J-S31022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    TAN CAO NGUYEN

                             Appellant                No. 1512 WDA 2018


            Appeal from the PCRA Order Entered September 18, 2018
               In the Court of Common Pleas of Venango County
               Criminal Division at No: CP-61-CR-0000067-2017


BEFORE: OLSON, STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 12, 2019

        Appellant, Tan Cao Nguyen, appeals from the September 18, 2018 order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-46, after Appellant and his counsel failed to appear at a

scheduled hearing. We vacate and remand.

        On May 5, 2017, Appellant pled guilty but mentally ill to a charge of

attempted robbery of a motor vehicle1 and related offenses. On June 1, 2017,

the trial court imposed an aggregate three to twenty-two and one-half years

of incarceration.     Appellant did not file a direct appeal, and therefore his

judgment of sentence was final as of July 1, 2017.         On June 29, 2018,




____________________________________________


1    18 Pa.C.S.A. § 3921(a).
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Appellant filed this timely, counseled, first PCRA petition, alleging ineffective

assistance of prior counsel.

      On July 17, 2018, the trial court entered an order scheduling a hearing

on the petition for September 14, 2018. The trial court faxed that order to

PCRA counsel’s fax number, which appeared on counsel’s letterhead and

underneath counsel’s signature on the PCRA petition.          Rule 114 of the

Pennsylvania Rules of Criminal Procedure permits the trial court to serve

orders by facsimile where a party requests that method of service by “filing a

written request for this method in the case or including a facsimile number or

an electronic address on a prior legal paper filed in the case[.]” Pa.R.Crim.P.

114(B)(3)(c)(i). Given the presence of counsel’s facsimile number underneath

his signature on the PCRA petition, we reject Appellant’s argument that service

of the scheduling order was improper.

      Nonetheless, we conclude that dismissal of Appellant’s petition is not an

appropriate remedy in this case. In Commonwealth v. Carson, 510 A.2d

1223 (Pa. 1986), our Supreme Court addressed a trial court’s authority to

issue sanctions where a party misses a hearing. In Carson, the trial court

dismissed criminal charges where a prosecutor was late for trial. “While a trial

court must have authority to regulate attendance upon its schedule and

concomitant authority to sanction a breach, the sanction must be visited upon

the offender and not upon the interests of public justice.” Id. at 1235; see

also, Commonwealth v. Shaffer, 712 A.2d 749 (Pa. 1998) (plurality).


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“Criminal cases involve issues of public justice; issues that transcend the

immediate parties.        In criminal cases, sanctions may be imposed upon

individuals, including counsel for either side; sanctions that vindicate the

authority of the court to maintain its schedule and enforce its orders.” Id.

       Appellant’s brief states that counsel did not anticipate receiving orders

in this matter by fax, that counsel’s fax machine receives many spam faxes,

and that the trial court’s order was sorted into the fax machine’s spam folder.

Appellant’s Brief at 8. Assuming the information about counsel’s fax machine

is correct, common sense would dictate omitting any reference to that number

in any legal filing.2 But this is clearly counsel’s error, not Appellant’s.

       In dismissing Appellant’s petition, the PCRA court faulted Appellant for

failing to procure transcripts or present any evidence that would have

supported his claims of ineffective assistance of counsel. PCRA Court Opinion,

12/21/18, at 4 (pagination ours). “In addition to being absent, [Appellant]

did not present anything that would indicate he would have been prepared to

prove his claims.      For example, [Appellant] argues he received ineffective

assistance of counsel, however, [Appellant] did not order any transcripts of

any prior hearings to support his claim.” Id. Thus, the court determined it



____________________________________________


2 This information was presented to the PCRA court in a petition to vacate the
order dismissing Appellant’s petition. Petition to Vacate Dismissal of PCRA,
10/2/18. The PCRA court does not appear to question the credibility or factual
accuracy of counsel’s explanation for his failure to appear at the scheduled
hearing.

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had discretion to dismiss. We conclude that these failings are attributable to

counsel’s failure to monitor a fax machine whose number he provided to the

PCRA court on legal papers filed in this matter. Given counsel’s unawareness

of the scheduled hearing, the lack of preparedness to present a case is

unsurprising. As the Carson Court wrote, “the sanction must be visited upon

the offender and not upon the interests of public justice.” Carson, 510 A.2d

at 1235.   Here, a PCRA petition deemed worthy of a hearing has been

dismissed because counsel mishandled the court’s scheduling order.        We

conclude the PCRA court abused its discretion in dismissing the case rather

than issuing a different sanction tailored to address counsel’s mistake. We

therefore vacate the PCRA court’s order and remand for further proceedings.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2019




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