J-S67008-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JEFFREY G. FUTURE,
Appellant No. 415 MDA 2015
Appeal from the PCRA Order February 3, 2015 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0002423-2009
BEFORE: BOWES, PANELLA, AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED JANUARY 11, 2016
Jeffrey G. Future appeals from the order entered February 3, 2015, in
which the PCRA court granted in part and denied in part his PCRA petition.
Specifically, the PCRA court awarded Appellant the right to appeal nunc pro
tunc from the denial of his original PCRA petition which it had denied by
order on June 7, 2013, and denied his remaining claims as untimely. After
careful review, we affirm.
On July 30, 2009, Pennsylvania State Police responded to a report of
an individual having been shot numerous times who was in the center of a
rural roadway, Ransom Road, Lackawanna County. A witness at the scene
told police that she saw a sport utility vehicle flee at a high rate of speed
upon her approach. The victim, Allen Fernandez, was pronounced dead at
* Retired Senior Judge assigned to the Superior Court. J-S67008-15
the scene. A subsequent autopsy revealed that he had been shot twelve
times. Through their investigation, police learned of the possible
involvement of Appellant’s brother, Tonie Future. Thereafter, in an interview
with Pennsylvania State Police, Appellant admitted to taking part in the
murder of Mr. Fernandez. Appellant admitted that he used his mother’s
green Jeep Grand Cherokee to transport the victim to the location where the
victim was shot. Police also learned that another male, Christian Kenyon,
was involved in the shooting. Appellant, his brother, and Kenyon each fired
a weapon at the victim and police located the weapons with the aid of
Kenyon. According to a statement by Appellant, they murdered Mr.
Fernandez at the behest of another member of the Bloods street gang. Mr.
Fernandez was also a member of that gang.
Appellant pled guilty to first-degree murder on January 19, 2010.
Initially, Appellant expressed reluctance at entering his plea and set forth
that he desired to proceed to a trial. The court noted that it had previously
given Appellant approximately a month to consider the Commonwealth’s
plea offer and that Appellant was free to change his mind regarding entering
a plea, but it would not accept a guilty plea if he elected not to enter a plea
that day. The court expressed frustration at Appellant manipulating the
court and sheriff’s office, since on a prior occasion he had decided not to
enter an agreed-upon plea. Nonetheless, the court explained that it had
been comfortable giving Appellant five weeks to consider the plea offer. It
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then asked Appellant if he had enough time to review his own inculpatory
statements and other documents with his attorney. The court indicated that
it wanted “to make sure you are not doing this because you feel somehow
you are not adequately informed. You had enough time to meet with
counsel? You had enough time to review the evidence [in] this case?” N.T.,
1/19/10, at 5.
After Appellant stated that he needed more time to consult with his
attorney, the court took a recess and permitted Appellant to review the
matter with his counsel for an additional two hours. Counsel also placed on
the record that he had reviewed Appellant’s statements with him for a total
of three hours during two earlier prison visits.
Following his consultation with counsel, Appellant agreed to enter his
plea. Before doing so, both his attorney and the court colloquied him.
Appellant’s attorney queried Appellant as follows.
Attorney: Last time we were here it was about two hours ago. Since then, we have had time to discuss your case and answer any question that you had in a cell down in the basement, right?
Appellant: Yes.
Attorney: Did I answer any questions or any concerns that you had?
Attorney: Were you able to review any documents that you wanted to review?
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Attorney: You basically reviewed a couple of the documents, but did I discuss with you that I thought this was probably in your best interest - - not probably, but this is in your best interested [sic] to plead guilty?
Attorney: Did I threaten you or coerce you or cause you to make this plea?
Appellant: No.
Attorney: Are you doing this of your own free will?
N.T., 1/19/10, at 13-14. Thereafter, the plea court conducted its own
colloquy and reviewed a written guilty plea colloquy that Appellant had
reviewed and initialed. The court explained that Appellant had an absolute
right to a jury trial and by pleading guilty he would be giving up certain
rights. It pointed out that he was presumed innocent and the burden of
proof at trial rested on the Commonwealth. The court explained the concept
of reasonable doubt and that the prosecution would have to establish each
element of the charges beyond a reasonable doubt and that the jury’s
verdict must be unanimous.
In addition, the court informed Appellant that he had the right to
present his own witnesses as well as cross-examine any Commonwealth
witnesses, but he was not required to testify or present a defense. The
court also set forth the manner in which a jury would be selected, noting
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that the matter was a death penalty case. At that time, however, the
Commonwealth had not provided notice of any aggravating circumstances
and apparently, plea counsel was not “death qualified” to try the matter.
The court further discussed Appellant’s right to litigate pre-trial
motions and that, by pleading guilty, any issues he could litigate on appeal
would be limited. Since Appellant had been on parole at the time of his
commission of the crime herein, the court also explained that by pleading
guilty he was admitting to violating his parole and that he could be
sentenced to complete his parole sentence. The court also defined first-
degree murder and asked Appellant to repeat the definition to demonstrate
that he understood. With respect to the actual plea agreement, the court
set forth that the Commonwealth was agreeing to “abandon any efforts to
get the death penalty. In addition to that they have agreed that your
brother would also not face the death penalty if he agrees to enter a plea of
guilty.” Id. at 33.
The court continued by placing on the record that the Commonwealth
also had agreed to make efforts to place Appellant in federal custody for
protective reasons and not state prison.1 The Commonwealth indicated on
the record that it agreed with the court’s recitation of the agreement.
____________________________________________
1 The record contains subsequent filings in which the Commonwealth indicated that Appellant had elected not to cooperate with federal (Footnote Continued Next Page)
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Appellant submitted again that he had not been threatened to enter
the plea and that he was freely and voluntarily pleading guilty. He also
acknowledged the maximum penalty and fine, and that he faced a
mandatory sentence of life imprisonment without parole. The court then
recited the underlying fact that Appellant, with specific intent, shot and killed
Allen Fernandez. Appellant admitted to the crime.
The court accepted Appellant’s plea, placing on the record that it
reviewed a presentence investigative report and that it had no discretion to
sentence Appellant to anything other than life imprisonment without parole,
but felt that such a sentence was appropriate. Appellant apologized to the
victim’s family, accepted full responsibility, and offered advice to parents to
prevent their kids from falling for the “psychological trickery” of the gang
lifestyle. N.T., 1/19/10, at 45. The court then sentenced Appellant to life
imprisonment without parole and explained his appellate rights.
Appellant did not file a direct appeal, but filed a timely pro se PCRA
petition, which was docketed on November 10, 2010. Therein, Appellant
averred that plea counsel was ineffective for not advising him that he could
not represent Appellant in a capital trial and that plea counsel’s younger
_______________________ (Footnote Continued)
investigators and that he should be moved to state prison. Appellant testified at his PCRA hearing that cooperation with federal authorities was not part of the plea agreement, and the record of the plea hearing supports his position.
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brother was the police chief of the Scranton City police, which he posited
was the arresting agency in this matter. Appellant also alleged counsel was
ineffective for not litigating a suppression motion or filing a direct appeal.
The court appointed PCRA counsel on January 12, 2011. Initial PCRA
counsel submitted a Turner/Finley2 no-merit letter and petition to
withdraw.3 That letter addressed each of Appellant’s claims. The
Commonwealth also filed a response to Appellant’s pro se petition.4 Therein,
the Commonwealth averred that counsel was not required to be death
qualified because it had not filed notice of aggravating circumstances, the
Pennsylvania State Police was the arresting agency, and Appellant knowingly
waived the right to file pre-trial motions. The Commonwealth also
2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). 3 The no-merit letter is dated April 8, 2011, but was not docketed until September 18, 2015, well after original PCRA counsel was permitted to withdraw. Thus, it appears that counsel improperly did not contemporaneously file with the PCRA court the no-merit letter and petition to withdraw. See Commonwealth v. Willis, 29 A.3d 393 (Pa.Super. 2011) (noting that submitting to the court but not filing a no-merit letter was improper). However, Appellant received the no-merit letter and petition to withdraw as in subsequent filings he acknowledged the April 8, 2011 no- merit letter. 4 The Commonwealth filed its answer before Appellant’s counsel submitted his no-merit letter and erroneously labeled it as an answer to an amended petition.
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erroneously maintained that Appellant’s allegation that counsel failed to file
a direct appeal was not cognizable under the PCRA.
The PCRA court failed to issue Pa.R.Crim.P. 907 notice of intent to
dismiss or issue a final order. However, in an order dated April 11, 2011, it
permitted counsel to withdraw.5 On May 18, 2011, Appellant filed a
document seeking his transcripts and other docket entries, maintaining that
he could not adequately respond to counsel’s no-merit letter, and asking the
court to reconsider its order permitting counsel to withdraw. The court, on
October 26, 2011, directed the clerk of courts to provide Appellant with
those documents, which it did on the following day. Subsequently, on
January 31, 2013, Appellant filed a document entitled, “Petition for the
Court[’]s Assistance.” Therein, he pointed out that he had not received a
final order denying or granting his petition. Appellant also noted that the
Commonwealth had filed a response to his petition, setting forth that
counsel was not required to be death qualified. Appellant argued, however,
that the Commonwealth agreed not to seek the death penalty in exchange
for his plea and that the plea court had placed on the record that he was
facing the death penalty on multiple occasions.
In response, the PCRA court appointed new PCRA counsel,
Christopher Osborne, Esquire, on February 6, 2013. Attorney Osborne filed ____________________________________________
5 The order was filed on April 12, 2011.
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a Turner/Finley no-merit letter and petition to withdraw on June 4, 2013.
PCRA counsel re-addressed the issues Appellant leveled in his pro se
petition, except for his claim relative to seeking a direct appeal. Counsel
also averred that the issues were adequately addressed in the prior no-merit
letter. The PCRA court again failed to file a Rule 907 notice of dismissal and
instead, on June 7, 2013, granted second PCRA counsel’s petition to
withdraw and denied Appellant’s petition without a hearing. That final
order neglected to inform Appellant of his appellate rights nor does the
record reflect that the order was sent by certified mail per the rules of
criminal procedure.
Subsequently, on September 20, 2013, Appellant filed an additional
PCRA petition. That petition alleged that the Commonwealth unlawfully
induced him to plead guilty and breached his plea agreement by not having
him housed in a federal penitentiary. He also claimed that his plea was
involuntary because the Commonwealth threatened his brother with the
death penalty if Appellant did not plead guilty. Also, Appellant alleged that
his plea was unlawful because the Commonwealth and his plea counsel
indicated that he could face the death penalty when that was untrue.
Appellant also submitted for the first time that plea counsel was ineffective
in his pre-trial investigations, that the guilty plea colloquy was defective, and
that he was factually innocent because Christian Kenyon admitted killing the
victim.
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On October 10, 2013, the PCRA court again appointed counsel.
Counsel filed an amended petition on February 7, 2014, which alleged that
counsel was ineffective in advising Appellant that he would avoid the death
penalty by pleading guilty where the Commonwealth had not filed a notice of
aggravating circumstances pursuant to Pa.R.Crim.P. 802. Additionally,
Appellant argued that his plea was unlawfully induced where the
Commonwealth failed to make efforts to have him housed in a federal
prison. Lastly, Appellant contended that he was entitled to the nunc pro
tunc reinstatement of his PCRA appellate rights, relative to the June 7, 2013
order, because he did not receive copies of the second no-merit letter and
petition to withdraw or the final order.
The Commonwealth filed an answer, and the PCRA court conducted
evidentiary hearings on May 29, 2014 and August 29, 2014. At the
conclusion of the hearings, the court agreed that Appellant was entitled to
reinstatement of his PCRA appellate rights because he did not receive a copy
of the order denying his first PCRA petition, but denied his remaining claims
as untimely. This appeal ensued. The PCRA court indicated that the reasons
for its decision could be found in its memorandum decision in support of its
final order. The matter is now ready for this Court’s consideration.
Appellant presents the following issues for our review.
A. Whether the Appellant’s statutory and/or due process rights were violated by dismissal of his pro se Petition for Post Conviction Relief without a hearing since Appellant did not
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receive notice of either the Motion to Withdraw as Counsel, the “no-merit” letter, or his right to proceed pro se prior to dismissal, and genuine issues of material fact existed?
B. Whether it was an error of law for the PCRA court to dismiss Appellant’s pro se Petition for Post Conviction Relief since all issues raised in Appellant’s pro se Petition were not addressed and/or properly addressed in PCRA counsel’s “no-merit” letter?
C. Whether the PCRA court violated paragraph one (1) of Pa.R.Crim.P. 907 by summarily dismissing Appellant’s pro se Petition for Post Conviction Relief prior to conducting its own independent review of the record, without giving Appellant notice of its intention to dismiss, and without giving Appellant an opportunity to respond prior to dismissal?
D. Whether the PCRA court committed an error of law by dismissing Appellant’s pro se Petition for Post Conviction Relief since trial counsel provided ineffective assistance at the guilty plea proceedings by giving advice that was not within the range of competence demanded of attorneys in criminal cases?
E. Whether Appellant’s guilty plea was unlawfully induced since it was given to avoid the death penalty even though at the time the guilty plea was entered the death penalty was not applicable at the time?
F. Whether Appellant’s guilty plea was unlawfully induced since trial counsel was not death penalty certified and/or because the Commonwealth failed to provide notice of aggravating circumstances as required by law?
G. Whether the PCRA Court committed an error of law in denying the arguments made in Appellant’s Nunc Pro Tunc Petition for Post Conviction Relief as untimely since Appellant’s original Petition for Post Conviction Relief was denied without a hearing, notice, an opportunity to respond, or an opportunity to proceed pro se or with new counsel as required by law?
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H. Whether the trial court committed an error of law in denying the claims made in Appellant’s Nunc Pro Tunc Petition for Post Conviction Relief as being without merit?
I. Whether the Commonwealth violated the terms of the plea agreement by failing to give its best efforts to house Appellant in a federal penitentiary and Appellant is entitled to the benefit of the bargain as a result?
Appellant’s brief at 4-5.
Due to the PCRA court’s myriad of failures to adhere to the rules of
criminal procedure, this case has been unnecessarily complicated.
Accordingly, at the outset we must address the timeliness of Appellant’s
reinstated PCRA appellate rights. Should that reinstatement be timely and
Appellant be entitled to relief based on his original claims, it would obviate
any need to consider the timeliness of his additional claims advanced in his
most recent petition.
A petitioner’s request for the reinstatement of his PCRA appellate
rights nunc pro tunc must be timely filed. Commonwealth v. Fairiror, 809
A.2d 396 (Pa.Super. 2002). An untimely PCRA petition renders Pennsylvania
courts without jurisdiction to afford relief. Commonwealth v. Taylor, 65
A.3d 462, 468 (Pa.Super. 2013). “The question of whether a petition is
timely raises a question of law. Where the petitioner raises questions of law,
our standard of review is de novo and our scope of review plenary.” Id.
(citations omitted).
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The PCRA provides that all PCRA petitions must be filed within one
year of the date on which judgment of sentence became final, unless one of
the statutory exceptions set forth in 42 Pa.C.S. § 9545(b)(1) applies.
Judgment of sentence is final upon the completion of direct review. 42
Pa.C.S. § 9545(b)(3). Since Appellant did not file a direct appeal, his
judgment of sentence was final thirty days from his sentencing, which was
February 18, 2010. Thus, Appellant had until February 18, 2011, to file a
facially timely PCRA petition. Appellant filed the underlying petition on
September 20, 2013. Hence, Appellant could only file a timely petition by
asserting one of three timeliness exceptions. Those exceptions include
interference by government officials, newly-discovered facts that were
unknown to the petitioner and which could not have been ascertained with
due diligence, or a new constitutional right held to apply retroactively. 42
Pa.C.S. §§ 9545(b)(1)(i)-(iii). Any claim arguing an exception to the time-
bar must be filed within sixty days of the date it could have been first
presented. 42 Pa.C.S. § 9545(b)(2).
In his amended petition, Appellant alleged that his PCRA appellate
rights should be reinstated because he did not receive notice of the trial
court’s final order. The Commonwealth agreed that Appellant was entitled to
reinstatement of his appellate rights and the PCRA court made a factual
finding that Appellant did not receive the final order in this case. In
addition, Attorney Osborne does not appear to have served a copy of his no-
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merit letter on Appellant and his petition to withdraw did not indicate that he
provided Appellant with a copy. More importantly, the PCRA court’s failure
to provide both notice of intent to dismiss as well as send Appellant its final
order by certified mail resulted in governmental interference with the ability
of Appellant to raise his claims on appeal. Appellant filed the within petition
three months from the denial of his original petition and the Commonwealth
does not dispute his diligence. Appellant also noted in his pro se petition
that he had attempted to correspond with his prior attorneys regarding his
PCRA matter and received no response. The Commonwealth conceded that
second PCRA counsel neglected to notify Appellant of the PCRA court’s final
order.
Since the Commonwealth stipulated that Appellant was entitled to
reinstatement of his PCRA appellate rights based on his failing to receive
notice of the final order, there was no disputed issue of material fact relative
to Appellant’s due diligence. Therefore, we agree that the PCRA court
properly restored Appellant’s right to appeal from the denial of his original
PCRA petition. In Appellant’s original PCRA matter, i.e., those documents
filed before the June 7, 2013 order, he alleged that plea counsel was
ineffective for not advising him that he could not represent Appellant in a
capital trial or that the matter was not a capital case, that a conflict of
interest existed because plea counsel’s brother was the police chief of the
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Scranton City police, and that counsel was ineffective for not litigating a
suppression motion or filing a direct appeal.
In this appeal, Appellant has abandoned all but his position relative to
the case being a death penalty matter. Thus, we need not address the
additional issues not argued or preserved in this appeal. Appellant’s issues
D-F relate to the claim preserved in his initial PCRA proceeding and he
argues those issues together. Before examining those claims, we address
Appellant’s first three issues leveled in his brief. Those issues relate to the
procedural quagmire created by both the PCRA court and Appellant’s second
PCRA attorney.
Appellant’s initial claim is that his statutory and due process rights
were violated by the PCRA court’s dismissal of his original PCRA petition
where he did not receive his second PCRA attorney’s petition to withdraw or
no-merit letter, and he was not notified of his right to proceed pro se.
Appellant maintains that because his original petition raised genuine issues
of material fact, his case should be remanded. His second and third issues
are also interrelated to his first claim. We address these arguments
together.
Appellant argues that because Attorney Osborne did not provide him
with a copy of his no-merit letter or petition to withdraw nor did the latter
document include a statement that Appellant had the right to proceed pro se
or with new counsel if Attorney Osborne was permitted to withdraw, Mr.
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Osborne failed to satisfy the Turner/Finley requirements and the court
erred in allowing him to withdraw.6 Appellant also highlights that Attorney
Osborne’s no-merit letter was filed on June 4, 2013, and the PCRA court
dismissed his petition on June 7, 2013. He points out that the court did not
provide notice of dismissal and issued its final order before twenty days
elapsed from permitting counsel to withdraw. Hence, he maintains that
even if he would have received the Turner/Finley no-merit letter, he had
no opportunity to respond.
Further, Appellant posits that Attorney Osborne was ineffective and did
not comply with the substantive dictates of Turner/Finley because he did
not address the individual claims Appellant raised. Specifically, Appellant
asserts that Mr. Osborne did not discuss plea counsel’s alleged
ineffectiveness in not informing him that sufficient mitigating circumstances
existed to avoid the death penalty. Appellant adds that counsel did not
address the issue that plea counsel was not death-penalty qualified. In sum,
Appellant maintains that since Attorney Osborne did not follow the
procedures of Turner/Finley, the PCRA court erred in permitting counsel to
6 “ [W]e note that Appellant's claim that the PCRA court erred as a matter of law in permitting counsel to withdraw, although necessarily discussing PCRA counsel's alleged ineffectiveness, is not an ineffectiveness claim.” Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa.Super. 2012).
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withdraw and his case should be remanded to allow him to object to the
dismissal of his original petition.
Appellant’s second and third issues reiterate that the PCRA court erred
in not providing Rule 907 notice. In addition, he submits that the PCRA
court’s June 7, 2013 order indicates that it reviewed the two separate
Turner/Finley no-merit letters but does not set forth that the court
independently reviewed the entire record. Appellant maintains that had the
PCRA court conducted an independent review, it would have learned that the
no-merit letters did not address each of his claims. He also asserts that the
court would have found that he presented claims of arguable merit.
The Commonwealth responds that Attorney Osborne’s no-merit letter
set forth that he sent Appellant a copy of his petition to withdraw and
Turner/Finley letter. It further notes that it averred in an answer that
Attorney Osborne had represented that his records indicated that he
informed Appellant via mail that he filed a petition to withdraw and
Turner/Finley no-merit letter.7 More critically, the Commonwealth submits
that Appellant’s request for a remand is moot, as any errors were corrected
because he was permitted to raise his objections and the issues he wished to
litigate in his nunc pro tunc petition. ____________________________________________
7 Appellant rebutted this position below by attaching an exhibit from the Pennsylvania Department of Corrections relative to the mail he received between June 1, 2013 and January 8, 2014.
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Initially, and in light of the unusual procedural history of this matter,
we must address whether these arguments are properly before us.
Ordinarily, issues must be timely raised in a petition to preserve them. See
42 Pa.C.S. § 9544(b) ("For purposes of this subchapter, an issue is waived if
the petitioner could have raised but failed to do so before trial, at trial,
during unitary review, on appeal or in a prior state postconviction
proceeding."); see also 42 Pa.C.S. § 9545(b)(1) (petition must be filed
within one year of finality of judgment of sentence unless claims meet a
timeliness exception). The PCRA time-bar exceptions are claim specific.
See 42 Pa.C.S. § 9545(b)(1)-(2).
Since Appellant averred that the PCRA court both failed to provide him
notice of intent to dismiss and did not properly serve on him its final order,
which itself was defective, we find these claims fit within the governmental
interference exception. Moreover, we have previously determined that there
was no disputed issue of material fact regarding whether he exercised due
diligence in forwarding his related position regarding reinstatement of his
appellate rights.
Next, we must consider if these claims were adequately preserved.
Certain claims, such as PCRA court error, necessarily cannot be raised in an
original petition and do not fall within the PCRA waiver provision. See id.
(setting forth that an issue is waived if it could have been raised in a prior
post-conviction proceeding); cf. Commonwealth v. Rykard, 55 A.3d
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1177, 1188 (Pa.Super. 2012) (“It would be logically impossible for Appellant
to have argued the ineffective assistance of his post-conviction attorney in
his pro se petition as he had not yet been appointed PCRA counsel.”). Since
the PCRA court did not issue Rule 907 notice in this matter nor did it
properly serve Appellant its final order, Appellant was not afforded an
opportunity to raise these issues in his initial PCRA proceeding. Hence, we
decline to find waiver on the basis that they were not raised in his initial
PCRA proceeding.
As discussed, Appellant in his nunc pro tunc petition set forth that he
was not provided a copy of the order denying his petition nor was he
properly advised of his appellate rights. He reiterated that position in a brief
in support of his petition. Further, in a joint filing by Appellant and the
Commonwealth, Appellant argued that the PCRA court had jurisdiction over
his claims because Attorney Osborne failed to comply with Turner/Finley
by not providing him with his petition to withdraw or informing him of his
right to proceed pro se. We find these arguments adequately preserved his
claims of PCRA court error with respect to the manner in which it handled
Attorney Osborne’s petition to withdraw and no-merit letter. Thus, we
proceed to the merits.
Appellant is correct that the PCRA court erred in its initial handling of
his pro se petition and both Turner/Finley counsels’ no-merit letters. The
PCRA court failed to provide Rule 907 notice and issued a final order without
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affording Appellant an opportunity to respond to the second no-merit letter.
This is especially problematic post-Commonwealth v. Pitts, 981 A.2d 875
(Pa. 2009), which requires petitioners to raise issues relative to
Turner/Finley counsel’s representation in response to a Rule 907 notice.
Further, the PCRA court’s final order was not sent by certified mail and
neglected to include information regarding Appellant’s appellate rights. See
Pa.R.Crim.P. 908. Also, Attorney Osborne’s no-merit letter did not address
Appellant’s claim that he had been denied a requested direct appeal.
Although Appellant has abandoned that underlying claim, it is evident that
the PCRA court did not adequately conduct an independent review.
Nonetheless, despite these errors, the Commonwealth is correct that
Appellant’s request for a remand is moot. The PCRA court remedied its
earlier errors by appointing current PCRA counsel and conducting an
evidentiary hearing on the merits of Appellant’s claims. At the outset of the
PCRA hearing, the court expressly set forth that it was going to allow
counsel to make a record for Appellant’s issues. N.T., 5/29/14, at 6.
Accordingly, it is unnecessary to remand this matter to allow Appellant yet
another opportunity to pursue his underlying claims.
Having considered Appellant’s first three issues, we now proceed to
examine the substance of his main contention raised in his pro se filings
prior to the June 7, 2013 final order, i.e., those arguments falling within the
reinstatement of his PCRA appellate rights. In examining these claims, we
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consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014)
(en banc). In performing this review, we consider the evidence of record
and the factual findings of the PCRA court. Id. We afford “great deference
to the factual findings of the PCRA court and will not disturb those findings
unless they have no support in the record.” Id. Accordingly, so long as a
PCRA court’s ruling is free of legal error and is supported by record evidence,
we will not disturb its decision. Id.
Appellant forwards his argument as to issues D through F together.
Those issues all relate to the effectiveness of plea counsel as it pertains to
advising Appellant to plead guilty to avoid the death penalty. “To plead and
prove ineffective assistance of counsel a petitioner must establish: (1) that
the underlying issue has arguable merit; (2) counsel's actions lacked an
objective reasonable basis; and (3) actual prejudice resulted from counsel's
act or failure to act.” Commonwealth v. Stewart, 84 A.3d 701, 706
(Pa.Super. 2013) (en banc). The failure to meet any of these aspects of the
ineffectiveness test results in the claim failing. Id.
A claim has arguable merit where the factual predicate is accurate and
“could establish cause for relief.” Id. at 707. A determination as to
whether the facts asserted present a claim of arguable merit is a legal one.
Id. In considering whether counsel acted reasonably, we do not use a
hindsight analysis; rather, an attorney’s decision is considered reasonable if
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it effectuated his client’s interests. Id. Only where “no competent counsel
would have chosen that action or inaction, or, the alternative, not chosen,
offered a significantly greater potential chance of success[,]” will counsel’s
strategy be considered unreasonable. Id. Finally, actual prejudice exists if
“there is a reasonable probability that, but for counsel's errors, the result of
the proceeding would have been different.” Id. It is presumed that counsel
renders effective representation.
Where a petitioner alleges that guilty plea counsel was ineffective, he
must demonstrate that absent counsel’s incorrect advice or failure to advise,
there is a reasonable probability he would have not have pled guilty and
would have proceeded to trial, Commonwealth v. Barndt, 74 A.3d 185
(Pa.Super. 2013), or, not relevant here, accepted a plea offer. In examining
whether such prejudice exists in the context of a guilty plea, we look to
whether the plea is knowing, intelligent, and voluntary. Commonwealth v.
Anderson, 995 A.2d 1184, 1192 (Pa.Super. 2010) (“Allegations of
ineffectiveness in connection with the entry of a guilty plea will serve as a
basis for relief only if the ineffectiveness caused the defendant to enter an
involuntary or unknowing plea.”); Commonwealth v. Bedell, 954 A.2d
1209, 1212 (Pa.Super. 2008). In determining whether a plea was knowing,
intelligent, and voluntary, we consider the totality of the circumstances.
Commonwealth v. Allen, 732 A.2d 582, 587 (Pa. 1999); id. at 589.
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Appellant begins by arguing that plea counsel “provided ineffective
assistance by advising Appellant to plead guilty to avoid the death penalty
when the death penalty was not applicable at the time of the plea since no
Rule 802 notice of aggravating circumstances was provided.” Appellant’s
brief at 20. He continues that under Rule 802, the Commonwealth must
provide notice of the aggravating circumstances at or before arraignment
unless good cause is shown. Appellant asserts that late notice or the
absence of notice “is not to be condoned because it is prejudicial to a
defendant in preparing a defense.” Id. at 21 (citing Commonwealth v.
Edward, 903 A.2d 1139, 1162 (Pa. 2006)).
Appellant acknowledges that a defendant may have constructive notice
of the aggravating circumstances triggering a possible death verdict.
However, he contends that, in this case, the aggravating factors were not
apparent from the charges themselves and therefore there was no
constructive notice. Specifically, he submits that he was not charged with
kidnapping and the affidavit of probable cause and criminal information do
not provide that it was a murder-for-hire killing.
Additionally, he notes that plea counsel was not death penalty qualified
under Pa.R.Crim.P. 801. In this regard, he submits that Rule 801 is
designed to provide competent counsel at every stage of a death penalty
case, which includes pre-trial proceedings. Appellant points out that there
was no plea agreement before arraignment. Thus, he argues that plea
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counsel was incorrect in advising him to plead guilty to avoid the death
penalty since the case was not a death penalty matter.
In support, Appellant relies primarily on Commonwealth v. Wesley,
753 A.2d 204 (Pa. 2000), and Commonwealth v. Williams, 650 A.2d 420
(Pa. 1994). In Wesley, the defendant was afforded a new capital
sentencing hearing. Therein, the defendant had entered the apartment of
the victim, bound her, raped and sodomized her, cut her with various knives
and a meat cleaver before striking her multiple times in the head with a
baseball bat causing her death. After killing the victim, the defendant stole
her purse and car and attempted to withdraw money from her account. The
Commonwealth charged Wesley with homicide and one count each of rape,
robbery, burglary, and theft.
Under the then-applicable rule regarding notice of aggravating
circumstances, the Commonwealth failed to provide notice of torture as an
aggravating factor until the last day of the guilt phase of the trial. Four days
earlier, however, the Commonwealth had informed the defendant that it
intended to pursue the torture aggravator. In addition, the trial court
determined that the Commonwealth had told defense counsel two months
before trial that torture was a potential aggravating circumstance.
The Wesley Court held that, “The consequence of the prosecution's
failure to file notice of torture until after the jury had rendered a verdict of
guilt was that Wesley's penalty stage counsel was woefully unprepared to
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defend against that aggravating circumstance at sentencing.” Wesley,
supra at 214.
The Court in Wesley relied in part on Williams, supra. In Williams,
the victim was beaten and stabbed to death. The defendant had a history of
violent felony convictions, which was one of three aggravating circumstances
the jury found in imposing a death verdict. The defendant argued that the
trial court erred in permitting the prosecution to use evidence of his prior
felony convictions as an aggravator because he had not been provided notice
that it intended to pursue that aggravating circumstance. The Williams
Court found that, because the defendant’s prior criminal history should have
been known before his arraignment and was easily available, the
prosecution’s failure to provide adequate notice warranted preclusion of that
evidence during the sentencing phase of the defendant’s trial.
Appellant posits that these cases establish that the Commonwealth
could not provide notice of aggravating circumstances at any time. Since
the Commonwealth knew of the potential aggravators at the time of
arraignment, he asserts that it had to provide notice at that time or be
precluded from pursuing the death penalty. Alternatively, he argues that
since the PCRA court found, and the Commonwealth argued, that non-
certified death penalty counsel was permissible, the PCRA court’s finding
that the matter could have transformed into a capital case would have
deprived him of having competent counsel at all stages of his criminal
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proceeding. He reasons that, if the matter could have been or was a death
penalty case, he was entitled to death penalty counsel from the outset and
that the failure to provide him with such counsel resulted in an unknowing
and involuntary plea because his attorney lacked the necessary qualifications
to properly advise him.
The Commonwealth responds that plea counsel’s advice “was sound
because had Appellant not pled guilty, the Commonwealth would have
pursued the death penalty as Appellant proceeded to trial.”
Commonwealth’s brief at 12. It points out that the plea court explicitly
stated that part of the agreement was that the Commonwealth “will abandon
the efforts to get the death penalty.” N.T., 1/19/10, at 33. The
Commonwealth asserts that during the PCRA hearings, the district attorney
testified that the parties had engaged in months of discussion over a
potential plea and that Appellant knew that the Commonwealth would seek
the death penalty if he did not enter a plea.
With respect to Appellant’s position that Rule 802 precluded it from
seeking the death penalty, the Commonwealth argues that the rule is
intended to permit counsel an adequate opportunity to prepare for the
sentencing phase of a capital case. Since Appellant was negotiating a plea
to avoid such a sentencing hearing, the Commonwealth contends that it did
not need to file Rule 802 notice at that time. In the alternative, the
Commonwealth avers that Appellant had constructive notice of the
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aggravating factors since Appellant and his co-defendants transported the
victim a substantial distance before executing him, i.e., committed a murder
in the perpetration of a felony. It also contends that since the evidence
showed that it was a murder-for-hire situation, an additional aggravating
circumstance existed. According to the Commonwealth, the affidavit of
probable cause and thousands of pages of discovery demonstrated these
aggravating facts.
The Commonwealth further maintains that Appellant suffered no
prejudice by its failure to serve Rule 802 notice of aggravating
circumstances and that the cases he relies on did not involve guilty pleas.
As it relates to prejudice, the Commonwealth argues that he was not unfairly
surprised by the lack of notice because he pled guilty and, had he rejected
the plea offer, he would have been afforded sufficient time to prepare.
Lastly, it rejects Appellant’s assertion that he was entitled to death penalty
counsel from the outset since it had not filed notice that it was going to seek
the death penalty. It posits that had Appellant rejected the plea offer, then
the court would have needed to appoint a death qualified attorney.
Initially, we agree that a claim that counsel was ineffective in advising
his client to plead guilty to avoid the death penalty when the case was not a
death penalty matter can raise an issue of arguable merit. Nonetheless, we
find that plea counsel had a reasonable basis for informing Appellant that
the Commonwealth would seek the death penalty if he did not elect to enter
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a plea. The district attorney in this matter testified at the PCRA hearing that
the parties were aware that the death penalty would be on the table if
Appellant did not enter a plea. Moreover, we do not find that the absence of
Rule 802 notice rendered plea counsel’s advice erroneous. This is simply not
a situation where every competent attorney would have determined that the
Commonwealth could not pursue the death penalty because it had not filed a
Rule 802 notice.
Here, it should be noted that Appellant’s brother and co-conspirator
was also potentially facing the death penalty. See N.T., 5/29/14, at 21
(current PCRA counsel placing on the record that Tonie Future did face the
death penalty). The facts of the crimes committed by Appellant and his
brother were identical. The affidavit of probable cause related that Appellant
told investigators that a member of the Bloods gang told him that the victim
had to be killed. The probable cause affidavit also stated that Tonie Future
admitted the killing was ordered by another gang member. The affidavit
revealed that Appellant admitted to driving the victim to the scene of the
crime before he, his brother, and Christian Kenyon shot and killed him.
Thus, the affidavit of probable cause gave Appellant constructive notice of
the potential aggravating circumstances.
Furthermore, we do not agree that it is clear that the Commonwealth
would not have been permitted to seek the death penalty because it had not
filed Rule 802 notice. Whether plea negotiations and their subsequent
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breakdown would constitute good cause for allowing post-arraignment Rule
802 notice has not been conclusively decided. Although Appellant presents
reasons for why it would not be permitted, the standard for an
ineffectiveness test requires advice that no competent attorney would
provide. In light of existing case law, counsel’s advice was not so
unreasonable as to warrant a finding of ineffectiveness.
For example, in Commonwealth v. Crews, 640 A.2d 395 (Pa. 1994),
the Commonwealth neglected to provide the defendant at the time of his
arraignment with notice under the then-applicable rule. However, it had
made the defendant aware that it intended to seek the death penalty.
Ultimately, the Commonwealth provided the rule-based notice three days
before trial. The Pennsylvania Supreme Court determined that the
aggravating circumstances were inherent in the charges and that the
defendant was not prejudiced by the lack of written notice.
Similarly, in Commonwealth v. Abdul-Salaam, 678 A.2d 342 (Pa.
1996), the High Court denied a claim that the absence of written notice
prejudiced the defendant, entitling him to capital resentencing. In Abdul-
Salaam, the prosecution provided notice that it would pursue the death
penalty one month after arraignment. The Supreme Court determined that
the defendant did not suffer prejudice because he still had over three
months to prepare for the penalty phase of the case.
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In yet another matter, Commonwealth v. Carson, 741 A.2d 686
(Pa. 1999), the Pennsylvania Supreme Court determined that written notice
provided two months after arraignment but five months before trial did not
prejudice the defendant because additional charges of robbery and
aggravated assault provided notice of the requisite aggravating
circumstances. These cases demonstrate that the failure to provide Rule
802 notice at the time of arraignment does not per se preclude seeking the
death penalty. So long as a defendant has ample time to prepare for
sentencing, no prejudice exists where the individual actually proceeds to
trial. Compare Wesley, supra (Supreme Court opining that defense
counsel did not have adequate time to prepare defense). Instantly, it is
evident that the Commonwealth had informed Appellant through plea
negotiations that it was considering pursuing the death penalty and the facts
of the case provided constructive notice. Had Appellant not pled guilty,
there was no case law precluding the Commonwealth from providing written
notice of aggravating circumstances after Appellant’s arraignment so long as
he had sufficient time to prepare.
Having concluded that the Commonwealth could have potentially
invoked the death penalty, we turn to Appellant’s position that he was
deprived of death penalty qualified counsel. The governing rule provided
that death penalty qualified counsel is required “In all cases in which the
district attorney has filed a Notice of Aggravating Circumstances[.]”
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Pa.R.Crim.P. 801. Thus, if the Commonwealth had untimely filed a notice of
aggravating circumstances, Appellant would have been constitutionally
entitled to capital counsel. The absence of death qualified counsel in this
matter was not per se prejudicial. See Commonwealth v. Staton, 120
A.3d 277, 287 (Pa. 2015) (“even assuming Attorney Speice did not satisfy
Rule 801's capital case qualifications, such fact alone would not establish his
ineffectiveness at Appellant's trial. Rather, all the prongs of the
Strickland/Pierce ineffectiveness standard must be demonstrated.”).
The totality of the circumstances in this case indicates that Appellant
was aware that the Commonwealth could seek the death penalty. The facts
underlying the crime provided sufficient notice of the possible aggravating
circumstances. The plea court conducted a thorough colloquy of Appellant.
That the Commonwealth did not file a notice of aggravating circumstances
does not make plea counsel’s advice that Appellant could avoid the death
penalty by entering a plea so lacking that no reasonable attorney would
have forwarded that advice. Appellant is not entitled to relief.
Appellant argues his next two claims, issues G and H, together. His
arguments relate to the PCRA court’s finding that Appellant’s substantive
claims in his nunc pro tunc petition were untimely. Appellant contends that
the PCRA court erred because those issues “were directly related to the
claims raised in Appellant’s original pro se [p]etition.” Appellant’s brief at
32. He continues that even if the issues were not included in his initial pro
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se petition, they were raised in his petition for reconsideration and petition
for the court’s assistance. In Appellant’s nunc pro tunc petition he
specifically averred:
Trial counsel provided ineffective assistance to Defendant by misadvising him that by pleading guilty he would avoid the death penalty when the death penalty was not applicable at the time he entered his guilty plea.
Defendant’s guilty plea was unlawfully induced since Defendant pled guilty to First Degree Murder to avoid the death penalty when the death penalty was not applicable at the time and the Defendant is innocent.
Commonwealth violated the plea agreement by failing to make its best efforts to have Defendant housed in a federal penitentiary.
Defendant did not receive notice of the Court’s dismissal of his PCRA or his right to appeal same, and if Defendant’s Nunc Pro Tunc Petition is not granted, he seeks reinstatement of his appellate rights to file a nunc pro tunc appeal to the Court’s June 7, 2013 denial of Defendant’s Petition for Post Sentence Collateral Relief.
Nunc Pro Tunc PCRA petition, 2/7/14, at unnumbered pages 5, 8, 10.
Appellant’s initial two issues are substantially similar to the claims he
made in his original PCRA filings. We have already determined that those
positions were timely raised and preserved and disposed of them on the
merits. The PCRA court also agreed with his final claim and we have upheld
the reinstatement of his PCRA appellate rights. Thus, the only issue that we
must consider if it was timely is whether Appellant’s guilty plea was
unlawfully induced because the Commonwealth violated its plea agreement
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by not making efforts to ensure he was housed in the federal prison system.
This is also Appellant’s final issue advanced on appeal.
This claim is untimely and waived because Appellant did not forward it
in his original PCRA matter. While Appellant asserts that his claim meets the
governmental interference timeliness exception, he readily acknowledges
that his argument, the court’s failure to appoint original PCRA counsel until
seven days before the one year time period expired, is without legal support.
We acknowledge that absent the filing of an adequate amended
petition or Turner/Finley no-merit letter during a first-time proceeding, a
petitioner is constructively without counsel. Commonwealth v. Hampton,
718 A.2d 1250 (Pa.Super. 1998); see also Commonwealth v. Powell,
787 A.2d 1017, 1019 (Pa.Super. 2001); Commonwealth v. Priovolos, 746
A.2d 621, 625 (Pa.Super. 2000); Commonwealth v. Ollie, 450 A.2d 1026
(Pa.Super. 1982); Commonwealth v. King, 384 A.2d 1314 (Pa.Super.
1978); Commonwealth v. Irons, 385 A.2d 1004 (Pa.Super. 1978);
Commonwealth v. Sangricco, 415 A.2d 65, 68-69 (Pa. 1980); see also
Commonwealth v. Wiley, 966 A.2d 1153 (Pa.Super. 2009) (remanding for
additional proceedings despite finding that petition was facially untimely
where counsel failed to meaningfully participate in earlier PCRA
proceedings); Commonwealth v. Blackwell, 936 A.2d 497 (Pa.Super.
2007); Commonwealth v. Perez, 799 A.2d 848 (Pa.Super. 2002);
Commonwealth v. Davis, 526 A.2d 440 (Pa.Super. 1987).
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Accordingly, where a first-time petition is dismissed without counsel
filing an amended petition or a Turner/Finley no-merit letter or
representing his client in any meaningful manner, a subsequent petition may
be treated as a first petition relating back to the original pro se petition.
Commonwealth v. Tedford, 781 A.2d 1167, 1171 (Pa. 2001) (“the PCRA
court erred by dismissing Appellant's pro se PCRA Petition rather than
directing Appellant to file an amended petition with legal assistance”);
Commonwealth v. Duffey, 713 A.2d 63 (Pa. 1998); Commonwealth v.
Williams, 828 A.2d 981, 990 (Pa. 2003) (“Tedford and Duffey stand for
the proposition that if a court dismisses a pro se petition prior to the
appointment of counsel, a subsequent counseled petition may not be treated
as an untimely second petition.”).
This case, however, is distinct from Tedford, Duffey, and Williams,
in that two separate attorneys were appointed during Appellant’s first PCRA
proceeding and they did file no-merit letters. Further, Appellant has not
argued based on these cases that his subsequent petition should be
construed as an amendment to his first time petition based on a constructive
denial of counsel. Thus, Appellant has failed to plead and prove a timeliness
exception relative to his claim that the Commonwealth failed to abide by the
plea agreement. For all the aforementioned reasons, we find that Appellant
is not entitled to relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/11/2016
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