Com. v. Shields, A.

• Court: Superior Court of Pennsylvania
• Decided: November 14, 2019
• Docket: 143 WDA 2019
• Status: Unpublished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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. : : : ANTHONY DWAYNE SHIELDS : : Appellant : No. 143 WDA 2019

Appeal from the Order Entered May 30, 2018 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0002210-2015

BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 14, 2019

Anthony Dwayne Shields (Appellant) appeals from the order dismissing

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. After careful review, we vacate and remand for

further proceedings.

On September 24, 2015, Appellant was charged with three counts each

of possession of a controlled substance and contraband, and one count of

possession of marijuana.1 Appellant’s first trial resulted in a mistrial after the

jury could not reach a verdict. Appellant was retried and convicted of the

aforementioned offenses. The trial court sentenced Appellant to 99 to 198

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 5123(a), and 35 P.S. § 780- 113(a)(31). J-S55011-19

months of incarceration. Appellant filed a timely notice of appeal, and this

Court affirmed his judgment of sentence. Commonwealth v. Shields, 837

WDA 2016 (Pa. Super. Apr. 10, 2017) (unpublished memorandum).

On November 8, 2017, Appellant filed a pro se PCRA petition. The PCRA

court appointed William J. Hathaway, Esquire, as counsel for Appellant, and

on January 16, 2018, Attorney Hathaway filed a “Supplement to Motion for

Post Conviction Collateral Relief.” On April 27, 2018, the PCRA court issued

notice of its intent to dismiss Appellant’s petition without a hearing pursuant

to Rule of Criminal Procedure 907. Attorney Hathaway did not file a response

to the court’s notice, and on May 30, 2018, the PCRA issued an order

dismissing Appellant’s petition.2

On August 3, 2018, Appellant filed a pro se notice of appeal from the

order dismissing his PCRA petition. On August 13, 2018, the PCRA court

ordered Appellant to file a statement of matters complained of on appeal

pursuant to Pa.R.A.P. 1925(b) within 21 days. Appellant filed a pro se Rule

1925(b) statement on August 29, 2018, and the PCRA court issued its Rule

1925(a) opinion on September 4, 2018. On November 20, 2018, this Court

sua sponte quashed Appellant’s appeal as untimely.3

2On July 1, 2018, Appellant mailed a letter to Attorney Hathaway requesting verification that Attorney Hathaway filed a response to the PCRA court’s Rule 907 notice. Correspondence, 11/1/18. The record reflects, and Attorney Hathaway concedes, that no response was ever filed. Id.

3 It appears there may have been a delay in docketing this order in the trial court as the order does not appear on the docket until January 7, 2019.

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On December 19, 2018, Appellant filed a second pro se PCRA petition,

alleging ineffective assistance of PCRA counsel for failing to file a notice of

appeal from the denial of Appellant’s first PCRA petition. On December 27,

2018, the PCRA court granted Appellant’s PCRA petition and reinstated his

collateral appeal rights nunc pro tunc. Attorney Hathaway4 filed a timely

notice of appeal on January 25, 2019.

On February 13, 2019, Appellant, relevant to this appeal, filed the

following pro se motion with the Superior Court:

President Judge[:]

Sir, I filed my PCRA. Attorney Hathaway was appointed, [a]gain. He, Mr. Hathaway[,] abandoned me on my first PCRA leaving me, a lay man, no choice but to file an [sic] hybrid appeal to this Superior Court Doc # 1125 WDA 2018.

My concern is that Att. Hathaway never meaningfully Amended my PCRA for the [PCRA court] to reach the merits of my claims. Could your Court please remand my case back down to the Erie County for further proceedings so I can experience [e]ffective assistance of counsel[?] I have merit, but I am a lay man who is learning as [I] go and that is not enough.

Please and Thank you.

[Appellant] ____________________________________________

4 As noted, Attorney Hathaway was appointed to represent Appellant after Appellant filed his first pro se PCRA petition. Attorney Hathaway failed to file a notice of appeal on Appellant’s behalf, and consequently, the court reinstated Appellant’s appeal rights nunc pro tunc. After Appellant filed his second pro se PCRA petition, the PCRA court reappointed Attorney Hathaway to file a notice of appeal nunc pro tunc.

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Application for Remand, 2/13/19 (emphasis added).

On February 19, 2019, this Court entered an order remanding the case

for a Grazier5 hearing. On March 25, 2019, the PCRA court held a Grazier

hearing, “during which Appellant stated he did not wish to proceed pro se and

he wished to continue to be represented by counsel.” PCRA Court Opinion,

6/7/19, at 2. Accordingly, the PCRA court ordered Attorney Hathaway’s

continued representation of Appellant.

On August 22, 2019, Attorney Hathaway filed an appellate brief on

behalf of Appellant, identifying the following six issues for our review:

1. Whether the trial [c]ourt denied the Petitioner his constitutional right to represent himself without legal basis or justification?

2. Whether counsel was ineffective in failing to strike or request the removal of a juror [Karen Beebe] who engaged in communication with a prosecution witness?

3. Whether the trial was tainted given this juror misconduct?

4. Whether counsel was ineffective in failing to object to or move for a mistrial based upon the Commonwealth’s prejudicial reference to the Defendant’s parole and incarcerated status?

5. Whether counsel was ineffective in failing to object to the Commonwealth trying Defendant for several unrelated offenses at trial?

6. Whether counsel was ineffective in failing to object to or move for a mistrial based upon the Commonwealth’s expression of his personal opinion in regard to the Defendant’s guilty and credibility?

Appellant’s Brief at 2. ____________________________________________

5 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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We review the denial of a PCRA petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).

Petitioners have a general rule-based right to the assistance of counsel

for their first PCRA petition. Pa.R.Crim.P. 904(C); Commonwealth v.

Robinson, 970 A.2d 455, 457 (Pa. Super. 2009) (en banc) (stating, “a

criminal defendant has a right to representation of counsel for purposes of

litigating a first PCRA petition through the entire appellate process [ ]”). “The

indigent petitioner’s right to counsel must be honored regardless of the merits

of his underlying claims, even where those claims were previously addressed

on direct appeal, so long as the petition in question is his first.”

Commonwealth v. Powell, 787 A.2d 1017, 1019 (Pa. Super. 2001).

“Moreover, once counsel is appointed, he [or she] must take affirmative steps

to discharge his [or her] duties.” Id.

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.6 “If appointed counsel fails to take either of these steps, our

courts have not hesitated to find that the petition was effectively

uncounseled.” Powell, 787 A.2d at 1019.

6Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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The right to counsel on an indigent petitioner’s first PCRA petition is not

limited to the mere naming of an attorney. Commonwealth v. Hampton,

718 A.2d 1250 (Pa. Super. 1998). To have any meaning, the rule also requires

appointed counsel to provide meaningful representation. Id. This Court has

stated:

“[W]hen appointed counsel fails to amend an inarticulately drafted pro se [post-conviction] petition, or fails otherwise to participate meaningfully, this [C]ourt will conclude that the proceedings were, for all practical purposes, uncounseled and in violation of the representation requirement. . . .” [Commonwealth v.] Ollie, 450 A.2d [1026,] 1028 [(Pa. Super. 1982)] [(]quoting Commonwealth v. Sangricco, 490 Pa. 126, 415 A.2d 65 (1980)[)] (internal quotation marks omitted). Both this Court and our Supreme Court have recognized that a post- conviction petition is effectively uncounseled under a variety of circumstances whenever omissions of record demonstrate that counsel’s inaction “deprived the petitioner ‘the opportunity of legally trained counsel to advance his position in acceptable legal terms.’” Sangricco, at 133, 415 A.2d at 68, quoting [Commonwealth v.] Fiero, [ ] 341 A.2d [448,] 450 [(Pa. 1975)].

* * *

Though the foregoing decisions predate adoption of the Post Conviction Relief Act and current Rules of Criminal Procedure 1504 and 1507, this Court has held more recently that “one constant remains as a holdover, from the prior law: an indigent defendant shall be availed the opportunity to secure the appointment of counsel to aid in the perfection of his first petition seeking post- conviction collateral relief.” [Commonwealth v.] Kaufmann, 592 A.2d [691,] 698 [(Pa. Super. 1991)]. We find also that, as under our prior law, “[t]his rule is not limited to mere naming of an attorney to represent an accused, but also envisions that counsel so appointed shall have the opportunity and in fact discharge the responsibilities required by his representation.” Fiero, 341 A.2d at 450. Accordingly, where, as under our prior case law, the record fails to demonstrate meaningful participation by counsel appointed to represent an indigent

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petitioner filing his first petition, we will remand for appointment of new counsel.

Hampton, 718 A.2d at 1253-54 (some emphasis original, some emphasis

added). Therefore, where an appellant’s right to representation has “been

effectively denied by the action of court or counsel, the petitioner is entitled

to a remand to the PCRA court for appointment of counsel to prosecute the

PCRA petition. The remand serves to give the petitioner the benefit of

competent counsel at each stage of post-conviction review.”

Commonwealth v. Kenney, 732 A.2d 1161, 1164 (Pa. 1999).

In this case, the PCRA court found that Attorney Hathaway provided

ineffective assistance when he failed to file a notice of appeal on behalf of

Appellant following the denial of Appellant’s first PCRA petition. Despite that

finding, the PCRA court reappointed Attorney Hathaway to represent

Appellant.

Appellant once again challenged Attorney Hathaway’s effectiveness as

PCRA counsel, asserting that Attorney Hathaway failed to meaningfully amend

Appellant’s PCRA petition beyond what was averred in Appellant’s pro se filing.

Our review of the certified record reveals that the “Supplement to Motion for

Post Conviction Relief” filed by Attorney Hathaway is deficient. For example,

in his first paragraph, Attorney Hathaway states:

The Petitioner has instructed counsel that he does not want any changes made to his pro se PCRA Petitions and the claims enumerated therein and said claims are to be submitted to the Court as is. Therefore, counsel respectfully submits the pro se pleading of the Petitioner in support of his prayer for collateral

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relief in the nature of the provision of a new trial or the entry of an arrest of judgment.

Supplement to Motion for Post Conviction Relief, 1/16/18 (emphasis added).

Yet, in the following paragraph, Attorney Hathaway contradicts the prior

paragraph, stating: “The Petitioner does seek to amend his claims to

include two additional claims. . . .” Id. (emphasis added).

Moreover, our review of Appellant’s appellate brief reveals numerous

errors and omissions in violation of the Rules of Appellate Procedure; these

errors are significant in that they provide this Court with no basis upon which

to review Appellant’s claims. Commonwealth v. Hakala, 900 A.2d 404, 406

(Pa. Super. 2006). As stated above, Appellant presents six questions for our

review. See Appellant’s Brief at 2. However, Appellant’s argument section

fails to provide support for any of his six issues. For example, the entire

argument relative to Appellant’s first issue reads: “The trial Court denied the

Petitioner his constitutional right to represent himself without legal basis or

justification. The appellant had the absolute right to self-representation at

time of trial, which the trial Court rejected and compelled him to proceed with

court-appointed counsel.” Id. at 4. This issue is unreviewable for two

reasons. First, this argument fails to include any pertinent discussion of the

issue, including citations to legal authority or the record. See Pa.R.A.P.

2119(a) (requiring that an appellant develop an argument with citation to and

analysis of relevant legal authority). Second, Attorney Hathaway failed to

request transcription of the Grazier hearing. Our law is unequivocal that the

responsibility rests on the appellant to ensure that the record certified on

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appeal is complete in the sense that it contain all of the material necessary

for the reviewing court to perform its duty. Commonwealth v. Kleinicke,

895 A.2d 562, 575 (Pa. Super. 2006) (en banc). The Rules of Appellate

Procedure require an appellant to order and pay for any transcript necessary

to permit resolution of the issues raised on appeal. Pa.R.A.P. 1911(a). When

the appellant fails to conform to the requirements of Rule 1911, any claims

that cannot be resolved in the absence of the necessary transcripts must be

deemed waived for the purposes of appellate review. Commonwealth v.

Williams, 715 A.2d 1101, 1105 (Pa. 1998).

In another example, relative to issue three – “whether the trial was

tainted given juror misconduct” – Attorney Hathaway abandoned this issue on

appeal by failing to brief the issue. See Appellant’s Brief at 4-7; see also

Gurley v. Janssen Pharmaceuticals, Inc., 113 A.3d 283, 288 n.11 (Pa.

Super. 2015) (issue is waived for purposes of appellate review when an

appellant does not develop it in brief). The Pennsylvania Supreme Court has

long held that it is not this Court’s obligation to formulate arguments on behalf

of an appellant. Commonwealth v. Wright, 961 A.2d 119, 135 (Pa. 2008);

see also Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)

(stating “where an appellate brief fails to provide any discussion of a claim

with citation to relevant authority or fails to develop the issue in any other

meaningful fashion capable of review, that claim is waived”);

Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002) (“[I]t is a well-

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settled principle of appellate jurisprudence that undeveloped claims are

waived and unreviewable on appeal.”).

In sum, because Appellant did not waive his right to representation by

counsel and PCRA counsel failed to meaningfully represent Appellant on the

merits of Appellant’s PCRA petition, we vacate the PCRA court’s order

dismissing Appellant’s petition and remand to the PCRA court for appointment

of new PCRA counsel.7 Upon remand, we direct the PCRA court to withhold

compensation from Attorney Hathaway for representation in this case. The

PCRA court is directed to appoint Appellant new counsel within 15 days of the

date of this memorandum. Following his or her appointment, new counsel

shall be permitted to file an amended PCRA petition, or, if counsel concludes

in the exercise of his or her professional judgment that the issues raised in

the PCRA proceeding are without merit, counsel may file an adequate no-merit

letter that addresses all of the issues raised in Appellant’s pro se PCRA petition

and move to withdraw.

Order vacated. Case remanded with instructions relative to the

appointment of new PCRA counsel. Jurisdiction relinquished.

7 We note this Court’s recent findings of Attorney Hathaway’s ineffective assistance in the following unrelated appeals: Nos. 116 & 118 WDA 2019 (per se ineffectiveness, all issues waived), and No. 216 WDA 2019 (per se ineffectiveness, all issues waived).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/14/2019

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