J-S68019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TERRY COLLINS                              :
                                               :
                       Appellant               :   No. 234 WDA 2018

                 Appeal from the PCRA Order January 24, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0016616-2014


BEFORE:      SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY DUBOW, J.:                                FILED MARCH 28, 2019

       Appellant, Terry Collins, appeals from the Order dismissing without a

hearing his first Petition filed pursuant to the Post-Conviction Relief Act, 42

Pa.C.S. § 9541-46 (“PCRA”). After careful review, we remand for the PCRA

court to hold an evidentiary hearing on the claims raised before the PCRA

court. In addition, we direct the PCRA court to appoint PCRA counsel who is

not currently, and was not at the time of the trial and/or appeal, associated

with the Allegheny County Office of Conflict Counsel, unless the attorney who

works or worked for the Office of Conflict Counsel can demonstrate that

Appellant has waived the conflict.1
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1 We note that this Court initially filed a Memorandum on February 19, 2019,
to which the Commonwealth filed a Motion for Clarification on February 26,
2019. We granted the Motion, and file this Memorandum clarifying our
direction for the appointment of counsel and noting that Jacob McCrea was


____________________________________
* Former Justice specially assigned to the Superior Court.
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       The relevant facts and procedural history are as follows. After a trial,

at which the Hon. Donna Jo McDaniel presided and Appellant was represented

by Brandon Herring, Esq., of the Allegheny County Office of Conflict Counsel,2

a jury found Appellant guilty of one count each of Aggravated Assault and

Endangering the Welfare of a Child (“EWOC”) in connection with physical

abuse of his five-year-old autistic daughter for whom he was the primary

caregiver.3 Prior to sentencing, Judge McDaniel granted Appellant’s Motion

for the Appointment of an Expert to conduct a psychological evaluation and

prepare a report to assist in the sentencing decision.

       The court thereafter sentenced Appellant to a term of 8 to 16 years’

incarceration, opining that Appellant had shown little remorse or concern for

the child while informing the court about the steps he has taken and the

education he has received regarding parenting since being incarcerated. See

Sentencing Transcript, 2/4/16, at 19-20.


____________________________________________


associated with the Office of Conflict Counsel at the time trial and appellate
counsel represented Appellant, i.e., in 2016.

2 The court appointed the Office of Conflict Counsel to represent Appellant
after the victim’s mother obtained the services of the Public Defender. The
victim’s mother ultimately pled guilty.

3The Commonwealth proved that the victim had ligature marks on her wrists
and ankles due to the use of restraints. The victim also had signs of scalding
on her backside, but the jury acquitted Appellant of the crime charged in
connection with that injury.




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       However, after consideration of Appellant’s Post-Sentence Motion

challenging the legality of the sentence because it exceeded the statutory

limits, Judge McDaniel granted the motion and resentenced Appellant on the

Aggravated Assault conviction to a term of 5 to 10 years’ incarceration.4 See

Sentencing Transcript, 3/3/16, at 4. She did not provide an explanation on

the record at the resentencing hearing for imposing a sentence beyond the

aggravated range of the sentencing guidelines.

       With Judge McDaniel’s permission, Appellant filed an amended Post-

Sentence Motion challenging the discretionary aspects of the new sentence by

averring that the court failed to apply properly the mitigating factors

pertaining to Appellant’s mental illnesses as set forth in the expert’s report,

and imposed an excessive sentence outside the guidelines.5 The court denied

the Motion.



____________________________________________


4 Judge McDaniel imposed no further penalty on the EWOC conviction. The
sentencing worksheet indicates defendant has a prior record score
(hereinafter "PRS") of zero and an OGS of 7. The applicable statute provides
for 5 to 10 years’ incarceration. See 18 Pa.C.S. § 1103(2). The sentencing
worksheet indicates that the sentencing guidelines call for a mitigated range
of restorative sanctions, a standard sentencing range of 6-14 months, and an
aggravated range of 20 months. The court sentenced Appellant to a minimum
term of 60 months’ incarceration that, although falling within the statutory
limits, is well above the aggravated range of the sentencing guidelines.

5In this Post-Sentence Motion, Attorney Herring noted that the expert report
opined that Appellant has numerous mental illnesses, including schizophrenia,
other mental health problems, and an IQ of 86. See Amended Post-Sentence
Motion, filed 4/25/16, at 5-6.


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       Attorney Herring filed a timely direct appeal on Appellant’s behalf.   On

December 12, 2016, Lisa C. Leake, Esq., also of the Office of Conflict Counsel,

filed a Praecipe with this Court to withdraw Appellant’s direct appeal. In a

letter to Appellant dated the same day, Ms. Leake explained that because the

claims he communicated to her during a telephone conversation all involved

issues related to trial counsel’s stewardship, Appellant agreed that he should

withdraw the appeal and proceed under the PCRA. The letter acknowledged

the issues that she would have raised in the direct appeal, including the

challenge to the discretionary aspects of sentence. See Exh. 1 annexed to

Attorney Scott Coffey’s Motion to Withdraw and Turner/Finley6 Letter, dated

11/30/17.

       On October 20, 2017, Appellant filed a timely pro se PCRA Petition

averring that both trial and appellate counsel provided ineffective assistance.

Relevant to this appeal, Appellant raised the following error in his Petition:

“Appeal counsel rendered ineffective counsel where she filed a direct appeal

and failed to follow through with it violating defendant’s due process.” See

PCRA Petition, filed 10/20/17, at 4.

       Judge McDaniel, sitting as the PCRA Court, appointed Scott Coffey, Esq.,

as PCRA counsel. Mr. Coffey filed a Motion to Withdraw and a Turner/Finley

letter. Annexed to his Turner/Finley letter was a copy of the letter from



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6 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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Attorney Leake addressed to Appellant regarding Appellant’s decision to

withdraw the direct appeal.

      On December 12, 2017, the PCRA court filed an Order (1) granting Mr.

Coffey’s Motion to Withdraw, and (2) notifying Appellant of its intent to dismiss

Appellant’s Petition without a hearing.

      Appellant filed a pro se response to the court’s Order, expanding on the

issue Mr. Coffey noted in his Turner/Finley letter, stating that Appellant “was

ill-advised that sentencing issues could also be raised on P.C.R.A. Petition

(Petitioner’s understanding when he affirmed of discontinuing (ending) the

Appeal.).” Reply in Opposition to Notice of Intention to Dismiss, filed 1/5/18,

at 2. Appellant asserted that he “misinterpreted Mrs. Lisa Leake when she

relayed Petitioner's claim(s) can only be heard on a P.C.R.A. petition, so

confused Petitioner under advisement withdrew his Appeal.” Id. Appellant

also requested the appointment of new counsel.

      On January 24, 2018, the court dismissed the PCRA Petition without a

hearing.   Appellant timely appealed pro se and filed a Pa.R.A.P. 1925(a)

Statement as ordered by the PCRA court.

      The Superior Court then remanded to the PCRA court, directing that

court to determine whether Appellant was entitled to court-appointed counsel

in his PCRA appeal.

      In response, on March 27, 2018, Judge McDaniel appointed Jacob

McCrea, Esq., and directed counsel to file an amended Rule 1925(b)




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Statement. Mr. McCrea complied,7 and the PCRA court filed a Rule 1925(a)

Opinion.

       Appellant raises the following issue on appeal:

       Whether the trial court erred in dismissing [Appellant’s] PCRA
       Petition without a hearing to determine whether his decision to
       withdraw his direct appeal was knowing, intelligent and voluntary?

Appellant’s Brief at 4.8

       We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).

       The PCRA Court has the discretion to dismiss a Petition without a hearing

if the court is satisfied, after thoroughly reviewing the Petition, the Answer

and any other relevant information of record, “that [1] there are no genuine

issues concerning any material fact, [2] the defendant is not entitled to post-

conviction collateral relief, and [3] no legitimate purpose would be served by

further proceedings.”       Commonwealth v. Roney, 79 A.3d 595, 604 (Pa.



____________________________________________


7 In the amended Rule 1925(b) Statement, Appellant averred that the trial
court erred in dismissing his PCRA Petition without a hearing because his
assertion—that appellate counsel’s improper advice regarding discontinuing
his appeal resulted in an unknowing waiver of his appeal rights—raised a
genuine issue of material fact. See Pa.R.A.P. 1925(b) Statement, dated
5/29/18, at 3 (unpaginated).

8 Appellant did not seek the reinstatement of his appeal rights nunc pro tunc
in his PCRA Petition.


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2013) (citation omitted); Pa.R.Crim.P. 907(1). Thus, “[t]o obtain reversal of

a PCRA court's decision to dismiss a petition without a hearing, an appellant

must show that he raised a genuine issue of fact which, if resolved in his favor,

would have entitled him to relief, or that the court otherwise abused its

discretion in denying a hearing.” Roney, supra at 604-05. (citation omitted).

       Here, Appellant avers that the genuine issue of material fact he raised

before the PCRA court is that appellate counsel gave him improper advice that

resulted in him unknowingly waiving his right to seek review of the

discretionary aspects of his sentence. See Appellant’s Brief at 20.9 In order

to succeed on an ineffectiveness claim, a petitioner must prove: “(1) [ ] the

underlying claim is of arguable merit; (2) [ ] counsel had no reasonable

strategic basis for his or her action or inaction; and (3) [ ] but for the errors

and omissions of counsel, there is a reasonable probability that the outcome

of the proceedings would have been different.” Commonwealth v. Hull, 982

A.2d 1020, 1022–23 (Pa. Super. 2009). “The failure to satisfy any prong of

this test will cause the entire claim to fail.” Id. at 1023.   “Finally, counsel is

presumed to be effective, and petitioner has the burden of proving otherwise.”

Id.



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9 A claim challenging the discretionary aspects of sentence is not cognizable
under the PCRA. See 42 Pa.C.S. § 9543(a)(2) (eligibility for relief under the
PCRA); Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa.Super. 2007)
(“Requests for relief with respect to the discretionary aspects of sentence are
not cognizable in PCRA proceedings.”).

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      Here, the PCRA court concluded that the underlying issue was without

merit after quoting the following letter from appellate counsel to Appellant:

      Dear Mr. Collins,

      As we discussed during our telephone call on Friday, I have
      discontinued your appeal at your wishes so that you may proceed
      to the post-conviction relief stage. As I explained, the direct
      appeal stage would allow you to challenge legal errors that
      occurred during the trial. This means that we would have argued
      that the trial judge misapplied the law when she made decisions
      in your case. The issues that we would have raised are: 1.
      Sufficiency of the evidence (we would have argued that the
      Commonwealth was not able to introduce proof of each element
      of each charge), 2. The weight of the evidence (we would have
      argued that the jury improperly gave some evidence either too
      much or not enough consideration), 3. The Court’s failure to grant
      a mistrial after the assistant district attorney accused you of lying,
      and 4. That the discretionary aspects of sentence (we would have
      argued that the judge sentenced you too harshly). [sic] During
      our phone conversation, we discussed the arguments that we
      would make and the likelihood of success.

      You informed me that the issues you wish to raise relate to the
      trial strategy. That is, you want to challenge the things that your
      trial attorney either did or didn’t do, that you did not agree with.
      Accordingly, I informed you that the proper way to raise these
      claims was after the direct appeal in a petition for post-conviction
      relief. You informed me that you wanted to raise these issues
      now, rather than wait until after the direct appeal. You also
      agreed that the chances of success on direct appeal are low. I
      advised your [sic] that withdrawing your appeal and proceeding
      directly to the post-conviction stage would be in the best way to
      accomplish your goals. You informed me that you understood all
      of this. In accordance with your directions, I did file a petition to
      withdraw your appeal. The Pennsylvania Superior Court will
      therefore stop your appeal and withdraw my appearance.

      In order to move forward with your petition for post-conviction
      relief, you will need to get a form from your counselor if you have
      not done that already. Fill that out and mail it to Judge McDaniel
      as soon as possible.


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      I wish you the best of luck in the future!

                                            Sincerely,

                                            s/Lisa C. Leake, Esquire.

PCRA Ct. Op., 7/17/18, at 4-5 (quoting Exh. 1, Turner/Finley no-Merit Letter

filed 11/30/17 by Scott Coffey, Esq.).

      Based on this letter, the PCRA court concluded that “there was no

genuine issue of material fact as to whether the discontinuance was knowing,

voluntary and intelligent and as such, no hearing on the issue was required.”

PCRA Ct. Op. at 5. The PCRA court emphasized that the “record reflects” that

Appellant “was counseled regarding a low chance of success on his direct

appeal issues and wanted to proceed directly to a challenge of trial counsel’s

ineffectiveness.” Id. The court also noted that the “record [ ] reflects that

the decision to discontinue the appeal was the [Appelant’s] and was done with

his knowledge and consent [as] reflected by the over-10-month absence of

any activity from the time of the discontinuance until the pro se PCRA Petition

was filed.”   Id.   The court concluded that Appellant’s delay of 10 months

“reflects an absence of a genuine issue of material fact regarding [the]

voluntariness [of the discontinuance of the appeal.].” Id.

      “[I]t is well established that a finding of waiver of appeal rights is not to

be made lightly and every reasonable presumption against the waiver will be

indulged.” Commonwealth v. Mika, 419 A.2d 1172, 1173 (Pa. Super. 1980)

(citation omitted).   Appellant avers here that he unknowingly waived his


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challenge to the discretionary aspects of sentence.          A challenge to the

discretionary   aspects   of    sentence    is   not   appealable   as   of   right.

Commonwealth v. Darden, 531 A.2d 1144, 1146 (Pa. Super. 1987).

Accordingly, Appellant waived his right to request allowance of appeal based

on the discretionary aspects of his sentence because challenges to the

discretionary aspects of sentence are not cognizable under the PCRA.

Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa. Super. 2007).

      Our review indicates that the PCRA court failed to address the actual

issue Appellant raised in his Petition and detailed in his Response to Attorney

Coffey’s Turner/Finley letter and the court’s Rule 907 Notice. The letter from

appellate counsel to Appellant regarding the discontinuance of the appeal does

not indicate that counsel informed Appellant that by discontinuing the appeal,

he forever lost his right to seek allowance of appeal to raise his discretionary

aspect of sentence claim.      The PCRA court’s opinion fails to acknowledge this

omission.

      Moreover, in light of the trial court’s summary denial of Appellant’s Post-

Sentence Motion, in which Appellant challenged the sentence as significantly

outside of the guidelines and excessive in light of meaningful mitigating

evidence, his averment that counsel failed to inform him of the claim’s waiver

raised a genuine issue of material fact that warrants a hearing.

      Accordingly, we vacate the Order dismissing the Petition and remand for

an evidentiary hearing on the issues Appellant raised in his pro se Petition and


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his response to counsel’s Turner/Finley letter and to the court’s notice of its

intent to dismiss without a hearing.

      In addition, we are concerned by the PCRA court’s appointment on the

prior remand by this Court of an attorney to represent Appellant in the appeal

of his ineffectiveness claim who, at the time of the trial and the appeal, worked

with the same organization with which the allegedly ineffective trial and

appellate counsel were associated. See Letter dated December 12, 2016 from

Lisa C. Leake, Esq., to Appellant (where the masthead indicates that Brandon

Herring, Esq. (trial counsel), Lisa C. Leake, Esq. (appellate counsel), and Jacob

McCrea, Esq. (PCRA Counsel) were all Associate Counsel at the Allegheny

County Office of Conflict Counsel). Thus, in an abundance of caution, we direct

the court to appoint new counsel that is not and was not associated with the

Allegheny Office of Conflicts Counsel to represent Appellant in these further

proceedings, unless the attorney who works or worked for the Office of Conflict

Counsel can demonstrate that Appellant has waived the conflict.

      Order vacated. Case remanded for further proceedings.          Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2019

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