Commonwealth v. Cherry
155 A.3d 1080
| Pa. Super. Ct. | 2017Background
- Lamont Cherry was convicted by a jury of third-degree murder for the death of a one-year-old and sentenced to 20–40 years’ imprisonment on December 21, 2011.
- Direct appeal affirmed by this Court on July 12, 2013; judgment became final on August 12, 2013.
- Cherry filed a pro se first PCRA petition (filed May 2014); the court appointed PCRA counsel Jeffrey Yelen but counsel did not amend the petition or file a Turner/Finley withdrawal certification.
- At an eight-minute PCRA hearing Cherry agreed to submit on his pro se filings without presenting evidence; counsel took no affirmative steps to amend or withdraw.
- PCRA court denied relief on June 18, 2015; on appeal the Superior Court concluded Cherry was effectively denied counsel and vacated and remanded for appointment/continued representation and for opportunity to file an amended PCRA petition or a Turner/Finley letter.
Issues
| Issue | Cherry’s Argument | Commonwealth’s Argument | Held |
|---|---|---|---|
| Whether Cherry’s first PCRA was litigated with constitutionally adequate counsel | Cherry argued appointed PCRA counsel failed to perform required duties (did not amend petition or file Turner/Finley), effectively denying his right to counsel | Commonwealth argued Cherry insisted on proceeding on his pro se submissions and that his claims were legally inadequate | Court held Cherry was effectively denied counsel; remanded for appointment/confirmation of counsel and permitted filing of amended petition or Turner/Finley letter |
| Whether remand is required to consider recusal for alleged appearance of bias by the PCRA judge | Cherry sought remand to allow recusal proceedings to address due process concerns | Commonwealth disputed need, noting Cherry had relied on his filings and did not adequately frame issues | Court did not decide recusal on the merits; remand gives opportunity for proper development of claims including any recusal request in the PCRA court |
| Whether trial counsel was ineffective for failing to raise double jeopardy to bar retrial | Cherry contended trial counsel should have asserted double jeopardy to prevent retrial after a mistrial | Commonwealth addressed substantive claims below but, on appeal, focused on procedural posture | Court did not reach merits of ineffective-assistance or double jeopardy claims; left them to be raised/briefed on remand by counsel |
| Whether appointed appellate counsel could withdraw under Turner/Finley absent PCRA counsel performing duties | Cherry argued appointed counsel must either amend or certify lack of merit; failure makes proceedings uncounseled | Commonwealth argued the record showed Cherry’s submissions were inadequate and addressed by Commonwealth | Court reiterated rule that appointed counsel must amend or comply with Turner/Finley; where counsel fails, petition is effectively uncounseled and remand is required |
Key Cases Cited
- Commonwealth v. Fears, 86 A.3d 795 (Pa. 2014) (standard of review for PCRA denials)
- Commonwealth v. Robinson, 970 A.2d 455 (Pa. Super. 2009) (en banc) (right to counsel for first PCRA through appellate process)
- Commonwealth v. Powell, 787 A.2d 1017 (Pa. Super. 2001) (counsel must amend petition or comply with Turner/Finley; failure renders petition effectively uncounseled)
- Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (requirements for a defendant to proceed pro se)
- Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (procedures for counsel seeking to withdraw from PCRA representation)
- Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) (turner/finley withdrawal protocol for PCRA counsel)