Lead Opinion
This is an appeal by allowance from the Superior Court order reversing the PCRA court’s dismissal of Appellee Charles Kenney’s petition for post-conviction relief and remanding the case for trial. We reverse.
Appellee was charged in three separate criminal informations with various felonies arising from three separate incidents occurring during a twenty-four hour period spanning December 14 and 15, 1985. The first incident involved a forcible entry into an apartment where he raped a woman then stole various items after she fled. This incident was the basis for charges of burglary, rape, involuntary deviate sexual intercourse, and theft. Appellee was charged with robbery in connection with the second incident, in which he entered a retail establishment and forced an employee to give him cash from a register. Finally, Appellee robbed a gas station, repeatedly shooting at an attendant, striking him in the chest and back, for which he was charged with robbery, aggravated assault and violating the Uniform Firearms Act.
Appellee, represented by privately retained counsel Louis Coles, Esq., pleaded nolo contendere to each of the charges. Before accepting the plea, the trial court conducted a colloquy during which Appellee was informed of the maximum penalty for each charge but not of the fact that those sentences could be imposed consecutively. Appellee was then ordered to undergo a psychological and psychiatric evaluation at Fairview State Hospital for purposes of sentencing. He was discharged from the hospital in July, and on September 5, 1986, appeared for sentencing.
Appellee was sentenced to five to ten years imprisonment on the charges stemming from the robbery and shooting at the gas station; six to twenty years imprisonment for the burglary, rape and theft; and two and one-half to five years imprisonment for the remaining robbery conviction. The sentences on the three informations were imposed consecutive to each other resulting in an aggregate term of thirteen and one-half to thirty-five years incarceration. After sentencing, Mr. Coles filed a motion to withdraw the nolo contendere plea and to withdraw as counsel, alleging his own ineffectiveness in failing to investigate possible defenses and failing to keep abreast of developments in the case.
Mr. Corbett raised two issues on appeal: whether the trial court erred in denying Appellee’s motion to withdraw his plea, and whether Mr. Coles was ineffective in failing to move to withdraw Appellee’s plea prior to sentencing. The Superior Court found no merit in either claim and affirmed the judgment of sentence in February 1988.
Three years after his conviction became final, Appellee filed a 'pro se petition under the Post Conviction Relief Act
The Superior Court panel entered an order on May 15, 1995, indicating that it had received a brief from Ms. Beroes challenging the propriety of the PCRA court’s dismissal of the petition and subsequent motion for reconsideration without holding a hearing on either. The order concerned the court’s subsequent receipt of a pro se brief filed by Appellee challenging Ms. Beroes’ performance as PCRA counsel and affirmatively requesting her removal.
In his brief to the Superior Court, Mr. Tabano raised five claims including the claim that counsel at trial and on direct appeal were ineffective in not objecting to the plea colloquy on the grounds that Appellee was not informed that the sentences on each information could be imposed consecutively. See Commonwealth v. Persinger,
The Commonwealth first argues that this ineffectiveness claim was waived by virtue of Mr. Tabano’s failure to assert that PCRA counsel was ineffective for not raising this claim. “In order to preserve claims of ineffectiveness of counsel under the PCRA, the claims must be raised at the earliest stage in the proceedings at which the allegedly ineffective counsel is no longer representing the claimant.” Commonwealth v. Griffin,
The Superior Court sidestepped this waiver with the observation that Ms. Beroes’ performance was “so clearly lacking as to not even constitute representation of appellant.” Memo Op. at 5 n. 2. This finding is conspicuously absent from the court’s August 18, 1995, Judgment Order pursuant to which Mr. Tabano was appointed. That order was clearly based upon the limited finding that Ms. Beroes’ appellate brief was deficient, as reflected by the order which envisioned the filing of a new brief in that court. Appointment of new appellate counsel is the appropriate remedy where PCRA appellate counsel’s deficient performance deprives one of the right to appeal. See Commonwealth v. Albert,
Even accepting the accuracy of the Superior Court’s after-the-fact justification for addressing the merits of the instant claim, respectfully, we find that the court erred in addressing the merits of the Persinger claim. An indigent petitioner has the right to appointment of counsel to assist in prosecuting a first PCRA petition. Pa.R.Crim.P. 1504(a). Where that right has been effectively denied by the action of court or counsel, the petitioner is entitled to a remand to the PCRA court for appointment of counsel to prosecute the PCRA petition. Commonwealth v. Duffey,
Appellee clearly attacked the legal effectiveness of Ms. Beroes’ representation in the PCRA court in his pro se brief to the Superior Court. Yet, the Superior Court limited its remand order to the appointment of new counsel to prosecute the appeal, without regard to Appellee’s allegations regarding the crippling effect that Ms. Beroes’ shortcomings in the court below had on his ability to proceed with his claims at the appellate stage. As indicated, if the Superior Court agreed with Appellee that he had been wholly deprived of meaningful assistance of counsel in the PCRA court it should have directed the PCRA court to appoint new counsel to assist Appellee in prosecuting his claims in the lower court in furtherance of his right to competent appointed PCRA counsel under Pennsylvania Rule of Criminal Procedure 1504(a). If the court considered the record insufficient to adjudicate Appellee’s allegations against PCRA counsel, it should have remanded the case to the PCRA court to conduct further inquiry into the matter.
For the foregoing reasons we reverse the order of the Superior Court and remand the case to that court to address the remaining issues raised in this appeal.
Notes
. Appellee was involuntarily committed to Fairview State Hospital in the interim between sentencing and the filing of the motion to withdraw his plea due to severe depression and suicidal ideation.
. Two appeals from the judgment of sentence had previously been filed on Appellee’s behalf by Mr. Coles and Mr. Corbett, respectively. The Superior Court dismissed these appeals, presumably because the trial court retained jurisdiction in the case.
. 42 Pa.C.S. § 9541 etseq.
. In this brief, Appellee stated:
Elizabeth A. Beroes ... is and was ineffective. Her failure to recognize, properly brief and preserve the relevant issues during her representation, caused meritorious issues to be overlooked. Resulting in prejudice to appellant’s case and a promotion of a miscarriage of justice so blatant that, any meaningful opportunity for review of all the facts, issues, their underlying claims ... has been foregone or inadvertently waived as a result of P.C.R.A. and all prior counsel’s dereliction of duty.
Order, dated May 15, 1995, at 1-2.
. In Ellis, the Superior Court declared:
If a pro se brief is filed in a counseled appeal, we direct the prothonotary to send the pro se brief to counsel who is best able to determine in her professional judgment which of the pro se’s issues should be presented for our review. Counsel may argue such pertinent issues in her brief to the court, or if the appellate brief has been filed, she may file a supplemental brief addressing those same issues. If the pro se brief alleges ineffectiveness of appellate counsel or an affirmative desire to be heard pro se, we direct counsel to petition this court to remand the case to the trial court so that it may conduct a full hearing in order to determine appellant’s knowing and intelligent waiver of his right to appellate counsel, and of his desire to proceed pro se, or in the case of ineffectiveness, an appointment of new counsel.
Ellis,
This court recently clarified that an appellant has a constitutional right to dismiss appellate counsel, before a brief has been filed on his behalf, and prosecute the appeal pro se. Commonwealth v. Grazier,
Dissenting Opinion
dissenting.
Since I believe that the Superior Court properly reviewed the merits of Appellee’s Persinger claim under the circumstances of this case, I respectfully dissent.
Here, as noted by the Majority, Appellee entered a plea of nolo contendere to each of the charges in the three separate criminal informations filed against him. However, the trial court failed to inform Appellee during its colloquy that the sentences for each of the charges could be imposed consecutively, as this Court now explicitly requires under Commonwealth v. Persinger,
The Majority, however, finds that the Superior Court improperly reached the merits of the Persinger claim. Instead, the Majority concludes that this issue has been waived for purposes of the PCRA because Mr. Tabano did not raise a sufficiently serial ineffectiveness claim. In other words, Mr. Tabano failed to argue that Appellee’s prior PCRA counsel had also been ineffective for failing to raise the issue of trial and appellate counsels’ ineffectiveness with regard to their failure to raise a Persinger claim. Therefore, the Majority concludes that the Superior Court improperly reviewed the issue on its merits. I disagree.
Here, Appellee was appointed two PCRA counsel, who, from all indications, did not adequately represent the interests of their client.
While Appellee still has the ability to file a second PCRA petition, and raise a serial ineffectiveness claim regarding the Persinger issue sufficient to overcome waiver, such a scenario essentially strips Appellee of his opportunity to have this claim addressed on its merits. It is well-settled that a second or subsequent post-conviction petition for relief will not be entertained “unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.” Commonwealth v. Lawson,
In my view, the PCRA is designed to protect persons from such situations as the one presented by this appeal. Here, Appellee was represented by two court-appointed
. For purposes of this dissent, “Persinger claim” refers to the claim that Appellee’s nolo contendere plea was not knowingly, voluntarily, and intelligently entered since the trial court did not advise Appellee that his sentences could be imposed consecutively on multiple convictions.
. The amended petition did not raise a claim relating to the validity of Appellee's plea on the grounds that the trial court did not advise Appellee during its colloquy that consecutive sentences could be imposed upon multiple convictions.
. As the Superior Court noted, Appellee’s first PCRA counsel took no action on Appellee’s behalf for two and one-half years after filing a notice of intention to file an amended petition and Attorney Bereos filed a deficient brief on appeal to the Superior Court.
. In all likelihood, Petitioner would also not be able to demonstrate that his second petition has been timely filed under 42 Pa.C.S. § 9545(b)(1). See 42 Pa.C.S. § 9545(b)(1) (petition must be filed within one year of date judgment becomes final unless petition alleges one of enumerated exceptions to timeliness requirements).