Com. v. Zamichieli, L.
This text of Com. v. Zamichieli, L. (Com. v. Zamichieli, L.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
J-S26045-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LAMONT ZAMICHIELI : : Appellant : No. 1420 MDA 2020
Appeal from the PCRA Order Entered September 18, 2020 In the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-CR-0000418-2017
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 09, 2021
Lamont Zamichieli (“Zamichieli”) appeals from the Order dismissing his
first Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We vacate the PCRA court’s Order and
remand with instructions.
On March 18, 2019, a jury found Zamichieli guilty of two counts of
aggravated harassment by prisoner, and one count each of indecent assault
and harassment after sending sexually explicit, semen-stained letters to two
women while he was in prison for an unrelated offense. The trial court
sentenced Zamichieli to an aggregate term of 54 to 168 months in prison.
Zamichieli filed a Notice of Appeal on May 14, 2019. This Court affirmed J-S26045-21
Zamichieli’s judgment of sentence on December 20, 2019.1 See
Commonwealth v. Zamichieli, 225 A.3d 1177 (Pa. Super. 2019)
(unpublished memorandum).
On June 25, 2020, Zamichieli filed the instant, timely pro se PCRA
Petition, alleging, inter alia, ineffective assistance of counsel. The following
day, the PCRA court issued Pa.R.Crim.P. 907 Notice of its intent to dismiss
Zamichieli’s PCRA Petition. The PCRA court stated, in part, that the Petition
was untimely filed. Zamichieli filed a pro se Response, challenging the PCRA
court’s finding that his Petition was untimely filed. On August 28, 2020, the
PCRA court issued an Order acknowledging that it had improperly determined
that Zamichieli’s PCRA Petition was untimely filed, and rescinding its prior
Notice. The PCRA court issued Rule 907 Notice of its intent to dismiss
Zamichieli’s PCRA Petition on the basis that it lacked merit. Zamichieli filed a
pro se Response. Zamichieli also filed a Motion, seeking removal of
Christopher B. Wencker, Esquire (“Attorney Wencker”), as his counsel, and
seeking the appointment of new counsel. On September 18, 2020, the PCRA
court dismissed Zamichieli’s PCRA Petition, and denied his Motion as moot,
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1 After filing his direct appeal, but before this Court issued its decision, Zamichieli filed a pro se “Motion for Post Conviction Collateral Relief” on June 25, 2020.
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since Attorney Wencker had not been appointed to represent Zamichieli in
PCRA proceedings.2
Zamichieli, pro se, filed a timely Notice of Appeal. On December 17,
2020, this Court issued an Order noting that Zamichieli had filed a pro se
appeal, and the docket did not indicate that Zamichieli had PCRA counsel.
Accordingly, this Court directed the PCRA court to resolve any issues regarding
Zamichieli’s representation. In response, on December 30, 2020, the PCRA
court appointed William Tressler, Esquire (“Attorney Tressler”), as counsel.
This Court subsequently directed Attorney Tressler to enter his appearance
2 Attorney Wencker also filed a Petition to Withdraw as Counsel on September
18, 2020, citing a conflict of interests with Zamichieli. Despite its previous finding that Attorney Wencker had never been appointed as PCRA counsel, the PCRA court granted the Petition to Withdraw.
-3- J-S26045-21
and struck Zamichieli’s pro se appellate brief.3 Attorney Tressler filed an
appellate brief on Zamichieli’s behalf.
On appeal, Zamichieli argues that the PCRA court denied him the right
to counsel during the pendency of his first PCRA Petition. See Brief for
Appellant at 7-9.
Pennsylvania Rule of Criminal Procedure 904 provides, in relevant part,
that, “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). “[A]n indigent first-time
PCRA petitioner is entitled to the assistance of counsel….” Commonwealth
v. Smith, 818 A.2d 494, 501 (Pa. 2003). “Where that right has been
effectively denied by the action of court or counsel, the petitioner is entitled
3 Despite being represented by counsel, Zamichieli continued to file pro se documents in this Court. On June 4, 2021, Zamichieli filed a pro se Motion, seeking the withdrawal of Attorney Tressler. As Attorney Tressler had filed an appellate brief on Zamichieli’s behalf, this Court denied the Motion. Zamichieli subsequently filed a pro se “Notice of Appeal,” in which he sought reconsideration of this Court’s Order denying his Motion seeking Attorney Tressler’s withdrawal. Because the pro se filing sought reconsideration, this Court dismissed Zamichieli’s “Notice of Appeal.” On August 2, 2021, Zamichieli filed a pro se Motion, again seeking Attorney Tressler’s removal, and claiming that Attorney Tressler had made racially and sexually threatening comments to Zamichieli and his family members. This Court denied this Motion as well. See generally Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016) (stating that “[i]n this Commonwealth, hybrid representation is not permitted[,]” and explaining that “this Court will not accept a pro se motion while an appellant is represented by counsel….”).
-4- J-S26045-21
to a remand to the PCRA court for appointment of counsel to prosecute the
PCRA petition.” Commonwealth v. Cox, 204 A.3d 371, 391 (Pa. 2019).
Here, the record reflects that Zamichieli’s instant, pro se, PCRA Petition
is his first. The record reflects that the PCRA court filed its Rule 907 Notice
the day after Zamichieli filed his pro se Petition, and did not appoint PCRA
counsel to assist Zamichieli during the PCRA proceedings. The record is also
devoid of any indication that a hearing was held pursuant to Commonwealth
v. Grazier, 713 A.2d 81 (Pa. 1988), to determine whether Zamichieli wished
to proceed pro se. Indeed, given the PCRA court’s nearly immediate issuance
of a Rule 907 Notice, it is unlikely that either action was possible.
Moreover, in response to this Court’s Order directing the PCRA court to
clarify whether Zamichieli was provided counsel, the PCRA court failed to
respond, instead appointing counsel to Zamichieli for his PCRA appeal. The
appointment of counsel to assist with a collateral appeal does not satisfy
Zamichieli’s right to counsel to assist the prosecution of his first PCRA Petition.
Thus, because Zamichieli was denied his right to counsel, we vacate the
PCRA court’s Order dismissing Zamichieli’s first PCRA Petition, and remand the
matter to the PCRA court for appropriate proceedings under the PCRA. See
Smith, supra. On remand, the PCRA court shall determine whether
Zamichieli is entitled to the appointment of counsel pursuant to Pa.R.Crim.P.
904, and whether Zamichieli wishes to proceed pro se or with the assistance
of counsel.
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