Commonwealth v. Pitts

981 A.2d 875, 603 Pa. 1, 2009 Pa. LEXIS 2209

Opinions

OPINION

EAKIN, Justice.

The Commonwealth appeals from the Superior Court’s order vacating the order denjnng appellee, Dexter Pitts, relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq., dismissing Pitts’s PCRA petition, and granting PCRA counsel’s request to withdraw; the Superior Court remanded for the filing of an amended PCRA petition. Finding the Superior Court erred in concluding PCRA counsel did not comply with the dictates of Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988) (en banc)¹ for withdrawal, we reverse.

In January and May, 2003, Pitts pled guilty to simple assault and ten counts of burglary. He was sentenced to an aggregate 21 to 42 years imprisonment and a consecutive ten-year probation term. Plea counsel, who also represented Pitts at sentencing, filed a petition to vacate and reconsider sentence on the basis of Pitts’s remorse, drug addiction, age, and the fact the burglaries did not involve violence, as no one was present in the hotel rooms he burglarized; the motion was denied.² No direct appeal was filed.

In June, 2003, Pitts filed a pro se PCRA petition alleging he pled guilty based on counsel’s mistaken advice that he would receive a maximum sentence of five to ten years imprisonment. PCRA counsel was appointed, but did not file an amended petition. Instead, counsel filed a no-merit letter pursuant to Tumer/Finley, alleging she had reviewed Pitts’s files, the notes of testimony from his pleas and sentencing, and had communicated with Pitts. See Original Record D-5, Tumer/Finley Letter, 7/22/04, at 1. Based upon this review, she stated the issue raised in Pitts’s PCRA petition — the voluntariness of his plea — lacked merit, and gave a thorough explanation of why the issue was meritless. Id., at 3-5. Counsel further averred there were no other viable issues which could be raised in an amended petition, id., at 1, and accordingly sought leave to withdraw from the case. Id., at 5. After giving the requisite notice of its intent to dismiss Pitts’s petition without a hearing, see Pa.R.Crim.P. 907(1), and receiving no reply from Pitts, the PCRA court dismissed the petition as meritless and granted counsel’s request to withdraw.

Pitts filed a pro se appeal, in which he did not raise the guilty plea issue argued in his PCRA petition. Instead, he raised a new issue: whether PCRA counsel was ineffective for failing to raise plea counsel’s ineffectiveness for not filing a direct appeal. See Commonwealth v. Pitts, No. 2929 EDA 2004, unpublished memorandum at 2 (Pa.Super. filed January 26, 2006).

The Superior Court vacated the PCRA court’s order and remanded for an evidentiary hearing, concluding:

In view of [Pitts’s] claim that he communicated his desire to appeal to [plea counsel], we find that [Pitts] has pleaded sufficient facts upon which PCRA counsel could have amended the petition to include a claim of [plea] counsel ineffectiveness. Had PCRA counsel pleaded these facts and obtained an affidavit from [Pitts] which attested to them, an evidentiary hearing on this claim would have been warranted.

Moreover, [Pitts] has stated that he asked his PCRA counsel to amend the petition to include this claim and that she neglected to do so. In our view, such an allegation, if believed by the PCRA court, satisfies the arguable basis prong of the PCRA ineffectiveness claim. Moreover, if PCRA counsel failed to raise this meritorious claim, we may only conclude that [Pitts] suffered prejudice (ie. the loss of the reinstatement of his direct appeal rights). [Commonwealth v.] Lantzy, [558 Pa. 214, 736 A.2d 564, 572 (Pa.1999).]

Id., at 5-6. Thus, although Pitts had not filed affidavits asserting he asked plea counsel and PCRA counsel about a direct appeal, the Superior Court remanded for an evidentiary hearing on Pitts’s layered ineffectiveness claim.

The Commonwealth moved for reconsideration, which the Superior Court granted. The Superior Court again vacated the PCRA court’s order, this time focusing on PCRA counsel’s Tumer/Finley letter. See Commonwealth v. Pitts, No. 2929 EDA 2004, unpublished memorandum at 4, 915 A.2d 148 (Pa.Super. filed October 27, 2006) (“Although [Pitts] contends that his PCRA counsel rendered ineffective assistance, we must first determine whether the PCRA court properly permitted counsel to withdraw.”) (citing Commonwealth v. Friend, 896 A.2d 607, 612 (Pa.Super.2006)). The court concluded the PCRA court improperly permitted counsel to withdraw on the basis of her no-merit letter. Id., at 5. It noted counsel did not analyze whether Pitts could mount a successful challenge to the discretionary aspects of his sentence:

While we recognize that a claim challenging the discretionary aspects of sentence is not cognizable under the PCRA, see Friend, supra at 616 n. 15, counsel did not even articulate whether [Pitts] could satisfy the requirements for reinstatement of his direct appeal rights under Commonwealth v. Lantzy, [558 Pa. 214], 736 A.2d 564 ([Pa.] 1999) and its progeny. If the PCRA court reinstated [Pitts’s] direct appeal rights, [he] could petition for review of the sentencing claims that his [plea] counsel raised....

Id., at 6. The Superior Court also noted PCRA counsel did not explore whether plea counsel was ineffective for failing to raise other challenges to the discretionary aspects of sentence in the motion to vacate and reconsider sentence. Id., at 6-7. Accordingly, the court concluded PCRA counsel had not complied with the Twrner/Finley withdrawal requirements because, although the no-merit letter indicated Pitts’s dissatisfaction with the length of his sentence, it failed to explain why Pitts could not obtain relief on this claim. Id., at 7.

Further, the court addressed PCRA counsel’s failure to discuss plea counsel’s failure to file a direct appeal:

Although the existing record does not permit us to conclude whether [Pitts] asked his [plea] counsel to file a direct appeal, we find PCRA counsel’s silence on this issue troubling. It is inconceivable that any PCRA counsel would not inquire into the reasons for his/her client’s failure to pursue a direct appeal. If PCRA counsel considered this issue, discussed it with her client, and then discounted it, she should have explained her reasons for doing so in the no-merit letter. However, if [Pitts] asked his [plea] counsel to file an appeal (as he indicates in his appellate brief), [PCRA] counsel should have filed an amended petition and sought an evidentiary hearing.

Id., at 8. The court determined PCRA counsel failed to comply with Tumer/Finley; thus, it vacated the PCRA court’s order and remanded “for the filing of an amended [PCRA] petition in 'which counsel properly pleads and proves (1) each of the claims raised in [Pitts’s] pro se petition, (2) any issues raised in subsequent discussion/correspondence with [Pitts,] and (3) any other issues apparent from the certified record.” Id., at 8-9 (emphasis in original). It further ordered PCRA counsel to approach Pitts about signing an affidavit regarding his assertion he asked plea counsel to file a direct appeal. Id., at 9 (citing Pa.R.Crim.P. 902(A)(12) and (D) (petition must include facts supporting petition and place in record where they appear; to extent they do not appear in record, petition must include affidavits, documents, and other evidence showing such facts)).

We granted allowance of appeal to determine whether the Superior Court erred in creating new Tumer/Finley requirements, sua sponte, by finding PCRA counsel’s no-merit letter defective for failing to address issues Pitts never raised, and which were not apparent from the record. See Commonwealth v. Pitts, 596 Pa. 258, 942 A.2d 893 (2008).

In PCRA proceedings, an appellate court’s- scope of review is limited by the PCRA’s parameters; since most PCRA appeals involve mixed questions of fact and law, the standard of review is whether the PCRA court’s findings are supported by the record and free of legal error. Commonwealth v. Strong, 563 Pa. 455, 761 A.2d 1167, 1170 n. 3 (2000).

The Commonwealth argues the Superior Court should not have addressed whether PCRA counsel’s no-merit letter met the Tumer/Finley requirements, as any claim regarding the no-merit letter was waived — -Pitts did not raise it in the PCRA court during the 20-day response period provided by Pa. R.Crim.P. 907(1). The Commonwealth further argues PCRA counsel’s no-merit letter complied with the Tumer/Finley requirements, and the Superior Court should not have, sita sponte, created the requirement that counsel explain why all conceivable claims for relief are meritless.

Pitts counters by asserting the first time he could challenge PCRA counsel’s stewardship was on collateral appeal from the denial of his PCRA petition, as that was the first time he was no longer represented by PCRA counsel; therefore, the issue regarding counsel’s withdrawal was not waived. He echoes the Superior Court’s conclusion that PCRA counsel should have realized he was unhappy with his sentence and the only way to challenge the discretionary aspects of his sentence was to obtain reinstatement of his direct appeal rights; this required PCRA counsel to file an amended PCRA petition alleging plea counsel’s ineffectiveness for failing to file a direct appeal.

In examining the adequacy of PCRA counsel’s no-merit letter before addressing the merits of Pitts’s ineffectiveness claim, the Superior Court relied on Friend. There, the defendant filed a timely pro se PCRA petition. Counsel was appointed, but did not amend the petition; instead, she filed a motion to withdraw and a no-merit letter stating there were no viable issues under the PCRA which would afford relief. The PCRA court issued notice pursuant to Pa.R.Crim.P. 907 that it intended to dismiss the defendant’s petition without a hearing; however, the court did not afford the defendant 20 days to respond, as required by the Rule, and instead contemporaneously dismissed the petition. The defendant appealed pro se, contending appellate counsel was ineffective for failing to develop or perfect issues to be presented on direct appeal, and for failing to petition this Court for review.

In a per curiam decision, the Superior Court stated, “Prior to addressing these questions, however, we are obliged to examine the procedures that preceded this appeal, specifically the efforts by appointed counsel to withdraw and the ultimate dismissal of the underlying PCRA petition.” Friend, at 612. The court, after reiterating the Tumer/Finley requirements, added an additional requirement:

PCRA counsel who seeks to withdraw must contemporaneously sene a copy on the petitioner of counsel’s application to withdraw as counsel, and must supply to the petitioner both a copy of the “no-merit” letter and a statement advising the petitioner that, in the event that the court grants the application of counsel to withdraw, he or she has the right to proceed pro se or with the assistance of privately retained counsel.

Id., at 614 (emphasis in original). The court noted the requirement was to be applied prospectively. Id., at 614-15 & n. 11. Observing that counsel never apprised the defendant of his case status or his rights in the event the court granted the withdrawal petition, the court concluded these omissions were compounded by the PCRA court’s failure to afford the defendant 20 days to respond to the Rule 907 notice. Id., at 615. Accordingly, the court held the trial court’s failure to comply with the Rules of Criminal Procedure necessitated vacating the PCRA court’s order and remanding for further proceedings. Id., at 616.

The Friend court was justifiably concerned that PCRA counsel who wishes to withdraw should fulfill certain minimum obligations to his client before being relieved of his responsibilities; however, in holding it was “obliged to” rule on the adequacy of PCRA counsel’s no-merit letter, Id., at 612, when such issue was not raised by the parties, the court went beyond the parameters of appropriate appellate review. To the extent Friend stands for the proposition that an appellate court may sua sponte review the sufficiency of a no-merit letter when the defendant has not raised such issue, we disavow such holding.³

Accordingly, the Superior Court’s decision, based on the proposition in Friend, was in error. The only issue Pitts sought to raise before the Superior Court was whether PCRA counsel should have raised the issue of plea counsel’s failure to pursue a direct appeal.⁴ Neither party raised the issue of the adequacy of PCRA counsel’s no-merit letter, the Commonwealth was not afforded the opportunity to provide advocacy on the issue, and the Superior Court should not have resolved the appeal on an issue not before it. Pitts’s appeal was from the denial of his PCRA petition complaining of the involuntariness of his plea and his lengthy sentence;⁵ he sought reinstatement of his direct appeal rights so he could raise these issues. Such an appeal should not result in chastisement of counsel and an order for an amended PCRA petition with mandatory contents and proof, to include issues never raised.

Thus, it was error for the Superior Comt to review the adequacy of counsel’s no-merit letter and to remand for amendment of Pitts’s PCRA petition, dictating the contents; we reverse the Superior Court’s order and reinstate the PCRA court’s order dismissing Pitts’s PCRA petition without a hearing and granting counsel leave to withdraw.

Order reversed.

Chief Justice CASTILLE, and Justice McCAFFERY and Justice GREENSPAN join the opinion. Chief Justice CASTILLE files a concurring opinion. Justice BAER files a dissenting opinion in which Justice SAYLOR and Justice TODD join.

Footnotes

1

. These cases establish the procedure for withdrawal of court-appointed counsel in collateral attacks on criminal convictions. Independent review of the record by competent counsel is required before withdrawal is permitted. Turner, at 928 (citing Pennsylvania v. Finley, 481 U.S. 551, 558, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987)). Such independent review requires proof of:

1) A "no-merit” letter by PC[R]A counsel detailing the nature and extent of his review;

2) The "no-merit” letter by PC[R1A counsel listing each issue the petitioner wished to have reviewed;

3) The PC[R]A counsel's "explanation”, in the "no-merit” letter, of why the petitioner's issues were meritless;

4) The PC[R]A court conducting its own independent review of the record; and

5) The PC[R]A court agreeing with counsel that the petition was meritless.

Finley, 550 A.2d at 215. Hereinafter, "Finley " refers to the Superior Court's decision on remand from the United States Supreme Court, not the United Stales Supreme Court's decision.

2

. Pitts also filed a pro se motion to withdraw his plea, claiming counsel mistakenly advised him lo plead guilty and the trial court failed to advise him he could receive consecutive sentences. Then-Rule 576(C) of the Rules of Criminal Procedure provided where a defendant who is represented by counsel submits a motion, the clerk of courts "shall not docket or record it, but shall forward it to the defendant's attorney within [ten] days....” Pa.R.Crim.P. 576(C) (amended March 3, 2004, effective July 1, 2004). The current version of the Rule provides the clerk shall accept the motion for filing, time-stamp it, docket it, and forward a copy to the defendant's attorney within ten days. See id., 576(A)(4). The Rule in effect at the time of Pitts's pro se motion prohibited the clerk from filing it, and the record does not reveal whether the clerk forwarded the motion to Pitts’s counsel; the motion was never filed or ruled upon.

3

. The Commonwealth asserts Pitts waived any issue pertaining to the adequacy of PCRA counsel’s no-merit letter by failing to raise it during Rule 907's 20-day response period. We agree, finding Pitts's failure to challenge PCRA counsel's withdrawal upon his receipt of counsel's no-merit letter or within the 20-day period telling. Additionally, Pitts’s failure to raise the issue before the Superior Court on collateral appeal from the denial of his PCRA petition precludes consideration of it. See Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385, 397 (2003) (“It [is] 'elementary that issues not preserved for appellate review or, even if raised at the trial level, not raised by a party to an appeal, will not be considered by an appellate court.' ") (quoting Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174, 179 (1978)); Commonwealth v. Branham, 467 Pa. 605, 359 A.2d 766, 767 n. 3 (1976) (this Court has criticized practice of appellate courts reaching issues not presented by litigants).

4

. Furthermore, Pitts’s failure, prior to his PCRA appeal, to argue PCRA counsel's ineffectiveness for not raising the direct appeal issue results in waiver of the issue of PCRA counsel's ineffectiveness. Pitts’s attempt to obtain review, on collateral appeal, of an issue not raised in the proceedings below amounts to a serial PCRA petition on PCRA appeal. Although Pitts asserts his PCRA appeal was the first opportunity he had to challenge PCRA counsel's stewardship because he was no longer represented by PCRA counsel, he could have challenged PCRA counsel’s stewardship after receiving counsel’s withdrawal letter and the notice of the PCRA court's intent to dismiss his petition pursuant to Pa.R.Crim.P. 907, yet he failed to do so. Thus, the issue of whether PCRA counsel was ineffective for failing to raise the direct appeal issue was waived, and the Superior Court should not have reached it.

5

. "I plead [sic] [guilty] solely on the rushed advice of my attorney whom [sic] told me I would gel a certain amount of time and got so much more[.]” PCRA Petition, 7/1/03, at 6. Although Pitts mentioned the length of his sentence in connection with the voluntariness of his plea, his actual argument was he pled guilty in hopes of receiving a lesser sentence and was disappointed with the sentence the trial court imposed; he did not challenge the discretionary aspects of his sentence (i.e., the sentencing court's actions were inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process; see Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987)). While counsel's no-merit letter notes, "It is clear from correspondence .. . that [Pitts] is unhappy with the length of his sentence^] Original Record D-5, Turner/Finley Letter, 7/22/04, at 4-5, Pitts's real claim was plea counsel’s 'promise' " of a lesser sentence induced his plea, and had he known the trial court was going to impose the maximum sentence, he would rather have taken his chances before a jury and possibly been found not guilty.