Com. v. Ellis, R.
Com. v. Ellis, R. No. 1642 WDA 2016
| Pa. Super. Ct. | May 23, 2017Background
- Appellant Russell L. Ellis pleaded guilty (March 7, 2014) to manufacture/deliver/possession with intent to deliver controlled substances and was sentenced April 28, 2014 to 60–120 months’ incarceration, a $30,000 fine, and costs; no direct appeal was filed.
- Appellant filed a first PCRA petition April 30, 2014; counsel William J. Hathaway was appointed, filed a Turner/Finley "no-merit" submission and petition to withdraw, and the PCRA court denied relief and granted withdrawal; Appellant’s pro se appeal was dismissed for failure to file a brief.
- Appellant filed a second (pro se) PCRA petition April 15, 2016 asserting an illegal-sentence claim under Alleyne and other ineffective-assistance claims; Hathaway was again appointed and filed an amended petition.
- The Commonwealth responded; the PCRA court issued a Rule 907 notice and then dismissed the second petition on September 28, 2016 for lack of objections; Appellant timely appealed pro se.
- The Superior Court sua sponte reviewed whether appointed PCRA counsel had properly sought withdrawal under Turner/Finley and whether the PCRA court complied with Grazier when any waiver of counsel occurred; the record was ambiguous about counsel’s status and possible hybrid representation.
- The Superior Court remanded for the PCRA court to clarify whether (1) Appellant knowingly and voluntarily waived counsel per Grazier, (2) counsel validly withdrew under Turner/Finley, or (3) new counsel should be appointed; panel jurisdiction was retained.
Issues
| Issue | Appellant's Argument | Commonwealth/PCRA Court Argument | Held |
|---|---|---|---|
| Whether Alleyne renders sentence illegal and thus subject to PCRA relief | Alleyne invalidates his sentence because facts increasing mandatory minimums must be found by jury | PCRA court dismissed petition as untimely and did not reach merits | Court remanded—not ruling on Alleyne merit—because procedural question about counsel’s withdrawal had to be resolved first |
| Whether appointed PCRA counsel properly withdrew under Turner/Finley | Appellant contends counsel failed to file objections/respond to Rule 907 and was ineffective | Record shows a "no-merit" filing earlier and an unsigned/untimely "objection" by counsel; PCRA court treated Hathaway as counsel of record | Court found no record of a proper Turner/Finley withdrawal and ordered PCRA court to clarify on remand |
| Whether Appellant knowingly waived right to counsel (Grazier) | Appellant implies he thought counsel would file responses and claims counsel was ineffective for not doing so | PCRA court did not conduct an on-the-record Grazier colloquy and continued to copy counsel on filings | Court required PCRA court to determine whether any waiver complied with Grazier; if not, appoint new counsel |
| Whether appeal should be quashed for hybrid representation | Appellant proceeded pro se on appeal; court had only a pro se brief though counsel remained on record | Commonwealth/PCRA court treated Hathaway as counsel of record, creating ambiguity | Court deferred quash and remanded for clarification; if withdrawal improper, appoint counsel and permit nunc pro tunc 1925(b) if needed |
Key Cases Cited
- Alleyne v. United States, 570 U.S. 99 (2013) (facts increasing mandatory minimum must be found by jury)
- Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (requirements for counsel’s withdrawal in post-conviction proceedings)
- Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) (procedures for court-appointed counsel to withdraw on collateral review)
- Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (standards for a defendant’s waiver of counsel on the record)
- Commonwealth v. Jackson, 965 A.2d 280 (Pa. Super. 2009) (appointment of counsel in subsequent PCRA petitions and withdrawal obligations)
- Commonwealth v. Glacken, 32 A.3d 750 (Pa. Super. 2011) (quashing appeal where hybrid representation occurred and counsel never properly permitted to withdraw)