Com. v. McNeil, O.

• Court: Superior Court of Pennsylvania
• Decided: September 8, 2022
• Docket: 1204 EDA 2021
• Status: Unpublished

Opinion

J-S30035-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : OMAR MCNEIL : : Appellant : No. 1204 EDA 2021

Appeal from the PCRA Order Entered May 27, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0511831-2005

BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 08, 2022

Omar McNeil (McNeil) appeals from the May 27, 2021 order of the Court

of Common Pleas of Philadelphia County (PCRA court) dismissing his petition

filed pursuant to the Post-Conviction Relief Act (PCRA).1 We reverse the order

and remand for further proceedings.

Only a brief procedural history is necessary to our disposition. In 2006,

McNeil was convicted following a jury trial of first-degree murder, carrying a

firearm without a license and possession of an instrument of crime. 2 On

January 4, 2008, this Court affirmed his judgment of sentence and he did not

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541 et seq.

2 18 Pa.C.S. §§ 2502, 6106 & 907. J-S30035-22

seek further review. See Commonwealth v. McNeil, 3052 EDA 2006, at *7

(Pa. Super. Jan. 4, 2008) (unpublished memorandum).

On August 26, 2019, McNeil filed the instant PCRA petition, his first. He

claimed that after this Court resolved his appeal, he was abandoned by

appellate counsel and no petition for allowance of appeal in the Supreme Court

or PCRA petition was ever filed. Request for Post-Conviction Relief Nunc Pro

Tunc, 8/26/19, at ¶ 4. He requested that his appellate rights be reinstated

“due to a miscarriage of justice so malicious no respectable civilization would

tolerate. And the abandonment of counsel without informing petitioner of

where his case was at, or what to do.”3 Id. at ¶ 6 (cleaned up). He did not

plead that he requested a petition for allowance of appeal in the Supreme

Court or when he learned that his direct appeal had concluded. The petition

also raised claims for substantive relief such as alleged errors in jury selection.

The PCRA court appointed counsel who then filed a Turner/Finley no-

merit letter.4 PCRA counsel concluded that the petition was patently untimely

because McNeil’s judgment of sentence had become final in 2008. Counsel

3 McNeil additionally pled that various trial errors, primarily concerning jury selection, were the result of governmental interference under 42 Pa.C.S. § 9545(b)(1)(i). See Request for Post-Conviction Relief Nunc Pro Tunc, 8/26/19, at ¶¶ 27-28. He did not plead that government interference excused his untimely filing.

4Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

-2- J-S30035-22

contended that no exception to the jurisdictional time-bar applied, stating that

“[n]o such government interference or newly discovered evidence has been

offered to the undersigned, and no relevant, retroactive legislation applies.”

No-Merit Letter, 7/27/20, at 3. Counsel stated that he had “attempted

communication with [McNeil] via written correspondence” but did not state

whether he had successfully reached McNeil. Id. at 1. The letter did not

acknowledge McNeil’s claim that he was abandoned by direct appeal counsel

and had not previously been apprised of the status of his appeal. After

concluding that the petition was untimely, counsel did not address the merits

of any issues McNeil raised in his pro se petition.

The PCRA court issued a notice of its intention to dismiss the petition

without a hearing. McNeil did not file a response and the PCRA court dismissed

the petition. He timely appealed and the PCRA court appointed new counsel

who filed a concise statement of matters complained of on appeal pursuant to

Pa. R.A.P. 1925(b). He argued for the first time that initial PCRA counsel was

ineffective in filing a no-merit letter instead of amending the pro se petition.5

5 Pursuant to Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021), a PCRA petitioner may raise ineffectiveness of PCRA counsel “at the first opportunity to do so, even when on appeal.” The appellate courts may then address the ineffectiveness claims on the merits or, if necessary, “remand to the PCRA court for further development of the record and for the PCRA court to consider such claims as an initial matter.” Id. at 402.

-3- J-S30035-22

McNeil contends on appeal that his first appointed PCRA counsel was

ineffective in litigating his petition because he did not amend the petition or

otherwise argue that McNeil had satisfied the newly-discovered facts

exception to the jurisdictional time-bar.6 “To prove counsel ineffective, the

petitioner must show that: (1) his underlying claim is of arguable merit; (2)

counsel had no reasonable basis for his action or inaction; and (3) the

petitioner suffered actual prejudice as a result.” Commonwealth v. Sarvey,

199 A.3d 436, 452 (Pa. Super. 2018). We presume that counsel has rendered

effective assistance. See Commonwealth v. Treiber, 121 A.3d 435, 445

(Pa. 2015). When assessing PCRA counsel’s performance, we have observed

When appointed, counsel’s duty is to either (1) amend the petitioner’s pro se Petition and present the petitioner’s claims in acceptable legal terms, or (2) certify that the claims lack merit by complying with the mandates of Turner/Finley. If appointed counsel fails to take either of these steps, our courts have not hesitated to find that the petition was effectively uncounseled.

6 “The standard of review of an order dismissing a PCRA petition is whether that determination is supported by the evidence of record and is free of legal error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super. 2017). “[A] PCRA court has discretion to dismiss a PCRA petition without a hearing if the court is satisfied that there are no genuine issues concerning any material fact; that the defendant is not entitled to post-conviction collateral relief; and that no legitimate purpose would be served by further proceedings.” Commonwealth v. Brown, 161 A.3d 960, 964 (Pa. Super. 2017) (citations omitted). However, whether a PCRA petition is timely filed is a question of law over which our standard of review is de novo and our scope of review is plenary. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations omitted).

-4- J-S30035-22

Commonwealth v. Cherry, 155 A.3d 1080, 1083 (Pa. Super. 2017)

(citations omitted).

“A PCRA petition, including a second and subsequent petition, shall be

filed within one year of the date the underlying judgment becomes final.”

Commonwealth v. Graves, 197 A.3d 1182, 1185 (Pa. Super. 2018) (citation

omitted); see also 42 Pa.C.S. § 9545(b)(1). “[A] judgment becomes final at

the conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). If an

appellant wishes to pursue further review after his case is disposed of in this

Court, he must file a petition for allowance of appeal in our Supreme Court

within 30 days. See Pa. R.A.P. 1113(A). If no petition for allowance of appeal

is filed, the judgment of sentence becomes final after the 30-day period for

doing so has expired. 42 Pa.C.S. § 9545(b)(3).

McNeil’s sentence became final in 2008 when this Court affirmed his

judgment of sentence and he failed to seek further review. Because he did

not file the instant petition until August 2019, his petition is facially untimely

and he must plead and prove one of the exceptions to the PCRA’s timeliness

requirements: that he was prevented from raising the claim earlier by

government interference; that the claim is based on newly-discovered facts

that could not have been ascertained earlier with due diligence; or that the

claim is predicated on a newly-recognized constitutional right. 42 Pa.C.S.

-5- J-S30035-22

§ 9545(b)(1)(i)-(iii). In addition, the petitioner invoking a time-bar exception

must file the petition within one year of the date the claim could have been

presented. 42 Pa.C.S.A. § 9545(b)(2).

McNeil presents a layered ineffectiveness claim, asserting that prior

counsel was ineffective for failing to raise the newly-discovered facts exception

in order to establish he had been abandoned without notice by direct appeal

counsel. 42 Pa.C.S. § 9545(b)(1)(ii). To invoke the newly-discovered facts

exception, “the petitioner must establish only that (1) the facts upon which

the claim was predicated were unknown and (2) they could not have been

ascertained by the exercise of due diligence.” Commonwealth v. Cox, 146

A.3d 221, 227 (Pa. 2016) (internal quotations and citation omitted). Failure

to file a requested petition for allowance of appeal constitutes ineffective

assistance of counsel because it completely deprives an appellant of further

appellate review. Commonwealth v. Williamson, 21 A.3d 236, 241-42 (Pa.

Super. 2011). In addition to being a basis for substantive relief, such failure

can fulfill the newly-discovered facts exception to the PCRA’s time-bar if the

petitioner is unaware that counsel failed to file the petition and exercises due

diligence to ascertain the status of his case. Id.; see Cox, supra.

Here, it is not apparent from prior PCRA counsel’s sparse Turner/Finley

letter that he recognized McNeil’s attempt to claim abandonment by direct

appeal counsel or the application of the newly-discovered facts exception. The

no-merit letter does not address the purported abandonment by direct appeal

-6- J-S30035-22

counsel prior to filing a petition for allowance of appeal in the Supreme Court.

Williamson, supra. It merely avers that no newly-discovered evidence “has

been offered to the undersigned” and that counsel “attempted

communication” with McNeil prior to filing the letter. No-Merit Letter, 7/27/20,

at 3, 1. While the initial pro se petition did not properly set forth the elements

of the newly-discovered facts exception, appointed counsel had a duty to

investigate the allegation as set forth in the petition and amend the petition

to raise the exception if applicable. Cherry, supra. Prior PCRA counsel’s no-

merit letter does not adequately establish that he fulfilled this duty. It is not

clear from the letter that he ever spoke to McNeil to ascertain the facts

underlying the claim or that he even recognized McNeil’s attempt to raise this

ineffectiveness claim and time-bar exception in the first instance.

The Commonwealth and the PCRA court contend that PCRA counsel

could not have been ineffective because McNeil’s attempt to raise the newly-

discovered facts exception is meritless. See Commonwealth’s Brief at 6-8;

PCRA Court Opinion, 12/7/21, at 7-9. Based on the allegations in the pro se

petition and the passage of time, they conclude that McNeil would not have

been able to plead that the facts underlying his claim of abandonment were

previously unknown to him and that he exercised due diligence to ascertain

them. These arguments focus on whether McNeil’s initial pro se petition

established the time-bar exception. The proper inquiry, however, is whether

-7- J-S30035-22

prior PCRA counsel effectively discharged his duty to amend the petition or

comply with the dictates of Turner and Finley.

While it may be true that McNeil faces an uphill battle in establishing

that he exercised due diligence in the years since his direct appeal concluded,

he is nevertheless entitled to counsel on his first PCRA petition to rectify his

pleading errors and properly develop the claims or to file a more detailed no-

merit letter outlining the specific reasons why the petition fails. Cherry,

supra; Pa.R.Crim.P. 904(c). A pro se petitioner who initially fails to properly

plead his claims may nonetheless present meritorious claims, or at least raise

an issue of fact, when aided by competent counsel. Here, the current record

is inadequate to establish whether initial PCRA counsel correctly discharged

his duty and we must remand for the PCRA court to address these factual

issues in the first instance. Bradley, supra.

Accordingly, we vacate the order dismissing McNeil’s petition and

remand for an evidentiary hearing regarding prior PCRA counsel’s

effectiveness. If the PCRA court determines that prior counsel was ineffective,

it should allow McNeil the opportunity to amend his petition. If it determines

that prior counsel was effective, it should again dismiss the petition and McNeil

will be entitled to file an appeal from that order.

Order vacated. Case remanded for further proceedings in accordance

with this memorandum. Jurisdiction relinquished.

-8- J-S30035-22

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/8/2022

-9-