a colloquy before forcing Appellant to proceed
pro se during the period for filing a timely notice of appeal. See Pa.R.Crim.P.
-8-
J-S43039-20
121.
The court’s non-compliance with Rule 120 effectively foreclosed direct
appeal and amounted to a denial of counsel. Compare Commonwealth v.
Mikell, 968 A.2d 779, 781 (Pa.Super. 2009), appeal denied, 604 Pa. 688, 985
A.2d 971 (2009) (reiterating “an accused who is deprived entirely of his right
of direct appeal by counsel’s failure to perfect an appeal is per se without the
effective assistance of counsel, and is entitled to reinstatement of his direct
appellate rights”). Thus, the court erred in permitting plea counsel to
withdraw without complying with Rule 120(B)(3). Accordingly, we reverse
and remand for reinstatement of Appellant’s direct appeal rights nunc pro
tunc.3
Order reversed; case remanded with instructions. Jurisdiction is
relinquished.
____________________________________________
3 On September 17, 2020, Appellant filed a pro se application for appointment
of counsel with this Court. In his application, Appellant claims PCRA counsel
failed to: 1) correspond with Appellant; 2) file certain motions requested by
Appellant; and 3) make reasonable efforts to litigate Appellant’s PCRA claims.
In light of our disposition, and mindful of judicial economy, we deny
Appellant’s application without prejudice to his ability to re-raise his
arguments upon remand.
-9-
J-S43039-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2020
- 10 -