Com. v. Nguien, A.

J-S10028-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY NGUIEN :
:
Appellant : No. 2491 EDA 2021
Appeal from the PCRA Order Entered November 19, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011976-2013
BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 17, 2023
Anthony Nguien appeals pro se from the order, entered in the Court of
Common Pleas of Philadelphia County, dismissing his petition filed pursuant
to the Post Conviction Relief Act (PCRA). See 42 Pa.C.S.A. §§ 9541-9546.
After careful review, we vacate and remand for further proceedings.
The trial court summarized the facts of this matter as follows:
[W]hen [the victim] was between the ages of seven to fourteen,
she was sexually abused by her stepfather, [Nguien]. [The victim]
was age seven when she initially told her mother about the abuse.
As a result, [the victim] was not believed and was sent to live with
a family friend known as “Grandmom G[.]” During that time, the
victim]’s mother was incarcerated [for five years]. [Nguien]
continued to sexually assault [the victim] under the guise of taking
her for visits with her [step-]brothers. [The victim] wrote letters
to her mother to advise of the abuse. Upon the release of the
mother from prison in 2011, [the victim] returned to live with her,
[Nguien,] and her [step-]brothers. The sexual assaults
continued[] almost every day. Again, [the victim] attempted to
alert her mother, who reacted negatively. Finally, in April 2013[,
the victim] disclosed the sexual abuse to a teacher and the
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authorities became involved. When the mother refused to remove
[Nguien] from the home[, the victim] was removed and ultimately
sent to live with her biological father in California.
Trial Court Opinion, 3/22/18, at 3. Nguien was charged, under two separate
municipal court docket numbers,1 with rape—by forcible compulsion,2
involuntary deviate sexual intercourse with a child (IDSI),3 IDSI—person less
than 16 years of age,4 unlawful contact with a minor—sexual offenses,5
unlawful restraint—serious bodily injury, statutory sexual assault—8-11 years
old, corruption of minors,6 simple assault—child under 12 by person 18 years
of age or older, indecent assault, simple assault, and sexual assault.
In November 2016, Nguien proceeded to a jury trial; however, the jury
was unable to reach a verdict.7 Nguien was retried, before a jury, in 2017.
On April 25, 2017, Nguien was found guilty of rape—by forcible compulsion,
unlawful contact with a minor—sexual offenses, IDSI with a child, IDSI—
person less than 16 years of age, and corruption of minors. Sentencing was
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1 See MC51-CR-0026643-2013 & MC51-CR-0026644-2013.
2 18 Pa.C.S.A. § 3121(a)(1).
3 Id. at § 3123(b).
4 Id. at § 3123(a)(7).
5 Id. at § 6318(a)(1).
6 Id. at § 6301(a)(1)(i).
7 At the end of Nguien’s first trial, which ended in a mistrial, counsel requested
a prompt complaint instruction, which was denied. The court concluded that
the instruction was not warranted under the circumstances.
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deferred for a Megan’s Law Assessment,8 presentence investigation report,
and mental health evaluation. On September 18, 2017, Nguien was sentenced
to an aggregate term of imprisonment of 15-30 years, to be followed by 10
years of probation.
On September 25, 2017, Nguien filed a pro se direct appeal9 claiming,
among other things, that the trial court failed to give a prompt complaint
instruction to the jury at his retrial. In affirming Nguien’s judgment of
sentence, our Court found that the claim was waived because no request for
the instruction had been made at Nguien’s 2017 retrial, and, in the alternative,
any such instruction would have been inappropriate. See Commonwealth
v. Nguien, 217 A.3d 423 (Pa. Super. 2019) (Table). Nguien filed a petition
for allowance of appeal which was denied by our Supreme Court on October
18, 2019. See id., 218 A.3d 856 (Pa. 2019) (Table).
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8 On April 26, 2017, the court ordered Nguien be assessed by the state Sexual
Offenders Assessment Board to determine whether he is a sexually violent
predator (SVP). On November 17, 2017, Nguien was determined to be an
SVP; however, on appeal, our Court deemed that designation unconstitutional
and an illegal sentence. See Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017); Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017). Our
Court vacated the SVP status and remanded the matter to the trial court to
issue appropriate notice to Nguien of his registration obligations under
Megan’s Law, 42 Pa.C.S.A. § 9799.23.
9 On October 5, 2017, Nguien filed a pro se motion for reconsideration of
sentence. On October 12, 2017, Alan J. Tauber, Esquire, entered his
appearance and filed a Pa.R.A.P. 1925(b) statement of errors complained of
on appeal on behalf of Nguien.
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On January 30, 2020, Nguien filed the instant pro se PCRA petition.
William Ciancaglini, Esquire, was appointed as PCRA counsel, and, on July 7,
2020, he filed an amended petition.10 On December 8, 2020, the
Commonwealth filed a motion to dismiss Nguien’s PCRA petition without a
hearing. On February 22, 2021, the PCRA court provided Pa.R.Crim.P. 907
notice of its intent to dismiss Nguien’s petition without a hearing. Nguien
responded pro se to the court’s notice, requesting leave to amend his petition
to include a new claim of ineffectiveness of counsel, asking that new PCRA
counsel be appointed, and seeking an evidentiary hearing. See Motion For
Change of Appointed Counsel, 4/1/21 (Nguien requesting new PCRA counsel
be appointed where: he and PCRA counsel had yet to meet; Nguien had
unsuccessfully tried to contact counsel via phone and though multiple letters;
and Nguien told court about counsel’s non-responsiveness and attached his
letters for court to forward to counsel).
On July 21, 2021, PCRA counsel filed an amended petition11 and, on
October 5, 2021, the court issued another Rule 907 notice of its intent to
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10 Nguien also filed a pro se amended PCRA petition on August 24, 2020,
despite the fact that he was represented by PCRA counsel at the time. In
that document, Nguien argued that trial counsel was also ineffective for giving
him “erroneous and unconstitutional statutory information” in convincing him
to reject a plea offer. Declaration in Support of PCRA Amendment, 8/24/20,
at 2.
11Nguien continued to submit pro se filings raising new issues with which he
wished counsel to “supplement his existing petition[.]” See Letter, 9/1/21,
at 1 (including ineffectiveness of trial counsel claims concerning 5 th
(Footnote Continued Next Page)
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dismiss Nguien’s petition without a hearing. On November 19, 2021, the court
dismissed the petition and noted that it “has granted your attorney’s request
to withdraw from this matter.” Order, 11/19/21.
On December 1, 2021, Nguien filed a timely pro se notice of appeal. On
December 7, 2021, the PCRA court ordered Nguien to file a Rule 1925(b)
statement. On December 17, 2021, Nguien filed a motion for extension of
time within which to file his Rule 1925(b) statement.12 The court granted the
motion, ordering Nguien to file his statement on or before January 31, 2022.
On January 3, 2022, Nguien filed a pro se Rule 1925(b) statement.13 On
January 28, 2022, the trial court complied with Rule 1925(a), filing its opinion
in response to Nguien’s Rule 1925(b) statement.14
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amendment rights and lack of objection to failure to give prompt complaint
instruction).
12Nguien requested an extension claiming that on 12/8/21 he was “assaulted
by another inmate . . . and sustained” injuries causing him “blurr[ed] vision,
migraine and headache[s], and discomfort writing or seeing.” Motion for
Extension of Time, 12/17/21, at 1.
13 In that statement, Nguien raised the following three issues: (1) whether
the PCRA court erred by not holding an evidentiary hearing on his
ineffectiveness claims; (2) whether the PCRA court erred when it found no
merit to his ineffectiveness claims regarding (a) trial counsel’s failure to
request a prompt complaint jury instruction; and (b) direct appeal counsel’s
failure to raise and brief the trial court’s denial of a mistrial. See Pro Se Rule
1925(b) Statement, 1/3/22, at 1.
14Nguien filed, with this Court, a 42-page “Concise Statement of Errors
Complained of on Appeal,” dated January 30, 2021. Our Court forwarded that
document to the PCRA judge, the Honorable Gwendolyn N. Bright, who
(Footnote Continued Next Page)
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On May 3, 2022, this Court remanded the matter to the PCRA court “for
a determination as to whether Attorney Ciancaglini requested permission to
withdraw as [PCRA] counsel, and to take further action as required to protect
[Nguien’s] right to appeal, including, but not limited to, determining
[Nguien’s] eligibility for court-appointed counsel for this first PCRA petition.”
Order, 5/3/22. On June 8, 2022, the PCRA court responded that, at a
November 19, 2021 court proceeding,15 Attorney Ciancaglini had requested to
be removed and that the court granted the request.
Initially, we must address the procedural history of this case following
our Court’s May 2022 order. In response to our remand directive, the PCRA
court appointed new PCRA counsel, William Allen Love, Esquire, in an effort
“to avoid any further delay.” PCRA Court Letter, 6/8/22.16 Attorney Love
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deemed the statement “moot” and determined that she would not address it.
See Letter, 2/11/22.
15 The PCRA court characterizes this proceeding as a “PCRA dismissal hearing.”
See PCRA Court Order, 6/8/22. However, it should be noted that this was not
an evidentiary hearing in the sense that term is used under the PCRA and our
rules of criminal procedure. See Pa.R.Crim.P. 908. Neither Nguien nor
witnesses were present at the proceedings and no evidence or exhibits were
admitted. The PCRA judge stated at the proceeding that the parties are “here
for formal dismissal today” and that she had “reviewed the matter and [] did
send [Pa.R.Crim.P.] 907 notice [and t]here’s been no response.” PCRA
Proceeding, 11/19/21, at 4. Attorney Ciancaglini then stated, in response,
“All I ask is that I be removed as counsel at this time and for any future
proceedings.” Id. The PCRA judge then concluded the matter after granting
“[f]ormal dismissal and [c]ounsel’s request to be removed[.]” Id.
16 We have no on-the-record determination as to why the PCRA judge
permitted originally-appointed PCRA counsel, Attorney Ciancaglini, to be
(Footnote Continued Next Page)
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entered his appearance on June 27, 2022. Then, on August 8, 2022, this
Court vacated the existing briefing schedule, struck Nguien’s pro se appellate
brief, and directed Attorney Love to file an appellate brief on Nguien’s behalf.17
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removed when it dismissed Nguien’s petition in November 2021. However,
based on the number of letters Nguien wrote to counsel after he was appointed
and before his PCRA petition was dismissed, it is clear there was some
breakdown in the attorney-client relationship, possibly to the point of
abandonment. See infra n.18; see also Commonwealth v. Betts, 240
A.3d 616, 621 (Pa. Super. 2020) (where first-time petitioner “unambiguously
voiced his dissatisfaction with [PCRA counsel’s] representation” and asked to
end their attorney-client relationship in letter, this Court required to raise error
sua sponte and remand for PCRA court to correct mistake); Pa.R.Crim.P.
122(C) (requiring “substantial reasons” to appoint new counsel).
On the other hand, if Attorney Ciancaglini had attempted to withdraw from
representing Nguien in his quest for post-conviction relief, after concluding
there were no issues of arguable merit, counsel was required to properly seek
withdrawal by complying with the dictates of Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) (en banc).
17 Attorney Love complied with that request, filing a brief that raises the
following issues:
(1) Whether the PCRA court abused its discretion when it did
not hold an evidentiary hearing when [Nguien] presented
two (2) claims of ineffective assistance of counsel [that,] if
resolved in his favor, would require a new trial.
(2) Whether the PCRA court erred where it found no merit in
either of [Nguien’s] claims of ineffective assistance of
counsel [where]:
a. Trial counsel was ineffective where a “prompt
complain[t]” jury instruction was not requested.
b. Direct appeal counsel was ineffective for failing to raise
and brief the [t]rial [c]ourt’s abuse of discretion in
denying a mistrial for a Fifth Amendment violation.
Appellant’s Brief, at 6.
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See Order, 8/8/22.18 However, due to the fact that Nguien was entitled to
have new PCRA counsel appointed for his first petition, see Pa.R.Crim.P.
904(C),19 Nguien should have been afforded the opportunity to have Attorney
Love prosecute his PCRA petition, which includes the right to have a new
amended petition filed on his behalf, fully developing any potentially
meritorious claims after consulting with Nguien. “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 Commonwealth v. Bennett, 930 A.2d 1264, 1273 (Pa. 2007)
(“[PCRA] petitioners must be given the opportunity for the presentation of
claims at a meaningful time and in a meaningful manner.”); see also
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18 The record evidences that Nguien repeatedly averred counsel abandoned
him over the course of his collateral representation. On February 24, 2021,
Nguien sent a letter to the clerk of the trial court indicating that PCRA counsel
was not effective where he had not responded to Nguien’s multiple attempts
to communicate with him. Thus, Nguien requested that Judge Bright “provide
[him] with [] counsel who is effective [] and will communicate with [him].”
Letter, 2/24/21, at 1. On March 3, 2021, Nguien sent the clerk of the trial
court another letter asking the PCRA judge to delay her decision on his petition
until he receives a response regarding issues he wishes to raise and also that
the court appoint him “counsel who is effective[] and follows the
Rules of Professional Conduct [by] communicat[ing] with his client;
inform[ing] his client of the issues being raised; and [] provid[ing] his
client of his legal documents for review[.]” Letter, 3/3/21, at 1 (emphasis
added). On March 11, 2021, Nguien asked the trial court to give him an
additional “90 days to find representation[] and to respond to Pa.R.Crim.P.
905 or Pa.R.Crim.P. 907 [notice.]” Motion for Extension of Time, 3/11/21.
19 See also Pa.R.Crim.P. 904(F)(2) (“[T]he appointment of counsel shall be
effective throughout the post-conviction collateral proceedings,
including any appeal from disposition of the petition for post-conviction
collateral relief.”) (emphasis added).
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Commonwealth v. Perez, 799 A.3d 848, 852 (Pa. Super. 2002) (“[W]here
an appellant’s right to representation has been effectively denied by the action
of court or counsel, the petitioner is entitled to a remand to the PCRA court
for the appointment of counsel to prosecute the PCRA petition.”); Betts,
supra at 624-25 (where PCRA court failed to respond properly to petitioner’s
assertions of PCRA counsel’s ineffectiveness, coupled with counsel’s inability
to meaningfully represent first-time petitioner once allegations advanced,
petitioner’s right to effective assistance of counsel collectively undermined).
Given the time constraints within which to file a petition under the PCRA,
“a defendant’s first PCRA petition . . . may well be the defendant’s sole
opportunity to seek redress for [trial counsel’s] errors and omissions . . . [and,
w]ithout the input of an attorney, important rights and defenses may forever
be lost.” Commonwealth v. Robinson, 970 A.2d 455, 458 (Pa. Super.
2009) (en banc). See also Betts, supra at 625 (on remand, where Court
directed new PCRA counsel be appointed, “newly-appointed counsel shall: (1)
review [petitioner’s] pro se objections concerning [prior counsel’s]
ineffectiveness; (2) file supplemental briefing limited to discussing the merits
of those claims within a reasonable time frame; and (3) continue to represent
[petitioner] for the duration of these PCRA proceedings”).20
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20 The Commonwealth shall have an opportunity to file a response to any
supplemental filings from Nguien. Thereafter, the PCRA court shall proceed
in accordance with the proper procedure in ruling on a PCRA petition. Betts,
supra at 625.
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Accordingly, we remand this case to the PCRA court to permit Attorney
Love leave to file an amended petition on Nguien’s behalf, fully developing any
potentially meritorious claims after consulting with Nguien,21 or comply with
the dictates of Turner/Finley if he seeks to withdraw from PCRA
representation. Perez, supra.22
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.23
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2023
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21 See supra at n.10-11 (noting Nguien’s several pro se filings raising new
issues he wished PCRA counsel would include in supplemental petition).
22We offer no opinion regarding the merits of any of the PCRA claims Nguien
has raised in his pro se petitions or amended/supplemental petitions.
23 Were we to accept new PCRA counsel’s appellate brief and “reach[] the
merits of the . . . claim[s]” therein, we would be “disregarding the proceedings
in the PCRA court [and] act[ing] as a secondary PCRA court.” Kenney, supra
at 1165.
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