Com. v. Hernandez-Andino, E.

• Court: Superior Court of Pennsylvania
• Decided: July 13, 2021
• Docket: 900 EDA 2020
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EUGENIO HERNANDEZ-ANDINO : : Appellant : No. 900 EDA 2020

Appeal from the PCRA Order Entered February 10, 2020 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0000519-2015

BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.: FILED JULY 13, 2021

Eugenio Hernandez-Andino appeals pro se from the order that denied

his petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We

vacate the order and remand for further proceedings.

Given our disposition, a detailed history of the case is unnecessary. In

short, Appellant was sentenced to life imprisonment after a jury convicted him

of first-degree murder, and his direct appeal resulted in no relief. See

Commonwealth v. Hernandez-Andino, 203 A.3d 307 (Pa.Super. 2018)

(unpublished memorandum), appeal denied, 214 A.3d 228 (Pa. 2019).

Thereafter, Appellant filed a timely pro se PCRA petition raising several

claims of ineffective assistance of trial counsel. The PCRA court entered an

order that (1) appointed PCRA counsel to represent Appellant and file an

amended petition, (2) scheduled a hearing, and (3) directed trial counsel to

attend the hearing. See Order, 7/31/19. Rather than file an amended J-S05012-21

petition, PCRA counsel filed a motion to withdraw to which he attached a no

merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

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

banc). By orders entered September 23, 2019, the PCRA court both granted

PCRA counsel’s motion to withdraw and ordered him to provide the case

materials to Appellant for an evidentiary hearing on the PCRA petition.

Apparently a hearing was held, although no transcript appears in the certified

record, at which Appellant represented himself and trial counsel testified. See

PCRA Court Opinion, 2/10/20, at unnumbered 2-4. From this hearing, the

PCRA court made findings of fact and concluded that Appellant failed to meet

his burden of proving any of his claims of ineffective assistance of trial counsel.

See id. at 5-10.

Appellant filed a timely pro se notice of appeal, and both Appellant and

the PCRA court complied with Pa.R.A.P. 1925.1 Appellant presents this Court

with five issues concerning the merits of his claims of ineffective assistance of

counsel. See Appellant’s brief at 3. However, based upon the following

authority, we do not reach those questions.

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1 Appellant’s pro se statement, although filed more than twenty-one days after

the entry of the PCRA court’s order directing a Pa.R.A.P. 1925(b) statement, was timely filed based upon Supreme Court’s extensions of filing deadlines due to the COVID-19 pandemic. See In re Gen. Statewide Judicial Emergency, 228 A.3d 1283 (Pa. 2020), supplemented, 228 A.3d 253 (Pa. 2020), and supplemented, 229 A.3d 229 (Pa. 2020). The PCRA court complied with its Pa.R.A.P. 1925(a) obligations by directing us to the February 10, 2020 opinion that accompanied its dismissal order.

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“Pennsylvania courts have recognized expressly that every post-

conviction litigant is entitled to at least one meaningful opportunity to have

issues reviewed, at least in the context of an ineffectiveness claim.”

Commonwealth v. Karanicolas, 836 A.2d 940, 945 (Pa.Super. 2003)

(cleaned up). All PCRA petitioners “have a general rule-based right to the

assistance of counsel for their first PCRA Petition.” Commonwealth v.

Cherry, 155 A.3d 1080, 1082 (Pa.Super. 2017). Specifically, Rule 904

provides that, except in death penalty cases, “when an unrepresented

defendant satisfies the judge that the defendant is unable to afford or

otherwise procure counsel, the judge shall appoint counsel to represent the

defendant on the defendant's first petition for post-conviction collateral relief.”

Pa.R.Crim.P. 904(C). We have held that this right extends “through the entire

appellate process.” Commonwealth v. Robinson, 970 A.2d 455, 457

(Pa.Super. 2009) (en banc).

A PCRA petitioner, even on his first petition, has no absolute right to a

hearing, and relief may be denied if it is clear from the record that the claims

lack merit. See Pa.R.Crim.P. 907(1). On the other hand, a hearing is required

where the petitioner “raised a genuine issue of fact which, if resolved in his

favor, would have entitled him to relief[.]” Commonwealth v. Maddrey,

205 A.3d 323, 328 (Pa.Super. 2019) (cleaned up). See also Pa.R.Crim.P.

908. This Court has indicated that the appointment of counsel is mandated

“in any case when an evidentiary hearing is required pursuant to Rule 908.”

Commonwealth v. Laboy, 230 A.3d 1134, 1138–39 (Pa.Super. 2020). See

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also Pa.R.Crim.P. 904(D) (providing that a PCRA court shall appoint counsel

for indigent petitioners when it determines a Pa.R.Crim.P. 908 evidentiary

hearing is warranted even in second and subsequent petitions where there is

otherwise no right to appointed counsel). This right also extends through an

appeal. See Commonwealth v. Jackson, 965 A.2d 280, 284 (Pa.Super.

2009) (“If the appointment of counsel is deemed necessary for purposes of

conducting an evidentiary hearing, then the petitioner requires the assistance

of counsel throughout the litigation of the issue. Such litigation necessarily

includes the appeals process.”).

The PCRA’s rule-based right to counsel may be waived by the petitioner.

Nonetheless, such a waiver must be knowing and voluntary as established

through an on-the-record colloquy. See Commonwealth v. Grazier, 713

A.2d 81, 82 (Pa. 1998) (“When a waiver of the right to counsel is sought at

the post-conviction and appellate stages, an on-the-record determination

should be made that the waiver is a knowing, intelligent, and voluntary one.”).

A PCRA petitioner’s right to counsel is satisfied and extinguished when

counsel withdraws pursuant to Turner and Finley. See Commonwealth v.

Johnson, 803 A.2d 1291, 1294 (Pa.Super. 2002). Before the PCRA court

may grant such a withdrawal request, however, it must conclude from an

independent review of the record that the claims the petitioner wishes to raise

lack merit. See, e.g., Commonwealth v. Muzzy, 141 A.3d 509, 511

(Pa.Super. 2016) (“Where counsel submits a petition and no-merit letter that

satisfy the technical demands of Turner/Finley, the court—trial court or this

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Court—must then conduct its own review of the merits of the case.”).

Consequently, such withdrawals typically either precede the dismissal of the

PCRA petition without a hearing or occur on appeal after the PCRA hearing

denied the PCRA petition following a hearing. See, e.g., id. (“If the court

agrees with counsel that the claims are without merit, the court will permit

counsel to withdraw and deny relief.”); Commonwealth v. Freeland, 106

A.3d 768, 775 (Pa.Super. 2014) (granting petition to withdraw pursuant to

Turner/Finley on appeal from denial of PCRA relief following a hearing).

Finally, “where an indigent, first-time PCRA petitioner was denied his

right to counsel—or failed to properly waive that right—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). Likewise, we must sua sponte address the deprivation of the right to

counsel even when litigating a second or subsequent petition for which the

right otherwise does not attach if the PCRA court conducts a hearing pursuant

to Rule 908. See Laboy, supra at 1138–39.

Applying the above principles to the instant case, we sua sponte

conclude that Appellant was deprived of his right to counsel. Specifically, we

observed that Appellant is an indigent, first-time PCRA petitioner, and thus

has a right to counsel throughout the proceedings, including this appeal. The

PCRA court’s decision to allow counsel to withdraw pursuant to Turner and

Finley should have signaled that it was able to conclude from the record that

Appellant’s claims were wholly without merit, and no further proceedings were

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necessary. However, when the PCRA court subsequently determined that a

Rule 908 hearing was warranted, Appellant’s right to counsel re-attached.

See Laboy, supra at 1138. Moreover, there is no indication in the certified

record that Appellant waived that right following a Grazier hearing.

Accordingly, rather than reach the merits of the substantive claims

Appellant raises in this appeal, we follow the procedures established in Laboy.

Specifically, we vacate the order denying Appellant’s PCRA petition and

remand for further proceedings. The PCRA court must initially determine

whether Appellant remains indigent and, if so, whether he desires to have

counsel appointed. If Appellant wishes to proceed pro se, the PCRA court

must conduct a Grazier hearing. If Appellant wishes to have counsel, the

PCRA court must appoint new counsel and conduct a new evidentiary hearing

on the claims raised in Appellant’s PCRA petition after counsel has had a

reasonable opportunity to prepare. See Laboy, supra at 1139. The PCRA

court may then rule on the merits of Appellant’s PCRA claims by entering a

new final order.

Order vacated. Case remanded for further proceedings. Jurisdiction

relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/13/2021

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