J-S50022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 3856 EDA 2016
    RYAN UNTERWERGER

                 Appeal from the PCRA Order December 9, 2016
              In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0007012-2016


BEFORE:      PANELLA, J., RANSOM, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                            FILED FEBRUARY 06, 2018

        The Commonwealth of Pennsylvania appeals from the order entered in

the Montgomery County Court of Common Pleas, granting Appellee, Ryan

Unterwerger’s second petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We reverse.

        On March 22, 2016, Appellee pleaded guilty to a single count of

possession with intent to deliver. The trial court sentenced Appellee to a term

of three to twenty-three months’ imprisonment followed by a four-year

probationary sentence. Appellee did not seek direct review; however, after

discovering the possible adverse immigration consequences of his plea deal,

he presented a motion to withdraw his guilty plea, nunc pro tunc. Through his

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   Retired Senior Judge assigned to the Superior Court.
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motion, Appellee alleged guilty plea counsel, David McKenzie, Esquire,

provided ineffective assistance by failing to advise him of the potential adverse

immigration consequences.

       The PCRA court held an evidentiary hearing on Appellee’s petition.1 Prior

to the admission of evidence, Appellee’s counsel orally moved to amend

Appellee’s petition to include a claim that guilty plea counsel was ineffective

for representing Appellee despite a conflict of interest. The Commonwealth

initially opposed the addition of this claim, and objected to Appellee’s attempts

to develop this claim, but ultimately withdrew its objection.

       Appellee testified he was unaware Attorney McKenzie was representing

Paul McNamara, the prospective buyer in the underlying drug matter, at the

time he entered his guilty plea. Attorney McKenzie confirmed he represented

both McNamara and Appellee during Appellee’s guilty plea process, but

believed his representation of Appellee was unaffected by his concurrent

representation of McNamara.

       On September 20, 2016, the PCRA court denied Appellee’s petition,

finding the ineffectiveness claim based upon guilty plea counsel’s failure to

inform of immigration consequences meritless. Further, the PCRA court denied


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1 Prior to the hearing, the PCRA court determined that because Appellee’s
motion centered upon his allegations of ineffective assistance of counsel, his
motion was actually a PCRA petition. See N.T., PCRA Hearing, 9/2/16, at 6-7.
Neither party objected to the PCRA court deeming the motion a PCRA petition
and the hearing proceeded as a PCRA evidentiary hearing. See id., at 7.



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relief based upon any alleged conflict of interest, noting that PCRA counsel,

Wayne Sachs, Esquire, failed to establish prejudice, and thus failed to meet

his burden of proof.

       Appellee retained new counsel and filed, on October 12, 2016, a second

PCRA petition,2 alleging the ineffectiveness of Attorney McKenzie for his dual

representation of McNamara and Appellee, as well Attorney Sachs’ alleged

ineffectiveness for failing to properly litigate this claim. The PCRA court held

a second evidentiary hearing, during which new PCRA counsel submitted

docket sheets reflecting the concurrent representation of McNamara and

Appellee. Following the hearing, the PCRA court found both Attorney McKenzie

and Attorney Sachs provided layered ineffectiveness, granted Appellee’s

second PCRA petition, and vacated Appellee’s guilty plea. This timely appeal

follows.

       On appeal, the Commonwealth contends that the PCRA court erred by

granting Appellee’s second PCRA petition based on guilty plea counsel’s

concurrent representation of McNamara. See Commonwealth’s Brief, at 4,

Specifically, the Commonwealth argues Appellee presented insufficient

evidence to establish prejudice resulting from guilty plea counsel’s actions.

See id., at 4, 9-17. Further, as PCRA counsel raised this issue in Appellee’s

first PCRA evidentiary hearing, Appellee’s claim should not succeed under the
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2 New counsel initially filed a motion for reconsideration of the PCRA court’s
decision. However, after a conference with all parties and the recommendation
of the PCRA court, new counsel withdrew the motion and filed a second PCRA
petition.

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dictates of “layered ineffectiveness” review. See id., at 15-17. Additionally,

the Commonwealth alleges that the PCRA court incorrectly determined that

ineffectiveness itself meets the “miscarriage of justice” standard necessary for

second or subsequent PCRA petitions. See id., at 4, 17-22.

      We review a PCRA court’s ruling as follows:

      Under the applicable standard of review, we must determine
      whether the ruling of the PCRA court is supported by the record
      and is free of legal error. The PCRA court’s credibility
      determinations, when supported by the record, are binding on this
      Court. However, this Court applies a de novo standard of review
      to the PCRA court’s legal conclusions.

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (internal citations

omitted).

      Prior to reaching the merits of the Commonwealth’s contentions, we

must address both the PCRA court and Commonwealth’s contention they are

addressing a “layered ineffectiveness” claim. Our courts typically recognized

a claim as one implicating the “layered ineffectiveness” framework where

PCRA counsel alleged appellate counsel’s ineffectiveness for failing to claim

trial counsel’s ineffectiveness on direct appeal. See Commonwealth v.

McGill, 832 A.2d 1014, 1021-1023 (Pa. 2003). However, the need for a

“layered ineffectiveness” analysis was effectively alleviated following our

Supreme Court’s holding in Commonwealth v. Grant, 813 A.2d 726 (Pa.

2002), which generally deferred ineffectiveness claims until post-conviction

proceedings. After Grant, the only cases, which necessitated a “layered

ineffectiveness” analysis, were cases in which a direct appeal was filed before


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Grant, or where a court on direct appeal has reviewed claims of

ineffectiveness on direct appeal. See, e.g., Thomas M. Place, The Post

Conviction Relief Act: Practice and Procedure (2016 ed.) § 4.02[1]. As

Appellee did not file a direct appeal prior to the Grant decision (or any direct

appeal for that matter), any discussion of the application of the “layered

ineffectiveness” framework is misguided.

      Moving to the Commonwealth’s issues on appeal, we address the

contention that the PCRA court erred in applying the “miscarriage of justice”

standard, first. As discussed, this appeal lies from the grant of Appellee’s

second PCRA petition. A second or subsequent post-conviction petition “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, 549 A.2d 107, 112 (Pa. 1988). “A petitioner

makes a prima facie showing if he demonstrates that either the proceedings

which resulted in his conviction were so unfair that a miscarriage of justice

occurred which no civilized society could tolerate, or that he was innocent of

the crimes for which he was charged.” Commonwealth v. Carpenter, 725

A.2d 154, 160 (Pa. 1999) (internal quotation marks omitted and citation

omitted).

      Here, the PCRA court concluded guilty plea counsel’s ineffectiveness

alone constituted a miscarriage of justice sufficient to grant PCRA relief on

Appellee’s second PCRA petition. However, our review of Appellee’s second

PCRA petition reveals that Appellee completely failed to acknowledge a

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different standard of review for a second or subsequent PCRA petition, let

alone make a prima facie showing that the proceedings which resulted in his

conviction were so unfair that a miscarriage of justice occurred. Without this

showing, the PCRA court should not have even reviewed Appellee’s second

petition, and thus its grant of PCRA relief was an error as a matter of law.

       Further, even assuming that guilty plea counsel’s ineffectiveness

amounted to a miscarriage of justice, Appellee still would not have been

entitled to PCRA relief. To be entitled to PCRA relief, a petitioner must establish

“[t]hat the allegation of error has not been previously litigated or waived.” 42

Pa.C.S.A. § 9543(a)(3). An issue is “previously litigated” when “it has been

raised and decided in a proceeding collaterally attacking the conviction or

sentence.” 42 Pa.C.S.A. § 9544(a)(3).

       Here, the PCRA court granted relief due to guilty plea counsel’s

concurrent representation of McNamara and Appellee. While the PCRA court

concluded PCRA counsel failed to raise this conflict of interest/ineffectiveness

claim,3 the record flatly belies this conclusion.

       PCRA counsel moved orally to amend Appellee’s first PCRA petition to

include the conflict of interest claim immediately following the PCRA court’s

determination that the hearing would proceed as an evidentiary hearing under


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3 In its Rule 1925(a) statement, the PCRA court denied it allowed the oral
amendment during the first evidentiary hearing, stating that PCRA counsel
provided “insufficient support for the oral motion.” PCRA Court’s Rule 1925(a)
Opinion, 1/25/17, at 3.

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the PCRA. While the Commonwealth initially opposed this oral amendment, it

later withdrew its objection as evidenced by the following exchange:

      [THE COMMONWEALTH]: Well, Your Honor, previously, before this
      hearing began, defense wanted to amend to include the conflict of
      interest. I objected based on the timing of that matter. I am willing
      to withdraw that objection, meaning that we would just agree that
      that can be amended, that the claim is now orally added to the
      PCRA and that we are prepared to argue it.

      PCRA COURT: All right. Very good. [Appellee’s counsel] you have
      the burden, so you go first.

N.T., PCRA Hearing, 9/2/16, at 73-74. The PCRA court’s response implicitly

indicated that PCRA counsel successfully orally amended the petition to

include this claim.

      Further, our review of the record reveals that PCRA counsel set forth

sufficient evidence to support this claim. A comparison of the transcripts from

Appellee’s evidentiary hearings reveals the only evidence introduced in

support of the second petition, which was not introduced in support of the

first, were the docket sheets reflecting guilty plea counsel’s representation of

McNamara during the relevant times. As guilty plea counsel testified, during

the first hearing, to the fact that he represented both Appellee and McNamara

during the relevant time periods, the docket sheets amount to nothing more

than cumulative evidence. Thus, because PCRA counsel raised the relevant

claim of guilty plea counsel’s ineffectiveness, we conclude the PCRA court




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erred as a matter of law by granting Appellee a new trial based on a previously

litigated claim.4

       Order reversed.

       Judge Platt joins the memorandum.

       Judge Ransom concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/18




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4 Given our resolution, we need not reach the Commonwealth’s alternative
arguments on appeal.

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