Com. v. McAleer, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TERRENCE MCALEER :
:
Appellant : No. 2381 EDA 2019
Appeal from the Order Entered July 15, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006283-2007
BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED OCTOBER 19, 2020
Terrence McAleer (McAleer) appeals from the order entered in the Court
of Common Pleas of Philadelphia County (PCRA court) denying his application
to appeal nunc pro tunc from the dismissal of his first petition filed pursuant
to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After
review, we vacate and remand with instructions.
I.
In 2008, a jury convicted McAleer of involuntary deviate sexual
intercourse, unlawful contact with a minor, aggravated indecent assault,
corruption of a minor and endangering the welfare of a child.1 The trial court
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3123, 6318, 3125 and 6301, respectively.
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sentenced him to an aggregate 7 to 14 years’ imprisonment with a consecutive
5 years’ probation. On appeal, McAleer challenged the discretionary aspects
of his sentence, but we affirmed the judgment of sentence due to a defective
Pa.R.A.P. 2119(f) statement. Commonwealth v. McAleer, 6 A.3d 558 (Pa.
Super. 2010) (unpublished memorandum). McAleer filed a PCRA petition and
had his direct appellate rights reinstated nunc pro tunc after which he filed a
timely notice of appeal. On October 1, 2014, we affirmed the judgment of
sentence, and our Supreme Court denied his petition for allowance of appeal
on April 8, 2015. Commonwealth v. McAleer, No. 2261 EDA 2013 (Pa.
Super. 2014) (unpublished memorandum), appeal denied, 113 A.3d 279 (Pa.
2015). Because he did not seek certiorari in the United States Supreme Court,
McAleer’s judgment of sentence became final on July 7, 2015.2
On February 28, 2016, McAleer filed a pro se PCRA petition and was
appointed counsel (PCRA counsel).3 On July 31, 2017, PCRA counsel
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2 See 42 Pa.C.S. § 9545(b)(3) (providing that “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.”); U.S. Sup. Ct. R. 13 (“A petition
for a writ of certiorari seeking review of a judgment of a lower state court that
is subject to discretionary review by the state court of last resort is timely
when it is filed ... within 90 days after entry of the order denying discretionary
review.”).
3 Because his first PCRA petition resulted in reinstatement of his direct appeal
rights, this was McAleer’s first PCRA petition for timeliness purposes. See
Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 2013) (“This
Court has explained that when a PCRA petitioner’s direct appeal rights are
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requested to withdraw by submitting a Turner/Finely “no merit” letter.4 On
September 20, 2017, the PCRA court sent McAleer notice under Pa.R.Crim.P.
907 that it intended to dismiss his petition without further proceedings
because his claims were meritless. After McAleer filed a pro se response, the
PCRA court dismissed McAleer’s petition on October 20, 2017. Besides not
addressing PCRA counsel’s request to withdraw, the court’s order did not
include any information about McAleer’s right to appeal or the time limits for
doing so. Further, the court’s order included no indication that it was served
on McAleer as required by Pa.R.Crim.P. 907(4), nor did the order’s docket
entry. There is no dispute that the order was sent only to PCRA counsel. No
notice of appeal was filed from the final order dismissing McAleer’s PCRA
petition.
On February 28, 2018, McAleer filed a pro se application to reinstate
appeal rights nunc pro tunc, claiming that he was not timely notified of the
dismissal of his PCRA petition. In his application, McAleer relied on
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reinstated nunc pro tunc in his first PCRA petition, a subsequent PCRA petition
will be considered a first PCRA petition for timeliness purposes.”).
4 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 479 A.2d 568 (Pa. Super. 1988) (en banc). PCRA
counsel did not file a separate petition to withdraw, nor did her “no merit”
letter include any indication that McAleer was provided a copy of the “no merit”
letter or that she had advised him that he had the right to proceed pro se or
with the assistance of privately retained counsel if the PCRA court granted
withdrawal.
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Pa.R.Crim.P. 114, which states that “[a] copy of any order or court notice
promptly shall be served on each party’s attorney, or the party if
unrepresented.” Pa.R.Crim.P. 114(B)(1). According to McAleer, the PCRA
court should have sent him a copy of the final order dismissing his petition,
and that the failure to do so deprived him of his right to timely appeal from
the dismissal of his PCRA petition.
There were no further developments until October 5, 2018, when PCRA
counsel finally filed a motion to withdraw as counsel, which the PCRA court
formally granted on February 28, 2019. A few months later, on July 15, 2019,
the PCRA court denied McAleer’s application to reinstate appeal rights nunc
pro tunc without hearing. After denial of his application, McAleer filed a timely
notice of appeal on August 15, 2019, following which the PCRA court appointed
McAleer appellate counsel.5
On September 21, 2019, McAleer filed a Pa.R.A.P. 1925(b) statement in
which he argued that (1) his application to reinstate appeal rights nunc pro
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5 It is not clear what prompted the appointment since the PCRA court had
permitted McAleer’s original counsel to withdraw. See Commonwealth v.
Rykard, 55 A.3d 1177, 1183 n.1 (Pa. Super. 2012) (noting that once PCRA
counsel has been permitted to withdraw pursuant to Turner/Finley, new
counsel shall not be appointed); see also Commonwealth v. Maple, 559
A.2d 953, 956 (Pa. Super. 1989) (stating that where appointed post-
conviction counsel has been permitted to withdraw pursuant to
Turner/Finley, the appointment of new counsel is unnecessary and
improper). Nevertheless, the PCRA court has discretion to appoint counsel to
represent a PCRA petitioner whenever the interests of justice require it. See
Pa.R.Crim.P. 904(E).
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tunc should have been treated as a second PCRA petition, and (2) his
application was timely due to “a breakdown in the judicial system pursuant to
42 Pa.C.S. § 9545(b)(1)(i) or abandonment by counsel.” In its Pa.R.A.P.
1925(a) opinion, the PCRA court disagreed that it needed to serve McAleer
with its final order because PCRA counsel was still entered as counsel at the
time of dismissal. Further, the PCRA court faulted McAleer for not informing
PCRA counsel that he wanted to appeal after he received the Rule 907 notice.
Additionally, even if McAleer’s application was treated as a subsequent PCRA
petition, the PCRA court concluded that he was unable to satisfy the timeliness
exception under 42 Pa.C.S. § 9545(b)(1)(i) because there was no proof that
PCRA counsel had abandoned him.
II.
McAleer contends that his application to reinstate appeal rights nunc pro
tunc was not time-barred because there was a breakdown in the operation of
the judicial system under 42 Pa.C.S. § 9545(b)(1)(i).6 In support, he
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6 On appeal, both McAleer and the Commonwealth agree that his application
to reinstate appeal rights nunc pro tunc should have been treated as a second
or subsequent PCRA petition. Under the PCRA, all petitions must be filed
within one year of the date that the petitioner’s judgment of sentence became
final, unless one of three statutory exceptions applies. 42 Pa.C.S.
§ 9545(b)(1) provides:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
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contends that the PCRA court should have, of course, granted PCRA counsel
to withdraw when it accepted the Turner/Finley “no merit” letter and gave
him Rule 907 notice of its intent to dismiss. Because it did not do so, he
contends that the effect was to allow PCRA counsel to improperly remain on
the docket even though PCRA counsel’s request to withdraw was necessarily
granted as part of the final order dismissing his petition. This, he contends,
is the breakdown of the operation of the court causing him not to receive the
final order dismissing his PCRA petition and justifies that he be permitted to
file a nunc pro tunc appeal. We agree that there was a breakdown in the
court’s operations, albeit for different reasons.
Pennsylvania Rule of Criminal Procedure 907(4) provides:
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).
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(ii) the facts upon which the claim is predicated were unknown to
the petitioner and could not have been ascertained by the exercise
of due diligence; or
(iii) the right asserted is a constitutional right that was recognized
by the Supreme Court of the United States or the Supreme Court
of Pennsylvania after the time period provided in this section and
has been held by that court to apply retroactively.
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Pursuant to Rule 114, service shall be in writing by “sending a copy to
an unrepresented party by certified, registered, or first class mail addressed
to the party’s place of ... confinement.” Pa.R.Crim.P. 114(B)(3)(a)(v).
Further, an order is properly entered on the docket by indication thereon of
“(a) the date of receipt in the clerk’s office of the order or court notice; (b)
the date appearing on the order or court notice; and (c) the date of service of
the order or court notice.” Pa.R.Crim.P. 114(C)(2). Finally, Pa.R.A.P. 301
provides that “no order of a court shall be appealable until it has been entered
upon the appropriate docket in the lower court.” Pa.R.A.P. 301(a)(1). An
order is properly entered on the docket by complying with Pa.R.Crim.P.
114(C).
Regardless of whether PCRA counsel was granted permission to
withdraw, the PCRA court’s order dismissing the PCRA petition failed to
conform to Pa.R.Crim.P. 907(4). Specifically, the court’s order includes
nothing about McAleer’s right to appeal from the order disposing of his petition
or the time limits within which his appeal would need to be filed. Further,
even though the certified record confirms that the clerk of courts docketed the
October 20, 2017 order dismissing McAleer’s petition, the docket entry does
not indicate the date of service of the court’s order in accordance with
Pa.R.Crim.P. 114(C). Moreover, the docket entry does not reveal whether the
clerk of courts complied with Pa.R.Crim.P. 114(b), as there is no evidence of
any method of service. This being the case, along with there being no dispute
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that the court’s order was never sent to McAleer, we find that there was a
breakdown in the operations of the court that prevented McAleer from timely
pursuing an appeal from the order dismissing his first PCRA petition.
Under these circumstances, we vacate the PCRA court’s July 15, 2019
order denying McAleer’s application to reinstate appeal rights nunc pro tunc
and remand for further proceedings. On remand, the PCRA court shall
reinstate McAleer’s right to file a notice of appeal nunc pro tunc from its
October 20, 2017 order dismissing his first PCRA petition. Accordingly, we
vacate and remand with instructions.
Order vacated; case remanded with instructions. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/20
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