Com. v. Davis, T.

• Court: Superior Court of Pennsylvania
• Decided: March 1, 2024
• Docket: 393 WDA 2023
• Status: Unpublished

Opinion

J-A03012-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TERRANCE WILLIAM DAVIS, JR. : : Appellant : No. 393 WDA 2023

Appeal from the PCRA Order Entered March 20, 2023 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0001642-2018

BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY BOWES, J.: FILED: March 1, 2024

Terrance William Davis, Jr. appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”). In this

Court, he asks us to remand the matter to the PCRA court so that he may

develop claims of ineffective assistance of PCRA counsel. Concluding that

Appellant has established that remand is warranted pursuant to

Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), we vacate the order

dismissing his PCRA petition and remand for proceedings consistent with this

memorandum.

We begin with the following background, gleaned from the certified

record and a prior memorandum from this Court. “[O]n January 30, 2019,

Appellant entered an open guilty plea to three counts of aggravated assault

related to his spitting on and striking several corrections officers.”

Commonwealth v. Davis, 273 A.3d 1048, 2022 WL 420173, at *1 J-A03012-24

(Pa.Super. 2022) (non-precedential decision) (cleaned up). On April 26,

2019, the trial court sentenced him to an aggregate period of incarceration of

ten to thirty years.

Appellant filed a PCRA petition and, ultimately, the court reinstated his

direct appeal rights nunc pro tunc and appointed Corrie Woods, Esquire, to

represent him. Appellant filed a direct appeal to this Court challenging his

guilty plea and the discretionary aspects of his sentence. We deemed both

issues waived because he failed to preserve them in the trial court. On July

12, 2022, our Supreme Court denied Appellant’s petition for allowance of

appeal. He did not seek further review of that decision.

On August 15, 2022, Appellant timely filed pro se the PCRA petition at

issue in this appeal.1 The PCRA court again appointed Attorney Woods, who

filed a petition to withdraw pursuant to Commonwealth v. Turner, 544 A.2d

927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.

1988) (en banc). On February 21, 2023, the PCRA court issued notice of its

intent to dismiss Appellant’s PCRA petition without a hearing and granted

Attorney Woods’s petition to withdraw. In lieu of a response, Appellant

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1 Insofar as there are references in the record and the briefs to this being Appellant’s second PCRA petition, we observe that because Appellant’s first PCRA petition resulted in reinstatement of his direct appeal rights nunc pro tunc, the 2022 petition technically counts as his first PCRA petition. 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 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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purported to prematurely appeal the PCRA court’s decision. Thereafter, the

PCRA court dismissed Appellant’s PCRA petition.

Appellant pro se filed another notice of appeal, which was docketed in

this Court. The PCRA court appointed counsel and issued a defective order to

file a concise statement pursuant to Pa.R.A.P. 1925(b). Ultimately, the PCRA

court appointed Timothy Lyon, Esquire to represent Appellant for purposes of

this appeal, and he filed an amended notice on Appellant’s behalf. After being

granted an extension, Appellant filed a Rule 1925(b) concise statement

alleging, for the first time, that Attorney Woods rendered ineffective

assistance in representing Appellant in the underlying PCRA proceedings.

Specifically:

Attorney Woods rendered ineffective assistance of counsel where:

(a) in his review of [Appellant’s] file, he overlooked correspondence between [Appellant] and [plea counsel] attached hereto as Exhibit A,[2] and

(b) he failed to advance and/or develop a [PCRA] claim on [Appellant’s] behalf based on Exhibit A that plea and/or sentencing counsel provided ineffective assistance by:

(i) misleading and/or failing to fully inform [Appellant] as to the nature, content, and/or impact of the open plea agreement to the extent that the entry of

2 Exhibit A comprises two letters dated after Appellant’s plea but before his

sentencing hearing. The first letter is from Appellant to his trial attorney, and within it Appellant asks for a sentence of two and one-half to five years of incarceration with concurrent probation. The second letter is a response from plea counsel, indicating that the Commonwealth agreed not to seek more than two years of incarceration as part of the open plea agreement.

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[Appellant’s] guilty plea was not knowing, intelligent, or voluntary; and/or

(ii) failing (A) to state the full nature of the open plea agreement on the record during [Appellant’s] guilty plea and/or sentencing proceedings and (B) to move to (x) withdraw [Appellant’s] guilty plea after sentencing, (y) modify [Appellant’s] sentence, or (z) enforce the plea agreement.

Pa.R.A.P. 1925(b) Statement, 5/25/23, at unnumbered 3.

Based upon these claims, Appellant requested that the matter be

remanded for the development of his ineffective assistance of PCRA counsel

claims pursuant to Bradley. The PCRA court issued a Rule 1925(a) opinion,

“concur[ring] with Appellant’s request that the instant matter be remanded

from this Honorable Court as contemplated in Bradley[,]” because “[s]uch

remand would allow Appellant, and the court, to develop a record as it pertains

to his claim of ineffective assistance of PCRA counsel, as well as permit

Appellant to advance his claim through an amended PCRA petition.” PCRA

Court Opinion, 5/30/23, at 4 (cleaned up). On appeal, Appellant presents a

single issue for our consideration:

Whether the order denying [Appellant] PCRA relief should be vacated and this matter remanded to the PCRA court to permit [Appellant] to file an amended PCRA petition alleging the ineffective assistance of his PCRA counsel for the failure to advance and to develop claims of plea and sentencing counsel’s ineffective assistance.

Appellant’s brief at 4.3 ____________________________________________

3 In its letter brief, the Commonwealth suggests that this Court could either

find waiver of all claims because Appellant failed to raise the ineffective- (Footnote Continued Next Page)

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We begin with the legal principles guiding our review. As with all appeals

from PCRA orders, “our standard of review permits us to consider only whether

the PCRA court’s determination is supported by the evidence of record and

whether it is free from legal error.” Commonwealth v. Pridgen, 305 A.3d

97, 101 (Pa.Super. 2023) (cleaned up).

Appellant has invoked Bradley to request a remand to the PCRA court

to litigate his claims that Attorney Woods was ineffective in his stewardship of

Appellant’s 2022 PCRA petition. In Bradley, our Supreme Court “h[e]ld that

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.” 261 A.3d at 401 (cleaned

up). Here, Appellant requested new counsel as soon as Attorney Woods was

permitted to withdraw, current counsel was appointed after the petition was

dismissed, and current counsel raised challenges to Attorney Woods’s

representation in his Rule 1925(b) statement. Accordingly, we conclude that

Appellant properly raised his claims of ineffective assistance of PCRA counsel

at the first opportunity to do so.

While Appellant properly raised these claims, this Court recently

reiterated that “Bradley did not guarantee a PCRA petitioner substantive

review of claims of PCRA counsel’s ineffectiveness, nor did it create an

assistance-of-PCRA-counsel claims in his response to the notice of intent to dismiss or, “in the interests of justice[,]” remand to the PCRA court. See Commonwealth’s brief at 5, 7.

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absolute right to remand for development of those claims.”4 Commonwealth

v. Lawrence, ___ A.3d ___, 2024 WL 221021, at *2 (Pa.Super. Jan. 22,

2024). Rather, when this Court is presented with Bradley claims, we

determine whether remand is appropriate pursuant to the following

guidelines:

In some instances, the record before the appellate court will be sufficient to allow for disposition of any newly-raised ineffectiveness claims. However, in other cases, the appellate court may need to remand to the PCRA court for further development of the record and for the PCRA court to consider such claims as an initial matter. Consistent with our prior case law, to advance a request for remand, a petition would be required to provide more than mere boilerplate assertions of PCRA counsel’s ineffectiveness; however, where there are material facts at issue concerning claims challenging counsel’s stewardship and relief is not plainly unavailable as a matter of law, the remand should be afforded.

Commonwealth v. Parrish, 273 A.3d 989, 1002 (Pa. 2022) (cleaned up).

Presently, it is apparent from Appellant’s brief, Rule 1925(b) statement,

and attached documentation that he is alleging his plea and sentencing

counsel misled him into entering a guilty plea and then failed to take

appropriate remedial measures post-sentencing, and that PCRA counsel was ____________________________________________

4 Additionally, we note that this Court also clarified that “to demonstrate the

propriety of a remand[,]” an appellant must “explain. . . to this Court how further development of the factual record would satisfy all three prongs of [the ineffectiveness] test as to each of prior PCRA counsel’s alleged failings.” Commonwealth v. Lawrence, ___ A.3d ___, 2024 WL 221021, at *3 (Pa.Super. Jan. 22, 2024). Since Lawrence was issued after Appellant filed his brief in this Court, we do not hold Appellant to this standard. Nonetheless, we caution counsel that moving forward he must utilize the appellate brief to present Bradley “claims to this Court as if they were being pled in the PCRA petition itself.” Id.

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ineffective for failing to pursue these purportedly meritorious claims. Thus,

we readily conclude that he has “provide[d] more than mere boilerplate

assertions of PCRA counsel’s ineffectiveness” and instead has demonstrated

that “there are material facts at issue concerning claims challenging counsel’s

stewardship[.]” Parrish, 273 A.3d at 1002 (cleaned up). Since “relief is not

plainly unavailable as a matter of law,” we agree with Appellant, the PCRA

court, and the Commonwealth that remand is warranted in this case. Id.

(cleaned up).

Based on the foregoing, we vacate the order dismissing Appellant’s

PCRA petition and remand for the PCRA court to consider the within claims of

ineffective assistance of PCRA counsel.

Order vacated. Case remanded with instructions. Jurisdiction

relinquished.

3/1/2024

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