Com. v. Black, T.

• Court: Superior Court of Pennsylvania
• Decided: March 9, 2015
• Docket: 715 WDA 2014
• Status: Unpublished

Opinion

J-S13011-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

THOMAS JAMES BLACK,

Appellant No. 715 WDA 2014

Appeal from the PCRA Order Entered March 26, 2014 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001125-2012

BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 09, 2015

Appellant, Thomas James Black, appeals pro se from the post-

conviction court’s March 26, 2014 order denying his timely petition for relief

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

After careful review, we are compelled to vacate that order and remand for

further proceedings.

On September 18, 2012, Appellant was convicted by a jury of

attempted murder, aggravated assault, and other related charges. On

November 26, 2012, he was sentenced to an aggregate term of 25 to 50

years’ incarceration. Appellant filed a timely motion for reconsideration of

his sentence, which was denied. He did not file a direct appeal with this

Court. J-S13011-15

On January 1, 2014, Appellant filed a counseled PCRA petition.

Appellant was represented by privately retained counsel, Adam J. Williams,

Esq. In the petition, Appellant requested a new trial, alleging that he

discovered two witnesses who would each proffer ostensibly exculpatory

testimony on Appellant’s behalf. The PCRA court directed the

Commonwealth to file a response to Appellant’s petition, and the

Commonwealth complied. On February 21, 2014, Appellant filed a pro se

document entitled, “Response and Counterstatement to Conflict of Interest

Commonwealth’s Response to Defendant’s Petition for Post Conviction

Collateral Relief.” On March 26, 2014, the PCRA court issued a Pa.R.Crim.P.

907 notice of its intent to dismiss Appellant’s petition, and an opinion

explaining its reasons for that dismissal. Appellant did not file a response to

the court’s Rule 907 notice and, on April 23, 2014, the PCRA court issued an

order dismissing his petition.

On April 24, 2014, Appellant filed a pro se notice of appeal. The Office

of Clerk of Courts of Erie County forwarded a copy of Appellant’s pro se

notice of appeal to Attorney Williams, who was still Appellant’s counsel of

record. See Docket Entry 27, 4/25/14 (“Case Correspondence – Rule 576

letter to Atty Williams in re: Notice of Appeal”). Apparently, Attorney

Williams sent a letter to the Clerk of Courts stating that he no longer

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represented Appellant.1 See Docket Entry 28, 4/30/14 (“Case

Correspondence from Attorney Adam Williams informing us that he is no

longer representing the defendant”). Accordingly, the Clerk of Courts

accepted Appellant’s pro se notice of appeal and forwarded a copy thereof to

this Court. See id.

Appellant is now before this Court pro se. However, there is no

indication in the certified record that Attorney Williams sought (or was

granted) leave of court to withdraw his representation of Appellant. See

Pa.R.Crim.P. 120(A)(4) (“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(B)(1) (“Counsel for a defendant may not withdraw his or

her appearance except by leave of court.”). The Comment to Rule 120

states that “counsel must file a motion to withdraw in all cases, and

counsel’s obligation to represent the defendant, whether retained or

appointed counsel, remains until leave to withdraw is granted by the court.”

Comment to Rule 120 (emphasis added) (citing Commonwealth v.

Librizzi, 810 A.2d 692, 693 (Pa. Super. 2002)).

We also emphasize that it is unclear from the record whether Appellant

is currently indigent and, therefore, entitled to court-appointed counsel to

____________________________________________

1 That letter is not included in the certified record.

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represent him in the current appeal. See Pa.R.Crim.P. 904(C) (“[W]hen an

unrepresented defendant satisfies the judge that the defendant is unable to

afford or otherwise procure counsel, the judge shall appoint counsel to

represent the defendant on the defendant’s first petition for post-conviction

collateral relief.”); Commonwealth v. Stout, 978 A.2d 984, 988 (Pa.

Super. 2009) (“Generally speaking, an indigent petitioner is entitled to the

appointment of counsel on his first post-conviction attack of his

conviction.”); Commonwealth v. Jackson, 965 A.2d 280, 283 (Pa. Super.

2009) (stating that the indigent petitioner’s right to PCRA counsel extends

through the appeal process).

We acknowledge that in Appellant’s pro se brief, he does not argue

that he is entitled to court-appointed counsel, or raise any issue regarding

Attorney Williams’ failure to represent him on appeal. Nevertheless, we

decline to overlook Attorney Williams’ failure to properly withdraw his

representation of Appellant as the Pennsylvania Rules of Criminal Procedure

require. More importantly, we are compelled to raise the issue of Appellant’s

representation sua sponte to ensure that he is afforded the right to court-

appointed PCRA counsel, if he is so entitled. See Commonwealth v.

Albrecht, 720 A.2d 693, 699 (Pa. 1998) (citation omitted) (stating that

“[t]he denial of PCRA relief cannot stand unless the petitioner was afforded

the assistance of counsel”); Commonwealth v. Stossel, 17 A.3d 1286,

1290 (Pa. Super. 2011) (holding “that where an indigent, first-time PCRA

petitioner was denied his right to counsel - or failed to properly waive that

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right – this Court is required to raise this error sua sponte and remand for

the PCRA court to correct that mistake). Accordingly, we vacate the PCRA

court’s order and remand for further examination of these issues by the

PCRA court.

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/9/2015

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