Com. v. Scholl, J.

• Court: Superior Court of Pennsylvania
• Decided: August 7, 2023
• Docket: 1328 MDA 2022
• Status: Unpublished

Opinion

J-S15040-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES ROBERT SCHOLL : : Appellant : No. 1328 MDA 2022

Appeal from the PCRA Order Entered August 9, 2022 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0001683-2013

BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED: AUGUST 7, 2023

James Robert Scholl (“Scholl”) appeals from the order dismissing his

petition seeking relief pursuant to Post Conviction Relief Act1 (“PCRA”) as an

untimely second petition. Scholl’s counsel has filed a petition to withdraw

from representation and a no-merit letter brief pursuant to Commonwealth

v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988) (en banc). We deny Scholl’s counsel’s petition to

withdraw with instructions.

This Court previously summarized the procedures leading to this appeal

as follows:

In March 2014, a jury found Scholl guilty of three counts each of aggravated assault (attempt to cause serious bodily injury), aggravated assault (attempt to put official in fear of serious bodily injury), terroristic threats, simple assault, . . . ____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546. J-S15040-23

recklessly endangering another person, and one count each of resisting arrest and possession of firearm prohibited. The trial court found him guilty of harassment. The convictions stemmed from an incident in which Scholl pointed a gun at three police officers who had gone to his home in response to a report of a domestic disturbance. The officers had to wrestle with Scholl to disarm him. Scholl testified at trial, and his counsel called Scholl’s girlfriend as a trial witness, but [trial] counsel did not call any character witnesses.

On direct appeal, this Court affirmed the convictions but remanded for re-sentencing because the trial court had improperly imposed a mandatory minimum sentence, and the Supreme Court denied allowance of appeal in February 2016. The trial court re-sentenced Scholl to 16 to 32 years [of] imprisonment, on March 16, 2016.

That same month, Scholl filed a pro se [first] PCRA petition. The court appointed counsel, who filed an amended petition asserting that Scholl's trial counsel was ineffective for failing to call character witnesses.

Commonwealth v. Scholl, 251 A.3d 1208, 2021 WL 798891 (Pa. Super.

2021) (unpublished memorandum at *1) (some capitalization omitted),

appeal denied, 263 A.3d 1137 (Pa. 2021). The PCRA court denied Scholl’s

first PCRA petition following an evidentiary hearing. Following additional

proceedings not relevant to this appeal, this Court affirmed the order denying

Scholl’s first PCRA petition, see id. (unpublished memorandum at *3), and

our Supreme Court denied allowance of appeal in September 2021.

In November 2021, Scholl filed the instant second PCRA petition pro se.

The PCRA court appointed Scholl’s present counsel,2 who filed an amended

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2 The PCRA court did not state its basis for appointing counsel for Scholl’s second PCRA petition. See Pa.R.Crim.P. 904(D), (E) and Comment (noting (Footnote Continued Next Page)

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PCRA petition asserting several constitutional violations, including a claim that

trial counsel had argued in favor of his conviction during closing arguments

and a possible suppression issue. Scholl’s counsel did not address the

timeliness of the petition. The Commonwealth answered and argued that the

petition was facially untimely, did not state a timeliness exception, and, in any

event, raised previously litigated claims. The PCRA court issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss the petition as untimely.

Scholl’s counsel did not respond. The PCRA court dismissed Scholl’s petition

on August 9, 2022, and Scholl timely appealed. The PCRA court ordered a

Pa.R.A.P. 1925(b) statement, and Scholl’s counsel timely filed a statement of

her intent to file a Turner/Finley letter brief in the appeal. See Pa.R.A.P.

1925(c)(4). Scholl’s counsel has filed in this Court a petition to withdraw from

representation and a Turner/Finley letter brief concluding that Scholl’s

second PCRA petition was time-barred.

Prior to addressing the issue raised for our review, we must assess

whether counsel’s filings satisfy the technical requirements to withdraw as

PCRA counsel. See Commonwealth v. Muzzy, 141 A.3d 509, 510 (Pa.

Super. 2016) (holding that “prior to addressing the merits of the appeal, we ____________________________________________

that Rule 904 “limits appointment of counsel on second or subsequent petitions so that counsel should be appointed only if the judge determines that an evidentiary hearing is required” or if the interests of justice require the appointment of counsel (emphasis in original)). However, once appointed, counsel has an obligation to represent her client through an appeal or seek leave of the court to withdraw, even when the case involves a second PCRA petition. See Commonwealth v. Jackson, 965 A.2d 280, 284 (Pa. Super. 2009).

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must review counsel’s compliance with the procedural requirements for

withdrawing as counsel”). Counsel seeking to withdraw from PCRA

representation must:

(1) detail the nature and extent of counsel’s review of the case; (2) list each issue the petitioner wishes to have reviewed; and (3) explain counsel’s reasoning for concluding that the petitioner's issues are meritless. Counsel must also send a copy of the brief to the petitioner, along with a copy of the petition to withdraw, and inform the petitioner of the right to proceed pro se or to retain new counsel. If the brief meets these requirements, we then conduct an independent review of the petitioner’s issues.

Commonwealth v. Knecht, 219 A.3d 689, 691 (Pa. Super. 2019) (internal

citations omitted) (emphasis added).

Scholl’s counsel has minimally complied with the first three procedural

obligations for seeking withdrawal. With respect to the first Turner/Finley

requirement that she detail her review of the case, Scholl’s counsel simply

states that she “reviewed the record” and, “[a]fter careful review of the

claims[,]” concluded that the petition was without merit. Petition for Leave to

Withdraw, 1/6/23, at 1. For the second Turner/Finley requirement that she

list the issues Scholl wished to have reviewed, her letter brief describes the

issues Scholl intended to raise as “a request for new trial based on violations

of his constitutional rights.” Turner/Finley Letter Brief at 4. As to the third

Turner/Finley requirement, we note that Scholl’s counsel properly identifies

the timeliness of Scholl’s petition as a threshold issue in her Turner/Finley

letter brief. See Commonwealth v. Burton, 158 A.3d 618, 627 (Pa. 2017)

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(stating that “[t]he PCRA’s time restrictions are jurisdictional in nature, and a

court may not entertain untimely PCRA petitions” (internal citation omitted)).3

As to the final procedural requirement for withdrawal, the record shows

that Scholl’s counsel filed in this Court a letter advising Scholl of her intent to

withdraw because his petition was time-barred, but she misadvised Scholl that

he would have an opportunity to present his own arguments himself or

through private counsel if this Court granted her petition to withdraw. See

Letter to Scholl, 1/6/23, at 1; see also Muzzy, 141 A.3d at 510. Similarly,

her petition to withdraw, which she stated she attached to her letter,

erroneously stated that Scholl could “oppose [the] withdrawal of counsel at a

later date,” Petition for Leave to Withdraw, 1/6/23, at 1-2 (emphasis added).

In response, this Court issued an order identifying the Muzzy issues in

Scholl’s counsel’s letter to Scholl. Scholl’s counsel thereafter filed a copy of a

second letter, in which she apprised Scholl of his appellate rights as follows:

In response to the enclosed Order from the Superior Court, please know that you have an immediate right to proceed pro se or with privately retained counsel. You do not need to wait for the Superior Court to issue a decision on the Petition to Withdraw as counsel.

3 Because this appeal involves a second PCRA petition, we will not find Scholl’s

counsel’s failure to discuss the timeliness of Scholl’s PCRA petition in the amended petition, or her minimal compliance with the first three Turner/Finley requirements, deficient. See Commonwealth v. Yarris, 731 A.2d 581, 587 (Pa. 1999) (noting that a court may consider the timeliness of a PCRA petition sua sponte).

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See Response to Order, 2/3/23 (emphasis in original). This second letter

properly advised Scholl of his “immediate right” to proceed in this appeal.

However, the additional phrase that Scholl need not wait for a decision in this

appeal could continue to mislead Scholl to believe that he could respond after

final disposition of this appeal. Furthermore, none of Scholl’s counsel’s filings

with this Court included certificates or proofs of service on Scholl.

Based on the forgoing, we conclude that Scholl’s counsel adequately

complied with the first three procedural requirement to withdraw as PCRA

counsel but has not clearly advised Scholl of the need for his prompt

response, either pro se or with privately retained counsel. Therefore, we

direct Scholl’s counsel to file and serve Scholl, within fourteen days of the date

of this memorandum, with a corrected petition to withdraw and a new (third)

letter clearly advising Scholl of his right to proceed pro se or with new counsel

and that he must immediately exercise his rights before a final decision in this

appeal. Scholl’s counsel shall attach to this new letter a copy of her corrected

petition to withdraw and a copy of her Turner/Finley letter brief. Scholl’s

counsel shall also include a certificate of service upon Scholl and file proof of

service with this Court. Scholl shall have thirty days from the dates of service

of these materials to respond.

Petition to withdraw denied with instructions. Panel jurisdiction

retained.

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