Com. v. Chambers, M.

• Court: Superior Court of Pennsylvania
• Decided: March 11, 2025
• Docket: 1333 EDA 2024
• Status: Unpublished

Opinion

J-S44004-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MAURICE LEROY CHAMBERS SR. : : Appellant : No. 1333 EDA 2024

Appeal from the PCRA Order Entered April 24, 2024 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0004073-2017

BEFORE: NICHOLS, J., MURRAY, J., and LANE, J.

MEMORANDUM BY NICHOLS, J.: FILED MARCH 11, 2025

Appellant Maurice Leroy Chambers, Sr., appeals pro se from the order

that dismissed his petition filed pursuant to the Post Conviction Relief Act 1

(PCRA) and granted the motion to withdraw filed by Appellant’s prior counsel,

Thomas P. McCabe, Esq., (Attorney McCabe). After careful review of the

record and procedural history of this matter, we vacate the order and remand

with instructions.

A prior panel of this court summarized the underlying facts in this case

as follows:

On May 24, 2018, [Appellant] entered a negotiated guilty plea to robbery and possessing an instrument of crime. He was sentenced the same day, pursuant to the negotiated plea agreement, to an aggregate eleven and one-half to twenty-three

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1 42 Pa.C.S. §§ 9541-9546. J-S44004-24

years’ incarceration, followed by five years’ probation. [Appellant] did not file a post-sentence motion or a direct appeal.

After filing various pro se motions and [a PCRA petition,] the [PCRA] court entered an order, granting in part and denying in part [Appellant’s] PCRA petition, and reinstated [Appellant’s] direct appeal rights nunc pro tunc, due to plea counsel’s failure to file a requested direct appeal. . . .

Appellate counsel was appointed and filed a timely notice of appeal [nunc pro tunc]. Subsequently, appellate counsel filed an Anders2 brief and a petition to withdraw as counsel[.]

Commonwealth v. Chambers, 3547 EDA 2019, 2020 WL 5624161, at *1

(Pa. Super. filed Sept. 18, 2020) (Chambers I) (unpublished mem.). The

Chambers I Court affirmed Appellant’s judgment of sentence and granted

appellate counsel’s motion to withdraw. See id.

On November 9, 2021, Appellant filed what was chronologically his

second PCRA petition. However, because Appellant’s first PCRA petition

resulted in the restoration of Appellant’s direct appeal rights nunc pro tunc,

the PCRA court properly treated Appellant’s second PCRA petition as a first

PCRA petition. See Commonwealth v. K. Turner, 73 A.3d 1283, 1286 (Pa.

Super. 2013) (stating that “when a PCRA petitioner’s direct appeal rights are

reinstated nunc pro tunc in his first PCRA petition, a subsequent PCRA petition

will be considered a first PCRA petition for timeliness purposes”). The PCRA

court ultimately dismissed Appellant’s November 9, 2021 PCRA petition

2 See Anders v. California, 386 U.S. 738 (1967) (providing the procedure

for counsel to withdraw on direct review); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (same).

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without a hearing. However, on appeal, a panel of this Court vacated the

order dismissing the PCRA petition, found that Appellant had effectively been

denied his right to counsel, remanded for the appointment of new counsel,

and directed the PCRA court to “afford Appellant’s newly-appointed counsel

reasonable opportunity to review the record, confer with Appellant, and file

pleadings which counsel deems appropriate.” Commonwealth v.

Chambers, 1961 EDA 2022, 2023 WL 2319451, at *4 (Pa. Super. filed Mar.

2, 2023) (Chambers II) (unpublished mem.). The Chambers II Court

explained:

[W]hen an indigent, first-time PCRA petition is denied the right to counsel, this Court “is required to raise this error sua sponte and remand for the PCRA court to correct that mistake.” Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011) (emphasis added). Pertinently, “the right to counsel conferred on initial PCRA review means ‘an enforceable right’ to the effective assistance of counsel.” See Commonwealth v. Holmes, 79 A.3d 562, 583 (Pa. 2013) (emphasis added) (quoting Commonwealth v. Albrecht, 720 A.2d 693, 699-700 (Pa. 1998)). The Pennsylvania Supreme Court has stated:

An indigent petitioner has the right to appointment of counsel to assist in prosecuting a first PCRA petition. Where that right has been effectively denied by the action of court or counsel, the petitioner is entitled to remand to the PCRA court for appointment of counsel to prosecute the PCRA petition. 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 also Commonwealth v. Cox, 204 A.3d 371, 390 (Pa. 2019) (affirming Kenney for the proposition that “remand for appointment of counsel is an appropriate remedy when the right to appointment [of] counsel has been effectively denied”).

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Chambers II, 2023 WL 2319451 at *3–4.

On remand, the PCRA court appointed Attorney McCabe to represent

Appellant. See PCRA Ct. Order, 3/3/23. On May 1, 2023, Attorney McCabe3

filed a Turner/Finley4 letter and petition to withdraw. However, before ruling

on Attorney McCabe’s petition to withdraw the PCRA court appointed Scott J.

Werner, Jr., Esq., to represent Appellant, and the PCRA court specifically

stated that the appointment of Attorney Werner “supersedes any prior order

whereby Thomas P. McCabe, Esquire[,] was appointed to represent

[Appellant] in the above-captioned matter.”5 PCRA Ct. Order, 12/7/23 at 1

n.2.

There is no indication in the record that Attorney Werner filed anything

on Appellant’s behalf such as an amended PCRA petition or Turner/Finley

letter and petition to withdraw following his appointment on December 7,

2023. Despite appointing new counsel, on March 28, 2024, the PCRA court

gave notice of its intent to dismiss Appellant’s PCRA petition and stated that:

[U]pon court appointed counsel’s “Petition to Withdraw as Counsel,” filed on May 1, 2023, after an independent review of the record, pursuant to standards set forth in Commonwealth v. ____________________________________________

3During the pendency of this case, Attorney McCabe was elected to the Chester County Court of Common Pleas.

4 See Commonwealth v. G. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998) (en banc) (providing the procedure for counsel to withdraw on collateral review).

5 See Pa.R.Crim.P. 904(B) (stating that “[w]hen counsel is appointed, the filing of the appointment order shall enter the appearance of appointed counsel.”).

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Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), and for the reasons set forth in the accompanying memorandum, this court finds that there are no genuine issues concerning any material fact, that [Appellant] is not entitled to post-conviction collateral relief, and that no purpose would be served by any further proceedings. Accordingly, pursuant to Pa.R.Crim.P. 907(1), [Appellant] is hereby given NOTICE of the court’s intent to dismiss [Appellant’s] PCRA petition filed November 9, 2021 without a hearing.

Rule 907 Notice, 3/28/24 (some formatting altered). However, the list of

service in the PCRA court’s Rule 907 notice did not name either Attorney

McCabe or Attorney Werner, and it listed only “Court Appointed Counsel.” Id.

Therefore, it is unclear if Attorney Werner received the Rule 907 notice. On

April 24, 2024, the PCRA court dismissed Appellant’s PCRA petition and

granted Attorney McCabe’s May 1, 2023 petition to withdraw, despite Attorney

Werner’s appointment superseding Attorney McCabe’s appointment and

despite the fact that Attorney Werner did not file a petition to withdraw. This

timely pro se appeal followed.

Before we reach the issues raised in Appellant’s pro se brief, we first

address whether the PCRA court, Attorney McCabe, and Attorney Werner

complied with Chambers II. We note that Appellant’s November 9, 2021

PCRA petition appears to be facially untimely because Appellant’s judgment of

sentence became final for PCRA purposes on October 18, 2020, thirty days

after this Court affirmed Appellant’s judgment of sentence on September 18,

2020,6 and the time for filing a petition for allowance of appeal in our Supreme

6 See Chambers I, 2020 WL 5624161 at *1.

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Court expired. As such, Appellant had one year, or until October 18, 2021, to

file a timely PCRA petition unless he could prove that an exception to the PCRA

time bar applied. See 42 Pa.C.S. § 9545(b)(1), (3). However, as noted,

because Appellant’s November 9, 2021 PCRA petition was considered a first

PCRA petition,7 the Chambers II Court correctly remanded for the

appointment of counsel and to afford newly appointed counsel an opportunity

to review the record, confer with Appellant, and file appropriate pleadings.

See Chambers II, 2023 WL 2319451 at *4.

Importantly, untimeliness is irrelevant for purposes of entitlement to the

appointment of counsel on a first PCRA petition, and this Court has held that

a PCRA petitioner has an absolute right to appointed counsel for a first PCRA

petition, even if that PCRA petition is facially untimely. See Commonwealth

v. Evans, 866 A.2d 442, 444 (Pa. Super. 2005); Commonwealth v.

Guthrie, 749 A.2d 502, 504 (Pa. Super. 2000); Commonwealth v.

Ferguson, 722 A.2d 177, 179 (Pa. Super. 1998). “[A]n indigent petitioner,

who files his first PCRA petition, is entitled to have counsel appointed to

represent him during the determination of whether any of the exceptions to

the one-year time limitation apply.” Commonwealth v. Smith, 818 A.2d

494, 499 (Pa. 2003); see also Pa.R.Crim.P. 904(E) (stating that that “[t]he

7 See K. Turner, 73 A.3d at 1286 (when a PCRA petitioner’s direct appeal rights are reinstated nunc pro tunc in his first PCRA petition, a subsequent PCRA petition will be considered a first PCRA petition for timeliness purposes).

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judge shall appoint counsel to represent a defendant whenever the interests

of justice require it.”).

As the Chambers II Court explained, Appellant was entitled to have

counsel represent him in the litigation of his first PCRA petition. See

Chambers II, 2023 WL 2319451 at *4; Evans, 866 A.2d at 444; Guthrie,

749 A.2d at 504; Ferguson, 722 A.2d at 179. See also Stossel, 17 A.3d at

1290; Smith, 818 A.2d at 499. In order to afford Appellant his right to

counsel as noted in Chambers II, we conclude that we must vacate and

remand for further proceedings. Despite the directives from Chambers II,

Appellant has not yet had counsel address the timeliness of his November 9,

2021 PCRA petition or “prosecute the PCRA petition” and protect his rights as

directed by Chambers II. See also Smith, 818 A.2d at 499; Pa.R.Crim.P.

904(E). Although Attorney McCabe filed a Turner/Finley letter and petition

to withdraw, Attorney McCabe was no longer Appellant’s counsel of record

after the PCRA court appointed Attorney Werner on December 7, 2023.

However, the record does not indicate that Attorney Werner agreed with

Attorney McCabe that there were no meritorious issues. Further, Attorney

Werner did not file an amended PCRA petition, petition to withdraw, or file any

documents addressing any aspects of Appellant’s November 9, 2021 PCRA

petition and may have abandoned Appellant. We emphasize that once counsel

has entered an appearance on the appellant’s behalf, counsel is obligated to

continue representation until the case is concluded or counsel is granted leave

of court to withdraw. Commonwealth v. Willis, 29 A.3d 393, 397 (Pa.

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Super. 2011); see also Commonwealth v. Brown, 836 A.2d 997, 999 (Pa.

Super. 2003) (remanding for appointment of counsel where petitioner was

represented by court-appointed counsel before PCRA court but was effectively

abandoned by counsel). Further, neither Attorney McCabe, Attorney Werner,

nor the PCRA court ever addressed the timeliness of the November 9, 2021

PCRA petition and the potential jurisdictional implications. On this record, we

cannot conclude that Attorney McCabe, Attorney Werner, or the PCRA court

have fully complied with the mandate from Chambers II.

We reiterate that although Appellant’s November 9, 2021 PCRA petition

appears to be untimely, Appellant is still entitled to appointed counsel for his

first PCRA petition, even if the petition is facially untimely. See Evans, 866

A.2d at 444; Guthrie, 749 A.2d at 504; Ferguson, 722 A.2d at 179.

Additionally, Appellant is entitled to have counsel represent him to determine

whether any exception to the PCRA time bar applied. See Smith, 818 A.2d

at 499. For these reasons, we conclude that Appellant has effectively been

denied counsel throughout the collateral review process despite this Court’s

directives in Chambers II, therefore we determine that it is in the interest of

justice to vacate the PCRA court’s order dismissing Appellant’s November 9,

2021 PCRA petition. We remand this matter for the PCRA court to determine

whether Attorney Werner has abandoned Appellant, or that his appointment

as counsel remains effective. Accordingly, if appropriate, the PCRA court may

appoint new PCRA counsel. PCRA counsel, be it, Attorney Werner or newly

appointed counsel is directed to correspond with Appellant and file the

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appropriate pleadings8 as contemplated by this Court in Chambers II,

including addressing the timeliness of the November 9, 2021 PCRA petition

and any applicable exceptions. See Chambers II, 2023 WL 2319451 at *4;

Evans, 866 A.2d at 444; Guthrie, 749 A.2d at 504; Ferguson, 722 A.2d at

179; see also Stossel, 17 A.3d at 1290; Smith, 818 A.2d at 499;

Pa.R.Crim.P. 904(E).

Order vacated. Case remanded with instructions. Jurisdiction

relinquished.

Date: 3/11/2025

8 E.g., an amended PCRA petition or a Turner/Finley letter and a petition to

withdraw.

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