Com. v. Carr, C.

• Court: Superior Court of Pennsylvania
• Decided: January 6, 2023
• Docket: 5 WDA 2022
• Status: Unpublished

Opinion

J-S29015-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHESTER CARR : : Appellant : No. 5 WDA 2022

Appeal from the PCRA Order Entered November 30, 2021 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000788-2018

BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.: FILED: JANUARY 6, 2023

Chester Carr appeals from the order entered in the Erie County Court of

Common Pleas on November 30, 2021, dismissing his petition filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Carr’s

court-appointed counsel seeks to withdraw pursuant to the Pennsylvania

Supreme Court’s recent holding in Commonwealth v. Bradley, 261 A.3d

381 (Pa. 2021). After careful review, vacate the PCRA court’s order, grant

counsel leave to withdraw, and remand for further proceedings consistent with

this memorandum.

A previous panel of this Court set forth the factual background of this

case as follows:

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S29015-22

[Carr’s] charges arose on April 27, 2017, when the victim … purchased heroin laced with [f]entanyl from [Carr] and died from an overdose. … At the time, [Carr] was incarcerated at the Erie County Prison. However, he used the prison telephone system [to direct his 16-year old girlfriend] where she could find [Carr’s] stash of drugs, prepare the drugs for delivery, contact [the victim,] and deliver the drugs to her. [Carr’s girlfriend] drove to [the victim’s] house and delivered the drugs [pursuant to Carr’s] instructions.

Commonwealth v. Carr, 227 A.3d 11, 12 (Pa. Super. 2020) (citation

omitted).

On August 14, 2018, following a two-day trial, a jury found Carr guilty

of conspiracy to commit drug delivery resulting in death, drug delivery

resulting in death, conspiracy to commit possession with the intent to deliver,

possession with intent to deliver, possession, paraphernalia, recklessly

endangering another person, and criminal use of a communication facility. The

trial court imposed sentence, and Carr filed a timely post-sentence motion to

modify his sentence, which the trial court denied. On January 21, 2020, we

affirmed Carr’s judgment of sentence on direct appeal.

On January 14, 2021, Carr filed a timely pro se PCRA petition. Counsel

was appointed and filed a supplemental PCRA petition. Evidentiary hearings

were held in April 2021 and again in June 2021. On November 30, 2021, the

PCRA court entered an order and opinion denying the PCRA petition. PCRA

counsel filed a timely notice of appeal on Carr’s behalf.

Two months later, Carr filed a pro se motion for appointment of new

counsel in this Court, asserting his PCRA counsel was ineffective. PCRA counsel

-2- J-S29015-22

then filed a petition for leave to withdraw as counsel and requested a remand

for appointment of alternative appellate counsel. PCRA counsel conceded that

Carr had asserted claims of ineffective assistance against him, implicating our

Supreme Court’s holding in Bradley. Our Court deferred consideration of the

petition to withdraw to the merits panel.

PCRA counsel subsequently filed a brief on Carr’s behalf. The brief did

not include any mention of the claims of PCRA counsel ineffectiveness.

A few days later, Carr filed a pro se application for relief with this Court,

seeking new counsel not associated with PCRA counsel. Specifically, he

asserted there was a conflict of interest with current PCRA counsel since

counsel had filed a petition to withdraw. This Court denied the application for

relief based on counsel filing a brief on Carr’s behalf.

A month later, Carr filed a pro se motion for application of enlargement

of time to file a supplemental amended brief, in which Carr asserted the

counseled brief was inadequate and that Carr had issues of arguable merit

that counsel failed to include in the initial brief. This Court again denied relief

based on counsel filing a brief on Carr’s behalf.

Initially, we address Carr’s allegations of ineffective assistance of PCRA

counsel. An indigent person is entitled to the appointment of counsel for

proceedings on a first PCRA petition. See Commonwealth v. Albert, 561

A.2d 736, 738 (Pa. 1989). “In this context, the right to counsel conferred on

initial PCRA review means an enforceable right to the effective assistance of

-3- J-S29015-22

counsel.” Commonwealth v. Betts, 240 A.3d 616, 621 (Pa. Super. 2020)

(citations and internal quotation marks omitted). A petitioner's “rule-based

right to effective counsel extends throughout the entirety of his first PCRA

proceeding.” Id. at 623.

To obtain review of a claim that PCRA counsel provided ineffective

assistance, a PCRA petitioner is required to raise the challenge at the first

opportunity to do so. See Bradley, 261 A.3d at 401. Specifically, “a PCRA

petitioner may, after a PCRA court denies relief, and after obtaining new

counsel or acting pro se, raise claims of PCRA counsel’s ineffectiveness at the

first opportunity to do so, even if on appeal.” Id. at 401.

Here, Carr raised his challenge to PCRA counsel's representation for the

first time in a pro se motion filed a little over a month after counsel filed a

notice of appeal on his behalf. When Carr asserted PCRA counsel's

ineffectiveness, a conflict was created with PCRA counsel. This conflict was

further reinforced by counsel’s acknowledgment of Carr’s claims against him,

and request to withdraw as counsel. Nevertheless, this Court accepted PCRA

counsel’s brief filed on Carr’s behalf, which wholly ignored Carr’s claims of

ineffectiveness of PCRA counsel.

We conclude that PCRA counsel has acted appropriately in seeking

withdrawal and a remand. Carr could not rely on PCRA counsel to assist him

in pursuing these ineffectiveness claims because counsel cannot argue their

own ineffectiveness. See Betts, 240 A.3d at 623 (citing Commonwealth v.

-4- J-S29015-22

Spotz, 18 A.3d 244, 329 n.52 (Pa. 2011)) (“[C]ounsel cannot argue his or

her own ineffectiveness”). Nor was Carr able to raise these claims with

alternate counsel or pro se, see Bradley, 261 A.3d at 401, as this Court

denied him alternate counsel, and denied him the ability to file a pro se

supplemental brief.

Under these circumstances, we must remand for the PCRA court to

appoint Carr new counsel to assist Carr in raising his claims that PCRA counsel

was ineffective. This remand necessarily includes the opportunity for Carr to

further develop these claims before the PCRA court and allow the court to rule

on these claims in the first instance. See Bradley, 261 A.3d at 402. We

remind all parties that any claims of PCRA counsel ineffectiveness must

“provide more than mere boilerplate assertions[.]” See id.

Order vacated. Motion to withdraw as counsel granted. Case remanded

with instructions. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/6/2023

-5- J-S29015-22

-6-