J-S12040-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEROY MILTON CLARK                         :
                                               :
                       Appellant               :   No. 1657 EDA 2019

               Appeal from the PCRA Order Entered May 7, 2019
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0004738-2016


BEFORE:      SHOGAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                FILED APRIL 28, 2020

        Appellant, Leroy Milton Clark, pro se, appeals from the order entered

May 7, 2019, that dismissed his first petition filed under the Post Conviction

Relief Act (“PCRA”)1 without a hearing. After careful review, we vacate the

PCRA court’s order and remand this case to the PCRA court for appointment

of new PCRA counsel and for further proceedings consistent with this decision.

        The facts underlying this appeal are as follows:

        On December 23, 2015, [Appellant] left his home in Warrington,
        P[ennsylvania], armed with a .380 caliber handgun and a .38
        caliber handgun and drove his silver Dodge Caravan to 73-year-
        old Richard Duncan’s home in Willow Grove, Montgomery County
        . . . [H]e parked a block away from Duncan’s home, walked to the
        home and knocked on the door; when Duncan exited his home,
        [Appellant] shot Duncan twice, mortally wounding him. . . .
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*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541–9546.
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        Abington Police stopped [Appellant] a few blocks away from . . .
        Duncan’s home, at which time he shot himself twice.

PCRA Court Opinion, dated August 20, 2019, at 1-2 (footnote and citations to

the record omitted). One of Appellant’s self-inflicted gunshot wounds was to

his head, resulting in brain damage. Exhibit D-2; N.T., 4/27/2017, at 104,

107-08, 112, 116.

        On April 27, 2017, Appellant pleaded guilty to murder, generally, and to

firearms not to be carried without a license and possession of weapon.2 The

next day, following a degree-of-guilt bench trial, Appellant was convicted of

murder of the first degree and murder of the third degree.3 Appellant was

sentenced on July 20, 2017, to life imprisonment without parole for murder of

the first degree4 followed by an additional two to five years of incarceration

for firearms not to be carried without a license; he did not file a direct appeal.




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2   18 Pa.C.S. §§ 2502, 6106(a)(1), and 907(b), respectively.
3   Id. § 2502(a), (c), respectively.
4 The PCRA court concluded that the sentences for murder of the first degree
and murder of the third degree merged and therefore only sentenced
Appellant on the count of murder of the first degree. PCRA Court Opinion,
dated August 20, 2019, at 7 n.6. The PCRA court further noted that, to the
extent that the guilty verdicts for murder of the first degree and murder of
the third degree could be considered inconsistent, as the sentences for these
convictions merged, Appellant suffered no prejudice and thus could not
succeed on a claim of ineffective assistance of counsel, which requires a
finding of prejudice. Id.; see also Commonwealth v. Medina, 209 A.3d
992, 1000 (Pa. Super. 2019).



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       On August 9, 2018, Appellant filed his first, pro se, PCRA petition raising

multiple    claims    of   ineffective   assistance   of   trial   counsel,   including

“abandonment of counsel[.]” PCRA Petition, 8/9/2018, at 2-3, 7.

       On August 28, 2018, the PCRA court appointed counsel to represent

Appellant and ordered PCRA counsel to file an amended petition or a “no merit”

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

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

60 of days of the date of the order. On October 30, 2018, the PCRA court

granted PCRA counsel an extension of 60 days to file an amended petition or

“no merit” letter.5

       On January 14, 2019,6 PCRA counsel filed a petition to withdraw and a

“no merit” letter. The “no merit” letter did not address whether trial counsel

had abandoned Appellant by failing to file a direct appeal.

       On January 16, 2019, the PCRA court entered a notice of intent to

dismiss all claims without a hearing pursuant to Pa.R.Crim.P. 907 (“Rule 907




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5No motion for a continuance appears on the certified docket or in the certified
record.
6 Pursuant to the order of October 30, 2018, PCRA counsel’s petition to
withdraw and “no merit” letter were due by December 31, 2018. Accordingly,
these filings were filed late. However, the Commonwealth did not object to
their belatedness, and the PCRA court considered their content.
Consequently, the lateness of these filings did not impact the disposition of
Appellant’s PCRA petition.

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Notice”). In the Rule 907 Notice, the PCRA court also granted counsel’s motion

to withdraw.

      According to the certified docket, the PCRA court entered an order

dismissing Appellant’s petition on February 19, 2019, but this order does not

appear in the certified record. On March 11, 2019, Appellant filed a motion

for reconsideration stating that he never received the Rule 907 Notice and

requesting that the PCRA court vacate the order of February 19, 2019, and

grant him 20 days thereafter to respond to the Rule 907 Notice. According to

the certified record, on March 18, 2019, the PCRA court granted Appellant’s

motion for reconsideration and vacated the order of February 19, 2019;

however, this order also does not appear in the certified record.

      After the PCRA court granted him a further extension of time to respond,

on April 30, 2019, Appellant filed a response to the Rule 907 Notice. Although

the response did not request to amend the PCRA petition, it did allege that

trial counsel was ineffective for failing to “file any Post-Sentence Motions, or

Appeals regarding the issues raised” and requested that PCRA counsel “not be

granted leave to withdraw[a]l as [Appellant’s] attorney and reexamine these

issues.” Response to Rule 907 Notice, 4/20/2019, at 3 (not paginated).

      On May 7, 2019, the PCRA court dismissed Appellant’s petition.         On

June 7, 2019, Appellant filed this timely appeal. On July 29, 2019, Appellant

filed his statement of errors complained of on appeal, enumerating multiple




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reasons why his trial counsel was ineffective, including “[f]ailing to file a direct

appeal.”7

        Appellant now presents the following issue for our review:

        The [PCRA c]ourt abused its discretion and created an error in law
        when, after reviewing the record denied [Appellant’]s PCRA
        Petition for Relief without a hearing. Instead, finding “There was
        no violation of the [Appellant]’s Constitutional rights.” and,
        "[Appellant] did not receive ineffective assistance..." by trial
        coun[s]el’s failure to effectuate [Appellant]’s best interest, i.e.,
        Failing to file a direct appeal; No evidence of counsel’s attempt to
        secure a Plea Agreement to a lesser charge; It was not to the
        [Appellant]’s benefit to plead guilty to the same charges as
        charged (loss of important rights); etc.

Appellant’s Brief at 2.

        “We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”

Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)).

        Appellant first argues that trial counsel “fail[ed] to file an appeal after

being requested to do so.” Appellant’s Brief at 8. While acknowledging that

“counsel is not required to advance frivolous arguments in an appeal,”

Appellant adds that “counsel may still protect his client[’]s appella[te] rights

via the procedure outlined in Anders v. California, 386 U.S. 738, 87 S.CT.

1396, 18 L.Ed. 2d 493 (1961) by advising the court and requesting permission



____________________________________________


7   The PCRA court entered its opinion on August 20, 2019.


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to withdraw.” Id. (citing Commonwealth v. Wilkerson, 416 A.2d 477, 479

(Pa. 1980)). He continues:

       The [PCRA] counsel indicated he conducted an investigation
       regarding [A]ppellant’s claims. In this investigation PCRA counsel
       noted that [A]ppellant did not file a Direct Appeal. Yet, counsel
       failed to investigate this issue. i.e., Did [Appellant] ask for a Direct
       Appeal? Instead, PCRA counsel merely investigated the things
       trial counsel did, not how there was no reasonable basis for trial
       counsel to not protect his client[’]s appella[te] rights.

Id. at 13.

       Before we can reach the merits of this claim, we must first determine

whether PCRA counsel’s “no merit” letter was deficient, as it entirely failed to

discuss this issue.8

       The no-merit letter must set forth: 1) the nature and extent of
       counsel’s review of the case; 2) each issue that the petitioner
       wishes to raise on appeal; and 3) counsel’s explanation of why
       each of those issues is meritless. Commonwealth v. Pitts, 603
       Pa. 1, 981 A.2d 875, 876 n.1 (2009); Turner, 544 A.2d at 928-
       29; [Commonwealth v.] Rykard, 55 A.3d [1177,] 1184 [(Pa.
       Super. 2012); Commonwealth v. Glover, 738 A.2d 460, 464
       (Pa. Super. 1999). Where PCRA counsel’s no-merit letter does
       not discuss all of the issues that the convicted defendant has
       raised in a first PCRA petition and explain why they lack merit, it
       does not satisfy these mandatory requirements and dismissal of
       the PCRA petition without requiring counsel to file an amended
       PCRA petition or a further, adequate no-merit letter is a
       deprivation of the right to counsel on the PCRA petition.

Commonwealth v. Kelsey, 206 A.3d 1135, 1139 (Pa. Super. 2019).

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8 “While the inadequacy of PCRA counsel’s no-merit letter is waived if not
raised before the PCRA court and this Court,” Commonwealth v. Kelsey,
206 A.3d 1135, 1140 (Pa. Super. 2019), Appellant challenged PCRA counsel’s
motion to withdraw in his Response to Rule 907 Notice and has specifically
asserted and briefed this issue in this appeal. Response to Rule 907 Notice,
4/20/2019, at 3 (not paginated); Appellant’s Brief at 13.

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      In the current action, we recognize that the PCRA court conducted an

independent review of this claim of ineffectiveness for failure to file a direct

appeal, despite PCRA counsel’s failure to include this claim in his inadequate

“no merit” letter. PCRA Court Opinion, dated August 20, 2019, at 6-7. The

error here, however, is the denial of the assistance of counsel, not the

sufficiency of the PCRA court’s opinion or review or even whether Appellant’s

claims in his PCRA petition are meritorious. Even where a pro se first PCRA

petition appears on its face to be meritless, the defendant is entitled to

representation by counsel before that determination is made. Kelsey, 205

A.3d at 1140 (citing Commonwealth v. Ramos, 14 A.3d 894, 895-96 (Pa.

Super. 2011); Commonwealth v. Stout, 978 A.2d 984, 988 (Pa. Super.

2009)).

      In Kelsey, id., as in the current action, the appellant did not waive his

right to representation by counsel, and PCRA counsel neither represented the

appellant on the merits of the PCRA petition nor filed a sufficient “no merit”

letter that addressed all of the appellant’s claims. This Court consequently

vacated the dismissal of the appellant’s PCRA petition and remanded to the

PCRA court for appointment of new PCRA counsel – which must also be our

remedy in the current appeal. Id. We thereby instruct the PCRA court to

appoint new PCRA counsel for Appellant within 21 days of the date that the

certified record is returned to the PCRA court.

      This Court also instructed in Kelsey:




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       On remand, Appellant’s new counsel shall be permitted to file an
       amended PCRA petition or, if counsel concludes in the exercise of
       his or her professional judgment that the issues raised in the PCRA
       proceeding are without merit, counsel may file an adequate no-
       merit letter that addresses all of the issues raised in Appellant’s
       PCRA petition and move to withdraw.

Id. Hence, this Court likewise orders that, upon remand, new PCRA counsel

may either:      (1) file a new amended PCRA petition raising any and all

challenges that counsel deems appropriate; or (2) if new PCRA counsel

concludes in his or her professional opinion that the issues raised in the PCRA

proceeding are without merit, new PCRA counsel may file an adequate “no

merit” letter addressing all of the issues raised in Appellant’s PCRA petition

and move to withdraw. Id.9 While we would normally issue a schedule for

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9 As we are permitting newly appointed PCRA counsel to raise any appropriate
issue upon remand, we need not address Appellant’s remaining arguments.
See Appellant’s Brief at 9-13.

Furthermore, albeit that we need not reach the merits of Appellant’s claim of
ineffectiveness of trial counsel for failure to file a direct appeal, we provide the
PCRA court with the following guidance:

       Since the failure to perfect a requested appeal is the functional
       equivalent of having no representation at all, see Evitts [v.
       Lucey], 469 U.S. [387,] 396-97 [(1985)] (noting that the failure
       to perfect an appeal “essentially waived respondent’s opportunity
       to make a case on the merits; in this sense it is difficult to
       distinguish respondent’s situation from that of someone who had
       no counsel at all”), Strickland [v. Washington, 466 U.S. 668
       (1984)], on its own terms, establishes the right to relief.
       Additionally, as President Judge McEwen reasoned, since Article
       V, Section 9 of the Pennsylvania Constitution guarantees a direct
       appeal as of right, see Commonwealth v. Wilkerson, 490 Pa.
       296, 299, 416 A.2d 477, 479 (1980), a failure to file or perfect
       such an appeal results in a denial so fundamental as to constitute



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the filing of the amended petition or “no merit” letter, we are reluctant to issue

a specific timeline given the coronavirus disease 2019 (COVID-19) pandemic.

Instead, we relinquish jurisdiction and direct the court and the parties to

comply with the standard timing requirements as much as possible.

       Order vacated. Case remanded with instructions to appoint new PCRA

counsel and for further proceedings consistent with this decision. Jurisdiction

relinquished.




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       prejudice per se. See generally Canales v. Roe, 151 F.3d 1226,
       1229-30 (9th Cir. 1998) (stating that “[i]t appears that every
       federal court of appeals to address the issue has applied some
       form of a rule of presumed prejudice where counsel fails to file a
       notice of appeal”).

       Thus, we hold that, where there is an unjustified failure to file a
       requested direct appeal, the conduct of counsel falls beneath the
       range of competence demanded of attorneys in criminal cases,
       denies the accused the assistance of counsel guaranteed by the
       Sixth Amendment to the United States Constitution and Article I,
       Section 9 of the Pennsylvania Constitution, as well as the right to
       direct appeal under Article V, Section 9, and constitutes prejudice
       for purposes of Section 9543(a)(2)(ii).        Therefore, in such
       circumstances, and where the remaining requirements of the
       PCRA are satisfied, the petitioner is not required to establish his
       innocence or demonstrate the merits of the issue or issues which
       would have been raised on appeal. . . . The remedy for the
       deprivation of this fundamental right of appeal is its restoration.

Commonwealth v. Lantzy, 736 A.2d 564, 571–73 (Pa. 1999) (footnotes
omitted); see also Commonwealth v. Bennett, 930 A.2d 1264, 1273 (Pa.
2007) (“failure to file a requested direct appeal . . . is the functional equivalent
of having no counsel at all”; “[i]n such instances, the deprivation requires a
finding of prejudice” (emphasis in original)).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2020




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