Com. v. Perkins, L.
1038 MDA 2015
| Pa. Super. Ct. | Oct 18, 2016Background
- Perkins filed a pro se PCRA petition and was appointed counsel, who filed an amended petition and requested an evidentiary hearing. A hearing occurred on February 18, 2015.
- After the hearing, the court (unnecessarily, the dissent contends) issued a Rule 907 notice of intent to dismiss on March 23, 2015; Perkins claims he was not served with that notice and sought service on April 23, 2015.
- Perkins filed pro se objections to the Rule 907 notice asserting he wanted to preserve claims that PCRA counsel (appointed counsel) was ineffective; he did not move to proceed pro se or to amend the petition at that time.
- On May 6, 2015, the PCRA court denied Perkins’s PCRA petition and denied his motion to compel service, citing the rule against hybrid representation because Perkins was represented by counsel.
- Counsel (Tobias) filed to withdraw on May 14, 2015, citing a conflict because Perkins sought to raise claims of her ineffectiveness; the court granted the withdrawal and later ordered a concise statement; Perkins now proceeds pro se on appeal.
- The dissenting opinion argues the trial court properly rejected pro se filings while counsel remained appointed and that permitting Perkins’s pro se response to preserve claims of PCRA-counsel ineffectiveness improperly revives hybrid-representation procedures rejected by the Pennsylvania Supreme Court.
Issues
| Issue | Plaintiff's Argument (Perkins) | Defendant's Argument (Commonwealth / PCRA court) | Held |
|---|---|---|---|
| Whether Perkins preserved claims of PCRA counsel ineffectiveness by filing a pro se response to the post-hearing Rule 907 notice | Perkins says his pro se response to the notice preserved PCRA-counsel ineffectiveness claims for appeal (Pitts route) | PCRA court/Commonwealth argue response was improper while counsel remained appointed; claims cannot be raised first on appeal (Henkel/Jette) | Dissent: court properly denied the pro se response; preservation not achieved because hybrid representation is prohibited and counsel had not withdrawn |
| Whether the PCRA court erred in refusing to consider pro se filings while appointed counsel remained | Perkins contends the notice required a response and thus he had to raise counsel-ineffectiveness then | PCRA court relied on the rule against hybrid representation and precedent forbidding courts from entertaining pro se filings while counsel represents petitioner | Dissent: refusal was correct under Jette and related precedent; trial court not required to act on pro se filings while counsel was representing Perkins |
| Whether the post-hearing Rule 907 notice (issued despite a hearing) changed preservation rules for PCRA-counsel ineffectiveness claims | Perkins views the notice as an opportunity to preserve such claims; cites Pitts and Henkel for requiring raising ineffectiveness in response to notice | Commonwealth/PCRA court view the notice as unnecessary after a hearing; Rule 908(D)(1) requires an order denying relief after hearing; no right to hybrid filings | Dissent: unnecessary notice does not override hybrid-representation rules; issuing the notice does not entitle Perkins to act pro se while represented |
| Whether counsel’s withdrawal and subsequent remand for a Grazier hearing was required | Perkins argues he should have been allowed to choose between retained counsel or proceeding pro se on appeal (Grazier) | PCRA court allowed withdrawal; dissent says withdrawal was improper because Perkins was entitled to counsel for PCRA appeal and should have been offered a Grazier colloquy | Dissent: agrees withdrawal was improperly permitted and would remand for a Grazier hearing so Perkins can elect counsel or self-representation |
Key Cases Cited
- Commonwealth v. Pitts, 961 A.2d 875 (Pa. 2010) (addresses preservation of claims when PCRA counsel files a Turner/Finley no‑merit letter)
- Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super. 2014) (claims of PCRA counsel ineffectiveness cannot be raised for the first time on appeal)
- Commonwealth v. Jette, 23 A.3d 1032 (Pa. Super. 2011) (rejects Battle procedure; bars courts from entertaining pro se filings while counsel still represents appellant)
- Commonwealth v. Rykard, 55 A.3d 1177 (Pa. Super. 2012) (distinguishes Turner/Finley no‑merit responses from ordinary Rule 907 responses)
- Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012) (explains when hybrid representation is permissible after a no‑merit letter)
- Commonwealth v. Battle, 879 A.2d 266 (Pa. Super. 2005) (earlier procedure requiring appointed counsel to address pro se claims of appellate counsel ineffectiveness)
- Commonwealth v. Ligons, 971 A.2d 1125 (Pa. 2009) (supports rule against hybrid representation)
- Commonwealth v. Ellis, 626 A.2d 1137 (Pa. 1993) (addresses hybrid representation prohibition)
- Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (sets standard for colloquy when a defendant elects to proceed pro se)