Com. v. Frost, M.

• Court: Superior Court of Pennsylvania
• Decided: November 26, 2019
• Docket: 1656 WDA 2018
• Status: Unpublished

Opinion

J-S34022-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL ALLAN FROST : : Appellant : No. 1656 WDA 2018

Appeal from the PCRA Order Entered October 24, 2018 In the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0001288-1999

BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS*, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 26, 2019

Michael Allan Frost appeals from the order dismissing as untimely his

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-9546. Frost’s counsel has submitted an Anders1 Brief and a Motion for

Leave to Withdraw as Counsel. As counsel has not fully complied with the

withdrawal requirements, we deny the request.

Frost pled guilty to three counts of involuntary deviate sexual

intercourse and two counts of endangering welfare of children2 for acts he

committed in 1998 and 1999. On May 19, 2000, the court sentenced Frost to

serve an aggregate of 16 to 32½ years’ imprisonment; the court entered an

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* Retired Senior Judge assigned to the Superior Court.

1 Anders v. California, 386 U.S. 738 (1967).

2 See 18 Pa.C.S.A. §§ 3123(a)(6) and 4304(a), respectively. J-S34022-19

amended sentencing order on June 6, 2000, giving Frost credit for time-

served. At sentencing, the court notified Frost that he would be subject to a

ten-year registration requirement pursuant to Megan’s Law. See N.T.,

5/19/00, at 29. Frost did not file a direct appeal.

Nearly 18 years later, on April 24, 2018, Frost filed his eleventh PCRA

petition. The petition alleged that an application of 42 Pa.C.S.A. §§ 9799.10-

9799.41, known as Subchapter H of the Sexual Offender Registration and

Notification Act (“SORNA”), to Frost’s case would violate the ex post facto

clauses of the state and federal constitutions, and that Frost was entitled to

relief under Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert.

denied sub nom. Pennsylvania v. Muniz, 138 S.Ct. 925 (2018).

The court appointed counsel, who filed an amended petition. In the

amended petition, Frost argued that upon his release, he should be subject to

the registration requirements of the version of Megan’s Law that was in place

at the time he committed his crimes; in the alternative, Frost argued he should

be subject to the recently-enacted Subchapter I of SORNA, 42 Pa.C.S.A. §§

9799.51-9799.75. Frost argued that his petition was timely as he mailed it

from prison within 60 days of the February 21, 2018 amendments to SORNA,

which included the addition of Subchapter I.

Following argument,3 the PCRA court entered Rule 907 notice of its

intention to dismiss Frost’s petition without a hearing due to the petition’s

3 A transcript of the argument is not included in the certified record.

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untimeliness. See Pa.R.Crim.P. 907. The court concluded that the petition did

not qualify as timely on the basis of Muniz, and explained that the registration

requirements under the current version of SORNA would apply to Frost upon

his release. The notice gave Frost 20 days from September 25, 2018, to

respond. Frost filed an untimely pro se response. On October 24, 2018, the

court dismissed the petition.

Frost filed a timely pro se notice of appeal on November 19, 2018.4 The

docket does not reflect whether the court sent a copy of the notice of appeal

to Frost’s counsel. See Pa.R.Crim.P. 576(A)(4). The PCRA court then directed

Frost to file a concise statement of matters complained of on appeal, in an

order stating that Frost was “unrepresented.” See Pa.R.A.P. 1925(b). The

docket does not contain a notation that the court sent a copy of the order to

Frost’s counsel. Frost thereafter filed an untimely pro se Rule 1925(b)

statement.

Meanwhile, after the appeal period had closed, Frost’s counsel,

apparently unaware that Frost had filed a pro se notice of appeal and an appeal

was already pending, petitioned the court for leave to appeal nunc pro tunc.5

In the petition, Frost’s counsel alleged that Frost had asked him within the

4 Although Frost was represented by counsel, a criminal defendant represented by counsel may file a pro se notice of appeal. See Commonwealth v. Williams, 151 A.3d 621, 624 (Pa.Super. 2016). 5We note that the proper procedure for reinstatement of appellate rights nunc pro tunc is through the filing of a PCRA petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1269 (Pa. 2007).

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appeal period to file an appeal but he had failed to do so. The PCRA court,

apparently unaware that an appeal was already pending, denied counsel’s

petition.

Roughly a month later, the court entered an order acknowledging that

Frost had filed a pro se notice of appeal and Rule 1925(b) statement. The

court stated that Frost “has counsel of record” but ordered that Frost “may

continue” to act pro se “with the understanding that if he wishes to have his

attorney act on his behalf, he must file a motion requesting that[,] so that

counsel can be directed to, again, be involved in this matter on behalf of

[Frost].” Order, 1/18/19, at 1. As stated above, Frost’s counsel has filed a

Motion for Leave to Withdraw as Counsel and an Anders brief.

Before we reach counsel’s request to withdraw, we address Frost’s Rule

1925(b) statement, as the failure to file a Rule 1925(b) statement when

ordered to do so by the court waives all issues for appeal, see Pa.R.A.P.

1925(b)(4)(vii). Hybrid representation is prohibited, and as Frost filed a pro

se Rule 1925(b) statement while he was represented by counsel,6 the pro se

statement was a legal nullity. Commonwealth v. Ali, 10 A.3d 282, 293 (Pa.

2010).

6 Although Frost had no right to counsel on his eleventh PCRA petition, see Commonwealth v. Kubis, 808 A.2d 196, 200 (Pa.Super. 2002), a PCRA court may appoint counsel under Pa.R.Crim.P. 904(D) and (E). As the court below saw fit to appoint counsel in this case, counsel was obligated to continue representation until the termination of the case, or the court permitted counsel to withdraw. See Pa.R.Crim.P. 120(B)(1), 122(B)(2).

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Nonetheless, Frost’s failure to file a Rule 1925(b) statement through

counsel did not waive all issues on appeal. The PCRA court did not order Frost’s

counsel to file a Rule 1925(b) statement, and instead directed the order

directly to Frost. As the court failed to direct Frost’s counsel to file a Rule

1925(b) statement, counsel’s failure to file one does not constitute waiver. Cf.

Commonwealth v. Bush, 197 A.3d 285, 287 (Pa.Super. 2018) (finding no

waiver where docket failed to indicate that order to file Rule 1925(b)

statement was served on appellant; collecting cases). We accordingly hold

that Frost is not limited, on appeal, to those issues raised in his pro se Rule

1925(b) statement.

We now turn to counsel’s request to withdraw. The proper filing in

conjunction with a request to withdraw from PCRA representation is a

Turner/Finley7 “no-merit” letter. See Commonwealth v. Wrecks, 931

A.2d 717, 722 (Pa.Super. 2007) (explaining differences between requirements

of withdraw during direct appeal and PCRA representation). In the no-merit

letter, counsel must “[detail] the nature and extent of counsel’s diligent review

of the case, [list] the issues which the petitioner wants to have reviewed,

[explain] why and how those issues lack merit, and [request] permission to

withdraw.” Id. at 721. Counsel must also send to the petitioner (1) a copy of

the no-merit letter, (2) counsel’s petition to withdraw, and (3) “a statement

advising petitioner of the right to proceed pro se or by new counsel.” Id. ____________________________________________

7Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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Counsel seeking to withdraw from appellate representation must advise that

the appellant has the right to proceed pro se or through new counsel

immediately upon counsel’s request to withdraw. See Commonwealth v.

Muzzy, 141 A.3d 509, 512 (Pa.Super. 2016). However, because an Anders

brief provides greater protection, we may accept it in lieu of a no-merit letter.

See Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa.Super. 2011).

Here, counsel advised Frost as follows: “Should the Court decide to

grant my Motion for Leave to Withdraw as Counsel in your case, you do have

the right to proceed pro se (representing yourself) or you may hire counsel of

your own choosing.” See Letter, 3/22/19, at 9 (unpaginated). This advice was

erroneous, as Frost had the immediate right to proceed with the appeal—

whether with new counsel or pro se—once counsel asked this Court for leave

to withdraw. Muzzy, 141 A.3d at 512. We therefore conclude that counsel’s

withdraw request is deficient, and we deny it at this time.

Counsel is hereby instructed to file either an advocate’s brief or a no-

merit letter and request to withdraw within 30 days of the date of this decision.

If counsel does, again, file a request in this Court to withdraw as counsel,

counsel must advise Frost of his immediate right to file an appellate brief pro

se or through retained counsel. In addition, we clarify that the potential issues

on appeal are not limited to those listed in the pro se Rule 1925(b) statement.8

8 We respectfully disagree with the dissent’s view that the errors of the trial court necessitate remand for the filing of a new Rule 1925(b) order.

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Motion for Leave to Withdraw as Counsel denied. Panel jurisdiction

retained.

Judge Colins joins the Memorandum.

Judge Dubow files a Dissenting Statement.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/26/2019

First, a Rule 1925(b) statement is not mandatory; the trial court has discretion whether to order an appellant to file a Rule 1925(b) statement to clarify the errors complained of on appeal. See Pa.R.A.P. 1925(b). When the trial court fails to serve the order on the appellant, the appropriate remedy is to find the appellant has not waived any issues by failing to comply with the order. See, e.g., Bush, 197 A.3d at 287. We accordingly apply this remedy here.

Furthermore, because we remand, and clarify that the issues are not limited to those in the null 1925(b) statement, counsel may file a brief raising any issues of arguable merit. If counsel finds none, and again seeks to withdraw, we shall not grant that request unless we find counsel has conducted a thorough review of the case. See Commonwealth v. Kelsey, 206 A.3d 1135, 1139 (Pa.Super. 2019); Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa.Super. 2012).

Ultimately, although the court erred in failing to notify Frost’s counsel of Frost’s pro se notice of appeal, failing to serve the Rule 1925(b) order upon Frost’s counsel, and subsequently stating that Frost was permitted to act pro se while represented by counsel, none of these errors caused prejudice to Frost. Frost filed a timely notice of appeal, is not subject to Rule 1925(b) waiver, and remains represented by counsel during his appeal.

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