J-S40024-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                     Appellee              :
                                           :
             v.                            :
                                           :
RAVANNA SPENCER,                           :
                                           :
                     Appellant             : No. 1912 WDA 2014

                   Appeal from the PCRA Order October 10, 2014,
                        Court of Common Pleas, Erie County,
                  Criminal Division at No. CP-25-CR-0000433-2013

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                             FILED JULY 27, 2015

        Ravanna Spencer (“Spencer”) appeals from the order of court

dismissing his petition filed pursuant to the Post Conviction Relief Act, 42

Pa.C.S.A. §§ 9541-9546 (“PCRA”). For the following reasons, we vacate and

remand for further proceedings.

        While incarcerated on an unrelated conviction, Spencer threw urine on

a corrections officer. He was subsequently charged with multiple offenses in

relation to that incident. On July 3, 2013, Spencer pled guilty to disorderly

conduct and harassment.1 The matter proceeded immediately to sentencing

and the trial court sentenced Spencer to six to twelve months of

incarceration.2      At the conclusion of the plea and sentencing hearing,


1
    18 Pa.C.S.A. §§ 5503(a)(4), 2709(a)(1).
2
 This is an aggravated-range sentence. The statutory maximum is twelve
months of incarceration. See Guideline Sentencing Form, 7/5/13.

*Retired Senior Judge assigned to the Superior Court.
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Spencer’s counsel stated that Spencer waived his post-trial and appellate

rights “so that he [could] be shipped back to his home prison as soon as

possible.” N.T., 7/3/13, at 15. There was no further mention of Spencer’s

purported waiver of appeal rights, in either oral or written form.

      On June 9, 2014, Spencer filed a timely pro se PCRA petition. On June

16, 2014, the PCRA court appointed counsel (“Counsel”).         On August 22,

2014, Counsel filed a motion seeking to withdraw from representation

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). In response

to Counsel’s Turner/Finley letter, Spencer sent the trial court a letter

contesting Counsel’s motion to withdraw, in which he argued against

Counsel’s conclusion that the issues he raised in his pro se petition were

without merit.     Spencer mailed this document to the trial court on

September 8, 2014. On the same date, the PCRA court granted Counsel’s

petition to withdraw and issued its notice of intent to dismiss Spencer’s PCRA

petition without a hearing pursuant to Pa.R.Crim.P. 907 (“Rule 907 notice”).3

Spencer then filed a response to the Rule 907 notice of intent to dismiss, in

which he reiterated not only his defense of the issues he raised in his PCRA

petition, but also raised new allegations of trial counsel ineffectiveness and



3
 In connection with granting Counsel’s request to withdraw, the PCRA court
authored a detailed opinion addressing the issues raised by Counsel in his
Turner/Finley letter and agreeing with Counsel that they were without
merit. PCRA Court Opinion, 9/8/14.


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claims of Counsel’s ineffectiveness.    On October 10, 2014, the PCRA court

denied Spencer’s PCRA petition without addressing any of the claims

Spencer raised for the first time in his response to the Rule 907 notice. This

timely appeal follows.

        Spencer raises seven issues for our review.4 As we address them, we

are mindful that “there is no absolute right to an evidentiary hearing on a

PCRA petition, and if the PCRA court can determine from the record that no

genuine issues of material fact exist, then a hearing is not necessary.”

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). “A

reviewing court must examine the issues raised in the PCRA petition in light

of the record in order to determine whether the PCRA court erred in

concluding that there were no genuine issues of material fact and in denying

relief without an evidentiary hearing.” Id.

        Spencer raises two claims in which he alleges that the trial court

lacked jurisdiction over him.     Spencer’s Brief at 5.   As a general matter,

when a defendant has pled guilty, the only claims he may bring under the

PCRA relate to the validity of his plea or the legality of his sentence.

Commonwealth v. Rounsley, 717 A.2d 537, 538 (Pa. Super. 1998)

(“[A]fter a defendant has entered a plea of guilty, the only cognizable issues

in a post-conviction proceeding are the validity of the plea of guilty and the

legality of the sentence.”).    As these issues challenge the authority of the


4
    We have reordered these issues for purposes of our discussion.


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trial court to impose Spencer’s sentence, they implicate the legality of his

sentence;   accordingly,   Spencer     can   raise   them   in   a   PCRA   action.

Commonwealth v. Archer, 722 A.2d 203, 209 (Pa. Super. 1998) (en

banc); Rounsley, 717 A.2d at 538. Nonetheless, they afford him no relief.

      Spencer first argues that because the district attorney did not sign the

criminal complaint, it was void and therefore the case “should have been

dismissed for lack of jurisdiction.”    Spencer’s Brief at 27.       Spencer cites

Commonwealth v. Belcher, 392 A.2d 730 (Pa. Super. 1978), in support of

his position. This reliance is misplaced. Belcher provides that the criminal

information, not the criminal complaint, must be signed by a district attorney

for it to be valid.   Id. at 731.5   Even if Spencer meant to challenge the

validity of the criminal information, our review of the record reveals that the

signature of a member of the Erie County District Attorney’s office is clearly

affixed to Spencer’s criminal information.      Thus, there is no merit to this

claim.

      Spencer also argues that the trial court lacked jurisdiction over him

because Pennsylvania’s constitution “lacks a savings clause permitting it to

enact laws, statutes and [a] penal code.” Spencer’s Brief at 27. This is an



5
  We further note that this Court overruled Belcher in Commonwealth v.
Veneri, 452 A.2d 784, 788 (Pa. Super. 1982) (“[W]e believe that Belcher is
incorrect law and must be overruled. We instead hold that the signature
requirement of Pa.R.Crim.P. 225(b) is directory only and that its absence
renders an information merely voidable and curable by amendment if
properly raised in a pre-trial motion to quash.”).


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argument that pro se appellants frequently raise, which we have consistently

and roundly rejected.         This Court recently detailed the faults in this

argument     and   explained    precisely   why   it   is   a   frivolous   claim   in

Commonwealth v. Stultz, 114 A.3d 865, 873-75 (Pa. Super. 2015).

      We now turn to Spencer’s two claims that the PCRA court erred by

denying his petition without considering his allegations of Counsel’s

ineffectiveness. Spencer’s Brief at 10.6 As noted above, the PCRA court did

not address any of the new claims that Spencer raised in his response to the

Rule 907 notice. It reasoned that “as [Spencer] has had the benefit of filing

a pro se petition and a review by [Counsel], he may not add new claims now

apparently because he is unhappy with this Court’s determination that the

original claims lack merit.” PCRA Court Order, 10/10/14, at n.1. The PCRA

court is partially correct.

             Where the petitioner does not seek leave to amend
             his petition after counsel has filed a Turner/Finley
             no-merit letter, the PCRA court is under no obligation
             to address new issues. In contrast, where the new
             issue     is   one    concerning     PCRA    counsel's
             representation, a petitioner can preserve the issue
             by including that claim in his Rule 907 response or
             raising the issue while the PCRA court retains
             jurisdiction.




6
  Specifically, Spencer alleges that Counsel was ineffective for failing to raise
trial counsel’s ineffectiveness for (1) not filing an appeal when Spencer
requested that he do so and (2) not moving to withdraw Spencer’s guilty
plea. Spencer’s Brief at 11.


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Commonwealth v. Rigg, 84 A.3d 1080, 1085 (Pa. 2014) (internal citations

omitted).     Accordingly,    Spencer   properly raised claims of Counsel’s

ineffectiveness in his response to the Rule 907 notice.        The PCRA court

should   have    considered    these    before   denying   Spencer’s    petition.

Accordingly, we remand this case so that the PCRA court can review and

decide the issues Spencer raised regarding Counsel’s ineffectiveness,

including the appointment of counsel and holding an evidentiary hearing if it

should determine that either issue merits a hearing.7 See Commonwealth

v. Johnson, 64 A.3d 622, 623-24          (Pa. 2014) (holding that PCRA court

improperly found issues raised by pro se petitioner waived and remanding

case for consideration of issues and appointment of counsel and evidentiary

hearing if necessary).



7
  One of these issues alleges that trial counsel did not file a direct appeal
when Spencer requested that he do so, and that Counsel was ineffective for
failing to raise this claim on his behalf. Spencer’s Brief at 11. In support of
this claim, Spencer points to a letter he sent to trial counsel, which he
attached to his pro se PCRA petition, in which he told trial counsel that he
wanted to withdraw his plea and file an appeal. See id.; PCRA Petition,
6/9/14, at Attachment 2. Our law provides that failing to file an appeal
when requested to do so by a defendant amounts to ineffectiveness per se.
See Commonwealth v. Halley, 870 A.2d 795, 801 (Pa. 2005);
Commonwealth v. Lane, 81 A.3d 974, 981 (Pa. Super. 2013). Yet, as
noted above, Spencer purportedly waived his direct appeal rights at the time
of sentencing. See N.T., 7/3/13, at 15. For such a waiver to be valid,
however, it must be made knowingly, voluntarily and intelligently.
Commonwealth v. Doty, 997 A.2d 1184, 1187 (Pa. Super. 2010). The
only evidence of Spencer’s supposed waiver is a statement made by trial
counsel, as detailed above. Accordingly, it appears that there are genuine
issues of fact as to whether trial counsel was ineffective for failing to file an
appeal or whether there was a valid waiver of appellate rights.


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      Spencer’s remaining issues challenge the PCRA court’s dismissal of his

claims that trial counsel was ineffective for failing to “challenge a

presumptive chemical test,” “investigate [his] mental state” with regard to a

possible   “mental   health/insanity   defense,”   “obtain   exculpatory   video

evidence” 8 and promising that he would receive a sentence of only three to

six months. Spencer’s Brief at 4, 24. Spencer alleges that these instances of

ineffectiveness induced him to plead guilty.

      We begin with Spencer’s claim that trial counsel induced his plea by

promising that he would receive a three to six month sentence. Spencer’s

Brief at 15. The PCRA Court rejected this claim on the basis that at the plea

hearing, Spencer acknowledged that he could receive a sentence up to the

statutory maximum, both orally and in writing. PCRA Court Opinion, 9/8/14,

at 6. The record supports this conclusion, as it reveals that the trial court

informed Spencer that he could be sentenced up to one year and ninety days

of incarceration on the charges, and he acknowledged this. N.T., 7/3/13, at

11; Statement of Understanding Rights Prior to Guilty/No Contest Plea,



8
   When presenting these three issues in his statement of questions raised
on appeal in his appellate brief, Spencer did not phrase his challenges to
these instances of alleged ineffectiveness in terms of inducing his plea. See
Spencer’s Brief at 4. However, he makes this argument in his discussion of
these issues. We could find these claims waived for failure to include them
in his statement of questions involved. See Pa.R.A.P. 2116(a). We decline
to do so in this instance. As we explain infra, Spencer preserved these
issues by raising them obliquely in his initial PCRA petition and then directly
in his response to the Rule 907 notice. We decline to let his failure to
precisely frame the issues in this one instance foreclose our review thereof.


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7/3/13, ¶ 4.    Further, the record reveals Spencer’s acknowledgement that

the trial court was not bound by any sentencing recommendation and that

he was not made any promises as to the sentence he would receive.

Statement of Understanding Rights Prior to Guilty/No Contest Plea, 7/3/13,

¶¶ 5, 6. Accordingly, we find no error in the PCRA court’s determination that

this issue is without merit.

      The PCRA court did not address the remaining three claims of

ineffectiveness in its opinion, as it was of the opinion that they did not

extend so far as to implicate the validity of Spencer’s plea.      PCRA Court

Opinion, 9/8/14, at 7. However, a close reading of Spencer’s initial, pro se

PCRA petition and his response to the Rule 907 notice reveals that Spencer

did allege that trial counsel’s failure in these regards induced his decision to

enter a guilty plea. Accordingly, Spencer is entitled to have the PCRA court

consider them. Therefore, on remand, the PCRA court shall consider these

claims and hold a hearing on them if so required.

      Order vacated. Case remanded for further proceedings.         Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/27/2015




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