J-S79045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    RODNEY CLARKE                              :
                                               :
                      Appellant                :      No. 2738 EDA 2016

                  Appeal from the PCRA Order May 19, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0004100-2012,
                            CP-51-CR-0004111-2012


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED DECEMBER 29, 2017

        Appellant, Rodney Clarke, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied and dismissed his

first petition brought pursuant to the Post Conviction Relief Act (“PCRA”). 1

For the following reasons, we vacate and remand for further proceedings.

        The PCRA court opinion sets forth the relevant facts and procedural

history of this case as follows:

          When “K.S” was between the ages of 9 and 14 years,
          Appellant, who was married to K.S.’ grandmother at the
          time, fondled her and penetrated her vagina with his
          penis. When “E.S.” was between the ages of 11 and 15
          years, Appellant, who was E.S.’ stepfather at the time, had
          oral sex with E.S. and penetrated E.S.’ anus with his penis.
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
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       On October 16, 2012, this [c]ourt accepted a negotiated
       nolo contendere plea of Appellant and adjudged him guilty
       of the following offenses: Rape by Forcible Compulsion (18
       Pa.C.S.A. § 3121(a)(1)) and Unlawful Contact with a Minor
       (18 Pa.C.S.A. § 6318(a)(1)) on case CP-51-CR-0004100-
       2012; Involuntary Deviate Sexual Intercourse by Forcible
       Compulsion (“IDSI”) (18 Pa.C.S.A. § 3123(a)(1)) and
       Unlawful Contact with a Minor (18 Pa.C.S.A. § 6318(a)(1)
       on case CP-51-CR-0004111-2012.            All charges were
       graded as felonies of the first degree. In accordance with
       the plea agreement, the [c]ourt sentenced Appellant to
       10−20 years on the charge of Rape, 10−20 years on the
       charge of Involuntary Deviate Sexual Intercourse, and
       5−10 years for each charge of Unlawful Contact with a
       Minor.     The [c]ourt ordered that the Rape and IDSI
       sentences were to run concurrent with one another, and
       that the charges of Unlawful Contact with a Minor were to
       run concurrent to one another but consecutive to the Rape
       and IDSI charges.          Thus, the [c]ourt imposed an
       aggregate sentence of 15−30 years of incarceration.
       Additionally, at the time of sentencing, Appellant was
       already serving a sentence of incarceration for two counts
       of IDSI from previous cases with a sentencing date of
       March 14, 2008.         The [c]ourt ordered that the new
       sentence was to run concurrent with these previous
       sentences. Appellant was advised by his attorney that he
       had ten days to file a post-sentence motion for relief and,
       that if he failed to do, he would no longer have the right to
       file an appeal. No post-sentence motion was filed.

       Appellant filed a petition for relief pursuant to the [PCRA]
       on July 31, 2013, as well as multiple supplements and
       addendums. He made the following claims:

                1. That Appellant’s sentence for the crime of
                unlawful contact by a minor should not run
                consecutive to his other charges because the
                charges arise from the same course of
                conduct. (Appellant’s Addendum to PCRA, filed
                9/3/14, at 5).

                2. That his sentence should run concurrent to
                the sentence from his 2006 case because the

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              incidents from which the charges on this case
              stem predate the 2006 case. (Addendum to
              PCRA, filed 9/2/14, at 5).

              3. That      the   [c]ourt   cannot   impose
              consecutive prison terms without making a
              finding that Appellant caused separate harms
              to the victims by the acts that produced the
              two convictions.    (Addendum to PCRA filed
              9/25/13, at 4-5; Addendum to PCRA filed
              9/2/14, at 5).

              4. That the [c]ourt’s sentence was “harsh
              and excessive” given that “Defendant is a 56
              year old black male who suffers from
              glaucoma…diabetes,      C.O.P.D.   and  liver
              disease…and that the sentence imposed…is
              equivalent to a life sentence.” (Addendum to
              PCRA, filed 9/25/13, at 7).

              5. That the negotiated sentence deviated
              from the guidelines and the court offered no
              explanation as to the reason for the deviation.
              (Addendum to PCRA, filed 9/25/13, at 3;
              Addendum to PCRA, filed 9/2/14, at 4).

              6. That the court erred in determining that
              this case was a second strike case and
              Appellant’s conviction “should be treated as his
              first strike pursuant to…Commonwealth v.
              Shiffler[, 583 Pa. 478, 879 A.2d 185 (2005)]
              because he pled nolo contendere to all charges
              and the sentences for the crimes ran
              concurrently and [he] had no opportunity to
              reform.” (Addendum to PCRA filed 9/2/14, at
              6-7).

              7. That the [c]ourt erred in imposing an
              unlawful and unconstitutional sentence in light
              of [Alleyne v. United States, ___ U.S. ___,
              133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)].
              (Supplemental Addendum, filed 12/11/14, at
              1-3).


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                     8. That Appellant’s trial counsel incorrectly
                     told him that his time credit on the new cases
                     would begin on March 14, 2008, the
                     sentencing date on previous cases, and that
                     this faulty advice induced his plea. (PCRA,
                     filed 7/31/13, at 3).

                     9. That his written guilty plea agreement
                     inaccurately described his maximum possible
                     period of incarceration. (Id. at 6).

                     10. That the [c]ourt erred in previously
                     granting a Bad Acts motion and that facts of
                     the prior case were wrongly used to enhance
                     his sentence. (Amended PCRA petition, filed
                     4/22/14, at 1-2).

          On March 31, 2015, a Finley[2] letter was filed by
          [counsel] addressing issues 3, 4, 8 and 10. The [c]ourt
          dismissed the petition on May 19, 2015. Appellant filed a
          second PCRA petition pro se on July 8, 2015, claiming that
          he did not receive notice of the [c]ourt’s dismissal and
          requesting that his PCRA appeal rights be reinstated nunc
          pro tunc. On July 7, 2016, the [c]ourt granted Appellant’s
          request, reinstated his PCRA appellate rights, and informed
          Appellant that he was entitled to an attorney on appeal.
          Appellant appealed the PCRA dismissal to the Superior
          Court on August 1, 2016. However, the [c]ourt neglected
          to appoint counsel. A Statement of [Errors] Complained of
          on Appeal [per Pa.R.A.P. 1925(b)] was filed pro se on
          October 7, 2016.

(PCRA Opinion, filed January 6, 2017, at 1-3) (internal citations and footnote

omitted).

       Appellant raises the following issue on appeal:

          WHETHER APPELLANT’S CASE SHOULD BE REMANDED FOR
____________________________________________


2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).



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         AN EVIDENTIARY HEARING.

(Appellant’s Brief at 2).

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251, 1252 (Pa.Super. 2008), appeal denied, 598 Pa. 779,

959 A.2d 319 (2008). This Court 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, 515 (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, the

petitioner is not entitled to PCRA relief, and no purpose would be served by

any further proceedings.    Commonwealth v. Hardcastle, 549 Pa. 450,

454, 701 A.2d 541, 542 (1997); Commonwealth v. Smith, 121 A.3d 1049

(Pa.Super. 2015). For example, the PCRA court has the discretion to deny a

hearing on the petitioner’s claims if they are “patently frivolous” and have

“no support either in the record or other evidence.”     Commonwealth v.

Grove, 170 A.3d 1127, 1149 (Pa.Super. 2017) (quoting Commonwealth v.

Wah, 42 A.3d 335, 338 (Pa.Super. 2012)).       “A reviewing court on appeal

must examine each of the issues raised in the PCRA petition in light of the

record certified before it” to see if the PCRA court “erred in concluding that


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there were no genuine issues of material fact and in denying relief without

conducting an evidentiary hearing.” Smith, supra at 1052. The purpose of

an evidentiary hearing in this context is to resolve actual conflicts, not to

conduct a fishing expedition for any possible evidence that might support

some speculative claim. Grove, supra (citing Commonwealth v. Roney,

622 Pa. 1, 79 A.3d 595, 605 (2013), cert. denied, ___ U.S. ___, 135 S.Ct.

56, 190 L.Ed.2d 56 (2014)).     On the other hand, if the petitioner raises

genuine issues of material fact, which the PCRA court cannot decide solely

on the record, then the court should hold a hearing to resolve the conflicts.

Commonwealth v. Garry, ___ A.3d ___, 2017 PA Super 323 (filed October

13, 2017).

     In response to Appellant’s appeal, the PCRA court reasoned:

        While it appears that PCRA counsel addressed in his Finley
        letter only four of Appellant’s ten underlying PCRA
        allegations of error, Appellant’s claim for relief on appeal
        seems to suggest that he is arguing only those six claims
        that counsel did not address, rather than all ten. However,
        because the [c]ourt neglected to appoint appellate counsel
        as it has promised, the case should be remanded for
        appointment of counsel, who can more adequately address
        the [c]ourt’s denial of PCRA relief. Moreover, while it
        appears that Appellant may have waived many issues by
        not raising them on direct appeal, see 42 Pa.C.S. §
        9544(b) (a PCRA claim is waived if “the petitioner could
        have raised it but failed to do so before trial, at trial,
        during unitary review, on appeal or in a prior state post-
        conviction proceeding”), his plea attorney incorrectly
        advised him that he would not have the right to appeal the
        judgment of sentence if he did not first file a post-sentence
        motion within ten days of sentencing. The [c]ourt thus
        believes that, in order to obviate the need for an additional
        PCRA petition down the road, appellate counsel should be

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         permitted on remand to address all of Appellant’s claims
         regarding the sentencing proceeding under the umbrella of
         the instant petition.

         This case should also be remanded for an evidentiary
         hearing regarding the issue (#8 above) of what his
         attorney told him about the date his sentence would
         commence. In addition to his own averment, Appellant
         attached an affidavit to his PCRA petition from his sister,
         Helen Clarke, stating that Appellant’s trial counsel also told
         her that Appellant’s new sentence would “start on March
         14, 2008…” Sworn Affidavit by Helen Clarke, Received by
         the Clerk of Court on 8/2/13. Any such advice from his
         attorney would constitute ineffective assistance. Thus, his
         claim creates an issue of material fact entitling him to an
         evidentiary hearing. The [c]ourt’s previous decision to the
         contrary, like [counsel’s] assessment of the issue in his
         Finley letter, was wrong.

         Appellant also claims that the [c]ourt erred by not
         reinstating his right to file a post-sentence motion, about
         which Appellant was correctly advised. However, he did
         not raise this issue in either his first, counseled, PCRA
         petition or his second, pro se, PCRA petition. Therefore,
         this claim has been waived. See 42 Pa.C.S. § 9544(b).

         In light of the above, the [c]ourt recommends that its
         order dismissing Appellant’s PCRA petition be vacated and
         that new counsel be appointed for 1) an evidentiary
         hearing on the issue of retroactive sentencing advice, 2)
         review and litigation of those PCRA claims made by
         Appellant which were not addressed by [prior PCRA
         counsel), and 3) any subsequent appellate proceedings.

(PCRA Court Opinion at 4-5). Under the unique circumstances of this case,

we agree with the PCRA court that a remand is necessary for the

appointment of new counsel, a possible amended PCRA petition, further

pursuit of the claim(s) related to the ineffective assistance of plea counsel,

and a hearing on those claims.     Contrary to the Commonwealth’s position


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that Appellant was technically not “entitled” to PCRA appellate counsel, the

court’s letter to Appellant was both ambiguous and misleading on the topic.

Undeniably, the PCRA court is in the best position to decide (a) if it promised

to appoint appellate counsel for Appellant and (b) whether it should hold an

evidentiary hearing on Appellant’s claims.      See Pa.R.Crim.P. 122(A)(3)

(allowing court discretion to appoint counsel and stating: “Counsel shall be

appointed: …(3) in all cases, by the court, on its own motion, when the

interests of justice require it”); McGarry, supra. In combination with other

issues involved in this case, such as plea counsel’s alleged advice on

sentencing, we conclude the best resolution is to vacate and remand for

further   proceedings,   as   the   PCRA    court   has   requested.      See

Commonwealth v. Kenney, 557 Pa. 195, 732 A.2d 1161 (1999) (holding

reviewing court is error-correcting court and cannot evaluate claims which

PCRA court did not consider; Superior Court has no original jurisdiction in

PCRA proceedings; if record is insufficient to adjudicate allegations, case

should be remanded for further inquiry).        Accordingly, we vacate and

remand for further proceedings.

      Order vacated; case remanded for further proceedings. Jurisdiction is

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/17




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