J -S02019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ORRIN WINSTON MCRAE
Appellant No. 1023 EDA 2015
Appeal from the PCRA Order April 2, 2015 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001580-2013
BEFORE: SHOGAN, J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 05, 2017
Orrin Winston McRae appeals from the trial court's order dismissing his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. Due to a procedural default by plea counsel, we reverse and
remand for the reinstatement of McRae's appellate rights.
On February 4, 2014, McRae entered a negotiated guilty plea to
possession with intent to deliver,' several firearms violations,2 and resisting
arrest.3 McRae was sentenced to 8-16 years' incarceration, with two years
of concurrent state probation. The court also imposed a five-year
' 35 P.S. § 780-113(a)(30).
2 18 Pa.C.S. §§ 6105(a)(1), 6110.2(a).
3 75 Pa.C.S. § 3733(a). J -S02019-16
mandatory minimum sentence, pursuant to 42 Pa.C.S. § 9712.1(a)
(mandatory sentences for certain drug offenses committed with firearms).
McRae did not file post -sentence motions or a direct appeal.
On May 8, 2014, McRae filed a timely pro se PCRA petition. On May
19, 2014, Henry DiBenedetto-Forrest, Esquire, was appointed as PCRA
counsel, see Pa.R.Crim.P. 904(C), and was ordered to file an amended
petition within 60 days. On September 25, 2014, counsel filed an
application to withdraw pursuant to Turner/Finley.4 On that same day, the
court granted counsel's petition to withdraw and issued Pa.R.Crim.P. 907
notice of intent to dismiss McRae's petition without a hearing. On April 2,
2015, the court dismissed McRae's petition without a hearing. On April 13,
2015, McRae filed a timely notice of appeal, raising the following issue:
Whether the trial court erred in not correcting [McRae's] illegally prescribed sentence. The trial court's assertion that [McRae] is sentenced in the prescribed penalty [range], and [McRae] is untimely is an error. The Court should vacate[] sentence, and resentence Appellant in prescribed penalty range. Appellant's Brief, at 1.
Before we address McRae's substantive issue on appeal, we must first
turn our attention to a procedural conundrum presented in the instant case.
On October 8, 2013, Dawn Getty Sutphin, Esquire, was appointed to
4 Commonwealth v. Turner, See 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
-2 J -S02019-16
represent McRae; Attorney Sutphin represented McRae through the plea
proceedings. There is nothing in the record, however, indicating that
Attorney Sutphin ever filed a motion to withdraw from representing McRae.5
Pursuant to our rules of criminal procedure, both privately retained
and appointed defense counsel must follow certain formal procedures when
seeking to withdraw from representation of a client. See Pa.R.Crim.P. 120.
Specifically, Pennsylvania Rule of Criminal Procedure 120 provides, in
pertinent part:
(A) Entry of Appearance (1) Counsel for defendant shall file an entry of appearance with the clerk of courts promptly after being retained, and serve a copy of the entry of appearance on the attorney for the Commonwealth. * * *
(4) An attorney who has been retained or appointed by the court shall continue such representation through direct appeal or until granted leave to withdraw by the court pursuant to paragraph (B). (B) Withdrawal of Appearance
(1) Counsel for a defendant may not withdraw his or her appearance except by leave of court.
(2) A motion to withdraw shall be:
5Notably, after McRae filed a pro se PCRA petition on May 8, 2014, Henry DiBenedetto-Forrest (private counsel) was appointed as PCRA counsel. Rather than file an amended petition, Attorney DiBenedetto-Forrest filed a motion to withdraw under Turner/Finley, which the court granted on September 25, 2014.
-3 J -S02019-16
(a) filed with the clerk of courts, and a copy concurrently served on the attorney for the Commonwealth and the defendant; or
(b) made orally on the record in open court in the presence of the defendant. Pa.R.Crim.P. 120(A)(1), (4), (B)(1)-(2) (emphasis added). The comment to
Rule 120 explains that, "[u]nder paragraph (B)(2), counsel must file a
motion to withdraw in all cases, and counsel's obligation to represent the
defendant, whether as retained or appointed counsel, remains until leave to
withdraw is granted by the court." Pa.R.Crim.P. 120, comment (citing
Commonwealth v. Librizzi, 810 A.2d 692, 693 (Pa. Super. 2002) (stating
that once counsel enters appearance, he or she is responsible for diligently
representing client until appearance is withdrawn by leave of court;
responsibility to client includes filing requested appeal)).
In the instant case, there is nothing in the record indicating that plea
counsel consulted with McRae regarding his post -sentence or appellate
rights, other than what is stated in the standard language of the written
guilty plea colloquy. See Guilty Plea Statement, Statement of Post -
Sentence Rights, 2/4/14 ("I represent the Defendant in the above -captioned
case. I have explained the Post -Sentence Rights contained in this document
to the Defendant and I am satisfied that the Defendant understands these
rights."). Moreover, because the record does not reflect that counsel was
ever granted leave to withdraw, it appears that counsel did not fulfil her duty
of representing McRae throughout the appellate process. See Pa.R.Crim.P.
120. In Commonwealth v. Keys, 580 A.2d 386 (Pa. Super. 1990), counsel
- 4 - J -S02019-16
informed the defendant, after sentencing but before the time expired for
filing a direct appeal, that he would no longer represent him. However,
because counsel failed to seek or receive leave of court to withdraw as
counsel, our Court found that the defendant was denied his right to a direct
appeal by counsel's procedural default. Id. at 387. Consequently, the Court reversed the trial court's order and reinstated the defendant's right to a
direct criminal appeal. Id. at 387-88.
Likewise, we must reverse the trial court's order here and reinstate
McRae's right to a direct appeal because the record reflects that McRae was
effectively abandoned during the appeal period. We direct the court to
appoint new appellate counsel who shall file a notice of appeal nunc pro tunc
within thirty days of the filing of this memorandum.
Order reversed. Appeal rights reinstated Case remanded for
proceedings consistent with this decision. Jurisdiction relinquished. 6
6 By referencing several sentences in his pro se appellate brief, we are able to decipher that McRae has made a veiled Alleyne/mandatory minimum sentence argument.
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J -S02019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ORRIN WINSTON MCRAE
Appellant No. 1023 EDA 2015
Appeal from the PCRA Order April 2, 2015 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001580-2013
BEFORE: SHOGAN, J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 05, 2017
Orrin Winston McRae appeals from the trial court's order dismissing his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. Due to a procedural default by plea counsel, we reverse and
remand for the reinstatement of McRae's appellate rights.
On February 4, 2014, McRae entered a negotiated guilty plea to
possession with intent to deliver,' several firearms violations,2 and resisting
arrest.3 McRae was sentenced to 8-16 years' incarceration, with two years
of concurrent state probation. The court also imposed a five-year
' 35 P.S. § 780-113(a)(30).
2 18 Pa.C.S. §§ 6105(a)(1), 6110.2(a).
3 75 Pa.C.S. § 3733(a). J -S02019-16
mandatory minimum sentence, pursuant to 42 Pa.C.S. § 9712.1(a)
(mandatory sentences for certain drug offenses committed with firearms).
McRae did not file post -sentence motions or a direct appeal.
On May 8, 2014, McRae filed a timely pro se PCRA petition. On May
19, 2014, Henry DiBenedetto-Forrest, Esquire, was appointed as PCRA
counsel, see Pa.R.Crim.P. 904(C), and was ordered to file an amended
petition within 60 days. On September 25, 2014, counsel filed an
application to withdraw pursuant to Turner/Finley.4 On that same day, the
court granted counsel's petition to withdraw and issued Pa.R.Crim.P. 907
notice of intent to dismiss McRae's petition without a hearing. On April 2,
2015, the court dismissed McRae's petition without a hearing. On April 13,
2015, McRae filed a timely notice of appeal, raising the following issue:
Whether the trial court erred in not correcting [McRae's] illegally prescribed sentence. The trial court's assertion that [McRae] is sentenced in the prescribed penalty [range], and [McRae] is untimely is an error. The Court should vacate[] sentence, and resentence Appellant in prescribed penalty range. Appellant's Brief, at 1.
Before we address McRae's substantive issue on appeal, we must first
turn our attention to a procedural conundrum presented in the instant case.
On October 8, 2013, Dawn Getty Sutphin, Esquire, was appointed to
4 Commonwealth v. Turner, See 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
-2 J -S02019-16
represent McRae; Attorney Sutphin represented McRae through the plea
proceedings. There is nothing in the record, however, indicating that
Attorney Sutphin ever filed a motion to withdraw from representing McRae.5
Pursuant to our rules of criminal procedure, both privately retained
and appointed defense counsel must follow certain formal procedures when
seeking to withdraw from representation of a client. See Pa.R.Crim.P. 120.
Specifically, Pennsylvania Rule of Criminal Procedure 120 provides, in
pertinent part:
(A) Entry of Appearance (1) Counsel for defendant shall file an entry of appearance with the clerk of courts promptly after being retained, and serve a copy of the entry of appearance on the attorney for the Commonwealth. * * *
(4) An attorney who has been retained or appointed by the court shall continue such representation through direct appeal or until granted leave to withdraw by the court pursuant to paragraph (B). (B) Withdrawal of Appearance
(1) Counsel for a defendant may not withdraw his or her appearance except by leave of court.
(2) A motion to withdraw shall be:
5Notably, after McRae filed a pro se PCRA petition on May 8, 2014, Henry DiBenedetto-Forrest (private counsel) was appointed as PCRA counsel. Rather than file an amended petition, Attorney DiBenedetto-Forrest filed a motion to withdraw under Turner/Finley, which the court granted on September 25, 2014.
-3 J -S02019-16
(a) filed with the clerk of courts, and a copy concurrently served on the attorney for the Commonwealth and the defendant; or
(b) made orally on the record in open court in the presence of the defendant. Pa.R.Crim.P. 120(A)(1), (4), (B)(1)-(2) (emphasis added). The comment to
Rule 120 explains that, "[u]nder paragraph (B)(2), counsel must file a
motion to withdraw in all cases, and counsel's obligation to represent the
defendant, whether as retained or appointed counsel, remains until leave to
withdraw is granted by the court." Pa.R.Crim.P. 120, comment (citing
Commonwealth v. Librizzi, 810 A.2d 692, 693 (Pa. Super. 2002) (stating
that once counsel enters appearance, he or she is responsible for diligently
representing client until appearance is withdrawn by leave of court;
responsibility to client includes filing requested appeal)).
In the instant case, there is nothing in the record indicating that plea
counsel consulted with McRae regarding his post -sentence or appellate
rights, other than what is stated in the standard language of the written
guilty plea colloquy. See Guilty Plea Statement, Statement of Post -
Sentence Rights, 2/4/14 ("I represent the Defendant in the above -captioned
case. I have explained the Post -Sentence Rights contained in this document
to the Defendant and I am satisfied that the Defendant understands these
rights."). Moreover, because the record does not reflect that counsel was
ever granted leave to withdraw, it appears that counsel did not fulfil her duty
of representing McRae throughout the appellate process. See Pa.R.Crim.P.
120. In Commonwealth v. Keys, 580 A.2d 386 (Pa. Super. 1990), counsel
- 4 - J -S02019-16
informed the defendant, after sentencing but before the time expired for
filing a direct appeal, that he would no longer represent him. However,
because counsel failed to seek or receive leave of court to withdraw as
counsel, our Court found that the defendant was denied his right to a direct
appeal by counsel's procedural default. Id. at 387. Consequently, the Court reversed the trial court's order and reinstated the defendant's right to a
direct criminal appeal. Id. at 387-88.
Likewise, we must reverse the trial court's order here and reinstate
McRae's right to a direct appeal because the record reflects that McRae was
effectively abandoned during the appeal period. We direct the court to
appoint new appellate counsel who shall file a notice of appeal nunc pro tunc
within thirty days of the filing of this memorandum.
Order reversed. Appeal rights reinstated Case remanded for
proceedings consistent with this decision. Jurisdiction relinquished. 6
6 By referencing several sentences in his pro se appellate brief, we are able to decipher that McRae has made a veiled Alleyne/mandatory minimum sentence argument. Because at the time that McRae's judgment of sentence became final, Alleyne had already been decided, plea counsel should have been on notice that the constitutionality of our Commonwealth's mandatory minimum statutes was in question. See Commonwealth v. Melendez- Negron, 123 A.2d 1087, 1091 (Pa. Super. 2015). Therefore, under the holdings announced by our Court in Commonwealth v. Ciccone, 2016 PA Super 283 (Pa. Super. filed Dec. 13, 2016) (en banc), and Commonwealth v. Rivera, 2017 PA Super 14 (Pa. Super. filed Jan. 18, 2017) (en banc), which interpret our Supreme Court's decision, Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), plea counsel should have consulted with McRae regarding whether he wished to appeal the non -frivolous issue concerning the legality of his negotiated sentence under Alleyne. Rivera, (Footnote Continued Next Page)
-5 J -S02019-16
Judge Stabile concurs in the result.
Judge Shogan files a Dissenting Memorandum.
Judgment Entered.
J seph D. Seletyn, Prothonotary
Date: 5/5/2017
(Footnote Continued)
supra. However, due to the procedural default of plea counsel that resulted in the loss of McRae's appellate rights, we need not reach that issue today.
-6