J-S24038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    RUSSELL L. ELLIS                           :
                                               :
                      Appellant                :   No. 1642 WDA 2016

               Appeal from the PCRA Order September 28, 2016
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002327-2013


BEFORE:      PANELLA, STABILE, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                             FILED MAY 23, 2017

        Russel L. Ellis (“Appellant”) appeals, pro se, from the order entered in

the Court of Common Pleas of Erie County dismissing his second petition

under the Post Conviction Relief Act (“PCRA”) as untimely. Appellant argues

that his sentence is illegal under Alleyne v. United States, 133 S.Ct. 2151

(2013), raises multiple claims of ineffective assistance of prior counsel, and

assails the PCRA court’s order granting PCRA counsel’s petition to withdraw

from his first PCRA petition. We remand while retaining panel jurisdiction.

        The PCRA court aptly summarized the background of the case as

follows:

        On March 7, 2014, Defendant [hereinafter “Appellant”] appeared
        before Judge Ernest J. DiSantis, Jr., with his counsel, Michael A.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     DeJohn, Esq., and entered a guilty plea to Count 1:
     Manufacture, Deliver or Possession with Intent to Manufacture or
     Deliver, in violation of 35 P.S. § 780-113(a)(3).[] On April 28th,
     2014, Judge DiSantis sentenced Appellant as follows:

           Count 1: sixty (60) to one hundred twenty (120)
           months’    incarceration with    the   Pennsylvania
           Department of Corrections (RRRI Eligible: fifty (50)
           months) consecutive to the sentence[] imposed at
           docket no. CR 2569 of 2009; a thirty thousand dollar
           and 00/100 ($30,000.00) fine; and court costs.[]

     [Having filed no direct appeal,] Appellant filed his first [PCRA
     petition] on April 30, 2014. By order dated June 4, 2014,
     William J. Hathaway, Esq., was appointed as Appellant’s PCRA
     counsel and was directed to supplement or amend Appellant’s
     first PCRA within thirty (30) days. Attorney Hathaway filed a
     Motion for Transcripts and Extension of Time on June 12th, 2014,
     which was granted by Judge DiSantis on June 16th, 2014.
     Attorney Hathaway filed a “No Merit” letter and a Petition for
     Leave to Withdraw as Counsel on September 2nd, 2014. On
     September 3, 2014, Judge DiSantis filed a Notice of Intent to
     Dismiss Appellant’s first PCRA Petition and granted Attorney
     Hathaway’s Petition for Leave to Withdraw as Counsel. Appellant
     filed a “Petition for Habeas Corpus Relief Pursuant to Article I,
     Section 14 of the Pennsylvania Constitution and for Post-
     conviction Relief Pursuant to the [PCRA] and Consolidated
     Memorandum of Law and Motion for Extension of Time” on
     September 18th, 2014.       On September 30th, 2014, Judge
     DiSantis denied both Appellant’s first PCRA Petition and his
     Petition for Habeas Corpus/PCRA. Appellant filed a [pro se]
     Notice of Appeal to the Pennsylvania Superior Court on October
     24, 2014. On March 5, 2015, the Pennsylvania Superior Court
     dismissed Appellant’s [pro se] appeal due to Appellant’s failure
     to file a brief.

     Appellant filed the instant PCRA petition, his second, on April 15,
     2016. [In Appellant’s pro se petition, he explicitly indicated that
     “[t]he PCRA [petition] being filed now is seperate [sic] from the
     previous PCRA as this petition is only dealing with the matter of
     an illeagal [sic] sentence, which said cliam [sic] has never been
     raised and/or adjudicated.”]




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       By order dated April 25, 2016, [the PCRA] court appointed
       William J. Hathaway, Esq., as Appellant’s PCRA counsel and
       directed Attorney Hathaway to supplement or amend
       Defendant’s pro se PCRA Petition within thirty (30) days.
       Attorney Hathaway filed an Amended PCRA Petition on May 16th,
       2016, [raising, inter alia, an Alleyne challenge against
       Appellant’s sentence]. By Order dated May 17, 2016, [the PCRA
       court] directed the Commonwealth to respond to Appellant’s
       Amended PCRA Petition within thirty (30) days.                The
       Commonweatlh, by and through Assistant District Attorney Paul
       S. Sellers, filed a Response to Appellant’s PCRA Petition on June
       16, 2016. On September 6, 2016, [the PCRA court]filed its
       Notice of Intent to Dismiss Appellant’s second PCRA Petition and
       directed Appellant to file his Objections on or before September
       26, 2016. On September 28, 2016, as no Objections were filed
       by Appellant or his counsel, William J. Hathawway, Esq., [the
       PCRA court] dismissed Appellant’s second PCRA Petition.[1]

       Appellant filed a pro se Notice of Appeal to the Pennsylvania
       Superior Court on October 5, 2016. [The PCRA court] filed its
       1925(b) Order on October 27, 2016. To date, Appellant has not
       filed a Concise Statement of Errors Complained of on Appeal.
____________________________________________


1
  The certified record includes a written response, ostensibly prepared by
Attorney Hathaway, to the PCRA court’s Rule 907 Notice. A close inspection
of the response, entitled “Objection Letter to the Proposed Intent to Dismiss
PCRA Petition For an Illegal Sentence Pursuant to 18 Pa.C.S.A.
7508(a)(3)(i)(b),” however, reveals it is part of a larger filing signed only by
Appellant and bearing a time stamp of October 26, 2016, which was nearly
two months after the PCRA court filed its Notice of Intent to Dismiss and one
month after the PCRA court entered its order dismissing Appellant’s PCRA
Petition.

Appellant also filed with the PCRA court a motion for allowance of appeal
nunc pro tunc in which he explained that he authored the “Objection Letter”
prior to the Rule 907 date of dismissal but never filed it because he assumed
that his counsel was going to respond on his behalf. In the motion,
Appellant declared counsel ineffective for failing to file a response to the
PCRA court’s Rule 907 Notice. We discern in the record no PCRA court
response to Appellant’s objections or declarations, and note that the court
subsequently responded to Appellant’s notice of appeal with several filings
addressed to, inter alia, Attorney Hathaway. See infra.



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PCRA Court Order, filed 9/28/2016 at 1-3.

      Prior to addressing the issues Appellant presents in his pro se brief, we

sua sponte consider whether counsel withdrew from representation in

accordance with procedural requirements for withdrawal as outlined in

Commonwealth         v.   Turner,    544    A.2d    927   (Pa.    1988),   and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc)

(Turner/Finley). Because the instant petition is Appellant’s second under

the PCRA, he normally would not be entitled to appointment of counsel on

appeal. See Commonwealth v. Jackson, 965 A.2d 280 (Pa.Super. 2009)

(noting automatic right to counsel in collateral appeals applies only to first

PCRA petitions).    The Pennsylvania Rules of Criminal Procedure, however,

provide “[w]hen counsel is appointed[,] . . . the appointment of counsel shall

be effective throughout the post-conviction collateral proceedings, including

any appeal from disposition of the petition from post-conviction collateral

relief.” Pa.R.Crim.P. 904(F)(2) (emphasis added). See Jackson, 965 A.2d

at   283.      Accordingly,   appointed   counsel   seeking   withdrawal   from

representation in a second PCRA proceeding, including an appeal, must

comply with Turner/Finley procedures governing withdrawal.           Jackson,

supra. See Commonwealth v. Glacken, 32 A.3d 750, 753 (recognizing

that where PCRA court appoints counsel in second petition, appointed

counsel must either serve as advocate or proceed in accordance with Turner

and Finley).


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      Here, the PCRA court made a discretionary appointment of counsel to

represent Appellant in his second petition under the PCRA. Since the time of

appointment,      the    PCRA   court      entered   no   order   permitting   Attorney

Hathaway to withdraw. There is no indication that counsel petitioned to

withdraw, nor is there a record that Appellant requested to proceed pro se.

Even assuming that Appellant made such a request at some point, there is

no on-the record review conducted by the PCRA court to ascertain that

Appellant was making a knowing, intelligent, and voluntary waiver of his

right to counsel.       See Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa.

1998).      Indeed, the PCRA court appears to have considered Attorney

Hathaway as Appellant’s counsel of record on the present appeal, as the

court cc’d Attorney Hathaway in both its October 28, 2016, Rule 1925(b)

Concise Statement Order and its subsequent Rule 1925(a) Opinion. Yet, we

have only a pro se brief from Appellant.

      In Glacken, this Court was similarly presented with “only a pro se

brief in a case where counsel never was permitted to withdraw and [the

appellant] never waived his right to counsel.”            Glacken, 32 A.3d at 753.

Relying on clear authority prohibiting hybrid representation, we quashed the

appeal    for    lack   of   either   an    advocate’s    or   Turner/Finley      brief,

acknowledging that counsel’s failure in this regard worked to the detriment

of his client.

      Unlike in Glacken, however, we lack a clear, overt expression from

the PCRA court that Attorney Hathaway remains counsel of record, as the

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record before us arguably allows the inference that the PCRA court may have

permitted Appellant to proceed pro se.     Therefore, we defer quashing the

present appeal, as was done in Glacken, until the PCRA court substantiates,

on remand, that Appellant did not knowingly, intelligently, and voluntarily

waive his right to counsel for purposes of his PCRA appeal, and that it did

not dismiss counsel in contravention of Turner/Finley.

      If, instead, the PCRA court substantiates that it granted Appellant’s

request to proceed pro se, and did so in conformance with the dictates of

Grazier, then our concerns with hybrid representation are obviated, and we

will address the issues Appellant has raised in the present appeal.

      Finally, in the event the PCRA court acknowledges that it relieved

counsel of his duty to represent Appellant despite the dictates of either

Grazier or Turner/Finley, respectively, then the PCRA court is to appoint

new counsel, who may file a Rule 1925(b) statement nunc pro tunc to

preserve Appellant’s issues on appeal.     In such instance, the PCRA court

may file a new Rule 1925(a) opinion or rely on its existing one, and our

prothonotary shall set a new briefing schedule for the parties.        See

Jackson, 965 A.2d at 284.      The PCRA court shall have 60 days from the

date of this memorandum decision to enter an appropriate order clarifying

the uncertainties regarding Appellant’s representation.

      Case remanded for PCRA court action consistent with this decision.

Panel jurisdiction retained.




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