COMMONWEALTH of Pennsylvania, Appellee v. Quawi SMITH, Appellant.
1049
Superior Court of Pennsylvania.
Submitted June 29, 2015. Filed Aug. 19, 2015.
1049
Judgment affirmed.
Judge LAZARUS joins the Opinion.
Judge OLSON concurs in the result.
Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.
OPINION BY GANTMAN, P.J.:
Appellant, Quawi Smith, appeals from the order enterеd in the Philadelphia Court of Common Pleas, which denied his first petition brought pursuant to the Post Conviction Relief Act (“PCRA“).1 We affirm.
The relevant facts and procedural history are as follows:
On March 30, 2006, following a bench trial, [Appellant] was found guilty of first-degree murder and possession of an instrument of crime. On May 19, 2006, this court imposed a sentence of life imprisonment. On March 27, 2009, the Superior Court affirmed [Appellant‘s] convictions and sentence. [Appellant] did not file an appeal with the state Supreme Court. On December 3, 2009, [Appellant] filed a timely pro-se [PCRA] petition, and later hired private attorney Brian McMonagle, Esq., who filed an amended PCRA petition on October 9, 2012. Subsequently, on January 16, 2014, this court issued a Notice of Dismissal pursuant tо [Pa.R.Crim.P. 907] to both [Appellant] and Mr. McMonagle. On June 12, 2014, this court, following consideration and review, formally dismissed [Appellant‘s] PCRA petition without a hearing. On July 7, 2014, [Appellant] filed a pro-se Notice of Appeal, and later that same week, Craig M. Cooley, Esq., was appointed to represent [Appellant] for the appeal of his PCRA dismissal. Thereafter, Mr. Cooley filed a [Rule] 1925(b) Statement, which is the basis for this opinion.2
A brief summation of the facts in this case is as follows: On October 21, 2002, Jermaine Daniels, the victim, confronted [Appellant] in front of a Chinese food market at 59th and Belmar Streets in Philadelphia because [Appellant] had attempted to rob [thе victim] a few days earlier. [Appellant] and the victim were engaged in a verbal confrontation when [Appellant] withdrew a firearm and shot the victim in the forehead. [Appellant] fired two additional shots as the victim was falling to the ground—one penetrating his heart and lung. As [Appellant] fled, he fired his gun back towards the
(PCRA Court Opinion, filed January 15, 2015, at 1-2) (internal citations and footnotes omitted).
Appellant raises two issues for our review:
[APPELLANT] HAS A STATE AND/OR FEDERAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL DURING HIS INITIAL-REVIEW POST-CONVICTION PROCEEDINGS....
THE PCRA COURT VIOLATED [APPELLANT‘S] DUE PROCESS RIGHTS BY FINDING THAT [APPELLANT] WAIVED HIS PCRA INEFFECTIVENESS CLAIMS BECAUSE HE FAILED TO PRESENT THEM TO THE PCRA COURT TWENTY DAYS AFTER THE PCRA COURT ISSUED ITS 907 NOTICE....
(Appellant‘s Brief at i-ii).3
Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court‘s determination and whether its decision is free of legal error. Commonwealth v. Conway, 14 A.3d 101 (Pa.Super.2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Cоurt grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super.2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). “[A] petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuine issue concerning any material fact and the petitioner is not entitled to post-convictiоn collateral relief, and no purpose would be served by any further proceedings.” Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa.Super.2007), appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008);
Appellant asserts he had a constitutional right to effective trial and appellate counsel. Appellant avers he needed an effective initial-review PCRA attorney to develop fully and meaningfully present his trial and appellate counsel ineffectiveness claims, which is a federal due process right. Appellant maintains he had a state-created liberty interest in obtaining relief when he filed his pro-se PCRA petition based on ineffective assistance of counsel, and the Commonwealth had to afford him reasonable procedures to vindicate his liberty interest in obtaining relief based on trial counsel‘s ineffectiveness. Appellant asserts he had a federal due process right to an effective PCRA attorney to uphold this state-created liberty interest.
Appellant also contends his rule-based right to effective initial review PCRA counsel qualifies as a state-created liberty
As a prefatory matter, we observe that due process requires the post-conviction process to be fundamentally fair, even though procedural due process protections for PCRA proceedings are less stringent than they are for a trial or direct appeal. Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264 (2007). “Thus, petitioners must be given the opportunity for the presentation of claims at a meaningful time and in a meaningful manner.” Id. at 398, 930 A.2d at 1273.
Pennsylvania law makes clear: While a PCRA petitioner does not have a Sixth Amendment right to assistance of counsel during collateral review, this Commonwealth, by way of procedural rule, provides for the appointment of counsel during a [petitioner‘s] first petition for post сonviction relief. Pursuant to our procedural rule, not only does a PCRA petitioner have the “right” to counsel, but also he has the “right” to effective assistance of counsel. The guidance and representation of an attorney during collateral review should assure that meritorious legal issues are recognized and addressed, and that meritless claims are foregone. Commonwealth v. Haag, 570 Pa. 289, 307-08, 809 A.2d 271, 282-83 (2002), cert. denied, 539 U.S. 918, 123 S.Ct. 2277, 156 L.Ed.2d 136 (2003) (internal citations and most quotations marks omitted). The rule-based right to counsel and to effective assistance of counsel extends throughout the post-conviction proceedings, including any appeal from the disposition of the PCRA petition. Commonwealth v. Quail, 729 A.2d 571, 573 (Pa.Super.1999);
Rule 907 controls the disposition of a PCRA petition without a hearing and states in relevant part:
Rule 907. Disposition Without Hearing
Except as provided in Rule 909 for death penalty cases,
(1) the judge shаll promptly review the petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant‘s claim(s). If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral reliеf, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss
the petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice. The judge thereafter shall order thе petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue. *
*
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(4) When the petition is dismissed without a hearing, the judge promptly shall issue an order to that effect and shall advise the defendant by certified mail, return receipt requested, of the right to appeal from the final order disрosing of the petition and of the time limits within which the appeal must be filed. The order shall be filed and served as provided in Rule 114.
“[A]bsent recognition of a cоnstitutional right to effective collateral review counsel, claims of PCRA counsel ineffectiveness cannot be raised for the first time after a notice of appeal has been taken from the underlying PCRA matter.” Commonwealth v. Ford, 44 A.3d 1190, 1201 (Pa.Super.2012). A petitioner‘s failure to raise an ineffectiveness of counsel claim after receiving Rule 907 notice results in waiver of the claim. Commonwealth v. Pitts, 603 Pa. 1, 9 n. 4, 981 A.2d 875, 880 n. 4 (2009). See also Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.Super.2014) (waiving Appellant‘s claim of ineffectiveness of derivative PCRA counsel for failure to assert it in response to Rule 907 notice); Ousley, 21 A.3d at 1245 (stating Pitts prohibits this Court‘s review of petitioner‘s ineffectiveness of PCRA counsel claim, where issue was raised for first time in PCRA appeal). With respect to the petitioner‘s duties, PCRA clаims are more civil than criminal in nature, which places the burden of moving the case forward on the party in the plaintiff‘s position, who in this context is the PCRA petitioner. Commonwealth v. Renchenski, 616 Pa. 608, 620, 52 A.3d 251, 258 (2012). The petitioner bears the burden of pleading and proving claims on their merits, and demonstrating timeliness of a petition. See
In the instant case, Appellant filed a timely pro-se PCRA petition and hired a private attorney, who filed an amended PCRA petition on October 9, 2012. Subsequently, on January 16, 2014, the PCRA court issued Rule 907 notice to both Appellant and his privately-retained counsel. The Rule 907 notice indicated the court intended to dismiss the petition for lack of merit. The court also informed Aрpellant and his counsel that they had twenty days to respond to the notice. No response was filed.
Almost five months later, on June 12, 2014, the PCRA court formally dismissed
Initially, we conclude the PCRA court‘s Rule 907 notice was adequate where the court advised the parties of its reasons for dismissal and informing them of the twenty-day time limit to file a response to the notice. Here, the PCRA court‘s Rule 907 notice indicated the reason for dismissal was Appellant‘s issues lacked merit and alеrted Appellant to the twenty-day response period. The court sent the Rule 907 notice to Appellant, Appellant‘s counsel, and the District Attorney‘s Office. The rule does not impose on the court any duty to explain to Appellant how to proceed or respond to the notice.
Appellant had an аffirmative duty to preserve his claims. If Appellant wanted to assert claims of ineffective assistance of PCRA counsel, he should have consulted counsel and/or the court to learn the correct procedure. Instead, Appellant did nothing in the almost five months between the court‘s Rule 907 notice and dismissal of the pеtition. Thus, Appellant‘s substantive issues concerning PCRA counsel‘s assistance are waived, because Appellant failed to respond to the PCRA court‘s Rule 907 notice at any time before the court dismissed his petition. See Rykard, supra; Ousley, supra;
Moreover, throughout the PCRA proceedings Appellant, as petitioner, bore the burden to plead and prove his claims. See
Notwithstanding Appellant‘s rule-based right to effective assistance of PCRA coun-
Based upon the foregoing, we hold that in the context of Rule 907 notice, Appellant as PCRA petitioner had the duty to raise any claims of ineffective assistance of PCRA counsel in a response to the notice. Once the PCRA court finally adjudicated Appellant‘s petition, any claims not properly preserved in a response to the Rule 907 notice were waived and could not be raised for the first time in Appellant‘s Rule 1925(b) statement or in a second PCRA petition filed while the first PCRA petition was still pending on appeal. Accordingly, we affirm the order denying Appellant‘s PCRA petition.
Order affirmed.
Judge PANELLA joins this opinion.
Judge OLSON concurs in the result.