Com. v. Garcia, A.

• Court: Superior Court of Pennsylvania
• Decided: November 15, 2021
• Docket: 684 EDA 2021
• Status: Unpublished

Opinion

J-A24028-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ARNALDO GARCIA, SR. : : Appellant : No. 684 EDA 2021

Appeal from the PCRA Order Entered March 18, 2021 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0002966-2016

BEFORE: LAZARUS, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 15, 2021

Appellant, Arnaldo Garcia, Sr., appeals pro se from the Order denying

his first Petition filed pursuant to the Post-Conviction Relief Act, 42 Pa.C.S. §§

9541-46 (“PCRA”). He challenges, among other things, the PCRA court’s

failure to appoint new counsel to litigate the claims of ineffective assistance of

PCRA and trial counsel that he raised in his amended PCRA petition after the

court allowed appointed PCRA counsel to withdraw. In accordance with

Commonwealth v. Betts, 240 A.3d 616, 623 (Pa. Super. 2020), we vacate

the Order, and remand for the appointment of counsel and further

proceedings.

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* Retired Senior Judge assigned to the Superior Court. J-A24028-21

The trial court sentenced Appellant to an aggregate term of

incarceration of 8 years, 2 months to 25 years after a jury convicted him of

Aggravated Indecent Assault of a Child, Corruption of Minors, and Indecent

Assault of a Person less than 13 Years of Age. This Court affirmed the

Judgment of Sentence on February 4, 2019, and our Supreme Court denied

allowance of appeal. Commonwealth v. A.G., Sr., No. 635 EDA 2018 (Pa.

Super. filed Feb. 4, 2019) (unpublished memorandum), appeal denied, 217

A.3d 185 (Pa. 2019).

Appellant filed his first pro se PCRA Petition on November 1, 2019,

raising claims of ineffective assistance of trial counsel for failing to object to

the admission of alleged hearsay evidence. The PCRA court appointed

Matthew Rapa, Esq., directed counsel to file an amended petition, and

scheduled a hearing for February 3, 2020.

Rather than filing an amended Petition, Attorney Rapa filed a

Turner/Finley letter1 and a Motion to Withdraw as Counsel on December 31,

2019. The court held a hearing on the withdrawal motion on January 27,

2020, after which it granted the motion. The PCRA court informed Appellant

it would determine whether a hearing was required and, if not, submit a

Pa.R.Crim.P. 907 Notice. The court also informed Appellant of his right to

represent himself or hire new counsel but stated it would not appoint him new

1 Commonwealth 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. See N.T. Turner/Finley Hearing, 1/27/20, at 8. Two days later, on

January 29, 2020, the court issued a Notice of Intent to Dismiss the PCRA

Petition without a hearing pursuant to Pa.R.Crim.P. 907.

On February 19, 2020, Appellant pro se timely filed Objections to the

Rule 907 Notice,2 asserting that PCRA counsel had provided ineffective

assistance for filing a Turner/Finley letter instead of raising two issues of

merit, i.e., (1) a challenge to the legality of his sentence, specifically the

imposition of special conditions on his probationary sentence, and (2) trial

counsel’s ineffective assistance for failing to convey a plea offer to Appellant

prior to trial.

On February 27, 2020, Appellant filed a Motion for Leave to Amend his

pro se PCRA petition. The Court granted the motion on March 5, 2020, and

deemed the PCRA Petition amended with the claims raised in Appellant’s

objections to the court’s Rule 907 notice. See Order, 3/5/20.

On March 23, 2020, Appellant filed a Motion for Appointment of PCRA

Counsel. The PCRA denied the motion on March 26, 2020.

2 A PCRA petitioner must respond to the Rule 907 notice of intent to dismiss

within 20 days. Pa.R.Crim.P. 907(1). Although February 19, 2021, is more than 20 days after the court’s Rule 907 notice, the post-marked envelope included with the Appellant’s response indicates it was mailed on February 14, 2021. “[U]nder the prisoner mailbox rule, we deem a pro se document filed on the date it is placed in the hands of prison authorities for mailing.” Commonwealth v. Brandon, 51 A.3d 231, 234 n.5 (Pa. Super. 2012) (citation omitted). Accordingly, we conclude Appellant’s Rule 907 response was timely filed.

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On July 2, 2020, the court entered an order scheduling argument for

August 31, 2020, solely on the issue raised in the amended petition of whether

PCRA counsel was ineffective for failing to challenge the imposition of special

conditions in Appellant’s sentence.

Due to COVID restrictions, the court ultimately held a remote hearing

on the sentencing issue on November 20, 2020. At the conclusion of the

hearing, the court took the matter under advisement and informed the parties

that it may “reopen the Petition” if it decided that Appellant’s claim regarding

the plea offer required an evidentiary hearing. N.T. Hearing, 11/20/20, at 16.

On December 7, 2020, the court entered an Order denying the amended

PCRA petition in part and scheduling a hearing for February 11, 2021, to

consider the ineffective assistance of counsel claims, specifically whether trial

counsel failed to convey a plea offer to Appellant prior to trial and whether

PCRA counsel was ineffective for failing to challenge trial counsel’s

stewardship. On December 29, 2020, Appellant filed a Motion for Orders to

Effectuate Service of Subpoenas on both trial counsel and PCRA counsel. On

January 4, 2021, the PCRA court denied that Motion without prejudice.3

On February 10, 2021, the court continued the hearing to March 12,

2021, due to the unavailability of the Commonwealth’s witness, Appellant’s

trial counsel, Michael Gough, Esq. On March 12, 2021, the court held the ____________________________________________

3 The PCRA court included a footnote in its Order stating that the hearing scheduled for February 11, 2021, was not an evidentiary hearing because the court was only going to consider the special conditions in Defendant’s sentence.

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hearing at which the only witness presented by the Commonwealth was

Attorney Gough. Appellant did not cross-examine the witness and did not

present evidence. On March 18, 2021, the court entered an Order denying all

claims raised in Appellant’s pro se PCRA petition and amended petition.

Appellant filed a timely pro se Notice of Appeal. Both Appellant and the

PCRA court complied with Pa.R.A.P. 1925.

Pro se Appellant raises four issues, three of which challenge the PCRA

Court’s conclusion that PCRA counsel and trial counsel did not provide

ineffective assistance of counsel. The fourth issue, however, is the only one

we address here: whether the PCRA court denied Appellant his rule-based

right to PCRA counsel. Appellant’s Br. at 28-29.

Our rules of criminal procedure provide that when an indigent prisoner

files his first PCRA petition, the trial court shall appoint counsel. Pa.R.Crim.P.

904(C). See Commonwealth v. Albert, 561 A.2d 736, 738 (Pa. 1989) (“[I]n

this Commonwealth one who is indigent is entitled to

the appointment of counsel to assist with an initial collateral attack after

judgment of sentence.”). In this context, “the right to counsel conferred on

initial PCRA review means ‘an enforceable right’ to the effective assistance

of counsel.” Commonwealth v. Holmes, 79 A.3d 562, 583 (Pa. 2013)

(quoting Commonwealth v. Albrecht, 720 A.2d 693, 699-700 (Pa. 1998)).

A petitioner’s “ruled-based right to effective counsel extends throughout the

entirety of his first PCRA proceeding.” Betts, 240 A.3d at 623.

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In order to obtain review of a claim that PCRA counsel provided

ineffective assistance, a PCRA petitioner historically has been required to raise

the challenge in response to counsel’s motion to withdraw from representation

or in a timely response to a PCRA court’s Rule 907 notice of intent to dismiss

the petition. See generally Commonwealth v. Bradley, __ A.3d ___, 2021

WL 4877232 (Pa. filed Oct. 20, 2021) (setting forth the history of the right to

representation by PCRA counsel and the mechanisms for challenging PCRA

counsel’s stewardship). Here, not only did Appellant raise his challenge to

PCRA counsel’s representation in a timely response to the Rule 907 notice, but

the PCRA court allowed Appellant to amend his PCRA Petition with the claims

raised in his Rule 907 response. Thus, the preservation of Appellant’s

challenge to PCRA counsel’s effectiveness is not at issue.4

The question here is whether under the circumstances presented the

PCRA court erred in denying Appellant’s motion for the appointment of new

PCRA counsel. Even if Appellant had not filed his motion for the appointment

of new PCRA counsel, “where an indigent, first-time PCRA petitioner was

denied his right to counsel—or failed to properly waive that right—this Court

4 Our Supreme Court recently held 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.” Commonwealth v. Bradley, No. 37 EAP 2020, at 33, __ A.3d __, 2021 WL 4877232 at *15 (Pa. filed Oct. 20, 2021).

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is required to raise this error sua sponte and remand for the PCRA court to

correct that mistake.” Betts, supra at 621 (citation omitted).

In Betts, the appellant challenged the effectiveness of PCRA counsel in

pro se objections filed in response to the court’s Rule 907 notice. The PCRA

court dismissed the PCRA petition without addressing the issues raised in the

allegations of PCRA counsel’s ineffective assistance. After some procedural

peculiarities, including the PCRA court holding a Grazier hearing requested

by PCRA counsel rather than addressing Appellant’s PCRA ineffectiveness

claims, this Court concluded that the appellant was entitled to remand for the

appointment of substitute counsel to litigate the ineffectiveness claims lodged

against PCRA counsel as a “solution to the conundrum posed by the procedural

irregularities in this case.” Betts, supra at 625.

While the instant case has its own procedural peculiarities, it is equally

apparent here that this case presented an “instance[] where allegations of

ineffectiveness have necessitated the appointment of substitute counsel in the

post-collateral context.” Id. at 623. Appellant had a right to effective counsel

when he alleged Attorney Rapa’s ineffectiveness in response to the PCRA

court’s Rule 907 notice, particularly after the PCRA court allowed Appellant to

amend his petition with his illegal sentencing claim and concluded an

evidentiary hearing was required to address the issue underlying his layered

ineffectiveness claim. Id. By denying Appellant’s motion for the appointment

of new PCRA counsel, the court failed to enforce Appellant’s “ruled-based right

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to effective counsel . . . throughout the entirety of his first PCRA proceeding.”

Id. at 623. We conclude that the best mechanism “to ensure Appellant’s

interests are adequately represented and his right to counsel fully realized,”

is to remand for the appointment of new PCRA counsel. Id. at 624.

On remand, we direct the PCRA court to appoint substitute PCRA counsel

to represent Appellant and hold a new hearing.

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/15/2021

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