J-S26045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT
                                                                  OF
                                                             PENNSYLVANIA
                             Appellee

                        v.

    MARCUS D. BROOKING,

                             Appellant                    No. 3172 EDA 2017


              Appeal from the PCRA Order Entered August 24, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012983-2013


BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED AUGUST 03, 2018

        Appellant, Marcus D. Brooking, appeals from the post-conviction court’s

order dismissing, without a hearing, his first petition filed under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Appellant contends

that his PCRA counsel was given inadequate time to review his case prior to

the court’s dismissing his petition.           After careful review, we agree with

Appellant. Therefore, we vacate the court’s order denying his petition and

remand for further proceedings.

        The facts of Appellant’s case are not pertinent to our disposition of his

present appeal.      We need only note that on December 8, 2014, Appellant

entered a guilty plea to one count of third-degree murder, possession of a

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*   Former Justice specially assigned to the Superior Court.
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firearm by a person prohibited, and possessing an instrument of crime. He

was sentenced that same day to an aggregate term of 23 to 46 years’

incarceration.

      On December 16, 2014, Appellant filed a motion to withdraw his guilty

plea, contending, inter alia, that his trial counsel had acted ineffectively by

pressuring him into entering that plea. Following a hearing, the trial court

denied Appellant’s motion to withdraw his plea. He did not file a direct appeal.

      However, on February 10, 2015, Appellant filed a PCRA petition seeking

the reinstatement of his direct appeal rights. The PCRA court granted that

petition, and Appellant filed a direct appeal with this Court, arguing that his

guilty plea was not knowing, intelligent, and voluntary, and that his counsel

had acted ineffectively by inducing him to enter that plea. This Court deemed

Appellant’s ineffectiveness claim premature, and dismissed it without

prejudice to his right to raise it on collateral review. See Commonwealth v.

Brooking, No. 806 EDA 2015, unpublished memorandum at 8 (Pa. Super.

filed February 8, 2016).      Nevertheless, we concluded that the record

demonstrated that Appellant’s plea was knowing, intelligent, and voluntary.

See id. Accordingly, we affirmed his judgment of sentence.

      On October 28, 2016, Appellant filed the timely PCRA petition that

underlies the present appeal. Therein, he again claimed, among other things,

that his trial counsel acted ineffectively in compelling him to plead guilty. The

PCRA court appointed Lauren Baraldi, Esq., to represent Appellant. However,

on June 27, 2017, Attorney Baraldi filed a petition to withdraw, stating that

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she had obtained new employment and was closing her law practice in

Philadelphia effective July 17, 2017. The court did not immediately rule on

Attorney Baraldi’s petition, and on July 11, 2017, she filed a second petition

to withdraw and a no-merit letter pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988), and Commonwealth Finley, 550 A.2d 213 (Pa.

Super. 1988).

       According to Appellant, at a court proceeding on July 14, 2017, Attorney

Baraldi again informed the PCRA court that she must withdraw due to the

closing of her law practice. Appellant’s Brief at 5. Appellant claims that David

Rudenstein, Esq., happened to be in the courtroom and was asked by the

PCRA court if he would “take on the case[,] … review the matter[,] and …

advise the [c]ourt as to whether the [Turner/]Finley Letter [filed by Attorney

Baraldi] was adequate.” Id. Attorney Rudenstein agreed to do so, and the

court issued an order appointing him as Appellant’s PCRA counsel on July 14,

2017. That same day, the court also issued a Pa.R.Crim.P. 907 notice of its

intent to dismiss Appellant’s petition. The court set the ‘formal dismissal’ date

for August 24, 2017.

       On August 9, 2017, Attorney Rudenstein requested a continuance of the

August 24, 2017 dismissal date.1 On August 14, 2017, the PCRA court issued

an order denying that motion without explanation. Then, on August 24, 2017,

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1Attorney Rudenstein’s motion for a continuance was not docketed, and is not
contained in the certified record. The court acknowledges that such a motion
was filed on August 9, 2017, in the August 14, 2017 order denying it.

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the PCRA court issued an order, and accompanying opinion, denying

Appellant’s PCRA petition.   The court did not acknowledge, or discuss, its

denial of Attorney Rudenstein’s continuance request.      Instead, the court

addressed the issues presented by Appellant in his pro se petition, concluding

that they were all inadequately pled and/or meritless.

      Appellant filed a timely notice of appeal. The PCRA court did not order

him to file a Pa.R.A.P. 1925(b) statement. Herein, Appellant presents three

issues for our review, which we have reordered for ease of disposition:

      1. Was [t]he [PCRA court] in error when [it] dismissed this case
         pursuant to the [Turner/]Finley Letter filed by prior counsel,
         but after appointing the undersigned to review the case and all
         without giving this counsel a meaningful chance or time to
         make said review?

      2. Was [Appellant’s] underlying [g]uilty [p]lea to the charges
         made in an involuntary fashion?

      3. Was [A]ttorney … Baraldi …, the second PCRA attorney on this
         case[,] ineffective when she drafted a [Turner/]Finley Letter
         which the [c]ourt ultimately accepted?

Appellant’s Brief at 3.

      Our standard of review regarding an order denying post-conviction relief

under the PCRA is whether the determination of the court is supported by the

evidence of record and is free of legal error. Commonwealth v. Ragan, 923

A.2d 1169, 1170 (Pa. 2007). This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding. Commonwealth v. Touw, 781 A.2d

1250, 1252 (Pa. Super. 2001).



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        Regarding Appellant’s first issue, we recognize “that the decision to

grant or deny a request for a continuance is within the sound discretion of the

trial court.” Commonwealth v. Prysock, 972 A.2d 539, 541 (Pa. Super.

2009). We will only reverse a court’s decision to deny a continuance request

        upon a showing of an abuse of discretion. As we have consistently
        stated, an abuse of discretion is not merely an error judgment.
        Rather, discretion is abused when the law is overridden or
        misapplied, or the judgment exercised is manifestly unreasonable,
        or the result of partiality, prejudice, bias, or ill-will, as shown by
        the evidence or the record….

Id. (citations omitted).

        Here, Appellant contends that it was an abuse of discretion to deny

Attorney Rudenstein’s request for a continuance. He explains:

        [T]he [c]ourt itself appointed [Attorney Rudenstein] to review this
        matter and [Appellant] was entitled to such a review as his
        previous counsel was getting out of the case before it was over.
        The [c]ourt did not permit counsel the sufficient time to make that
        review.[2] Perhaps more importantly, there was simply no reason
        then and no reason now for the [c]ourt to have refrained from
        affording [Attorney Rudenstein] an extra four to six weeks to
        make further review and report to the [c]ourt. Furthermore,
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2   Attorney Rudenstein explains that,
        there are very few attorneys in Philadelphia who will accept PCRA
        appointments. This counsel is one of them and receives many
        such appointments. [The PCRA judge in this case] is very well
        aware of that. There is simply no way in the course of counsel’s
        practice that he could have made an investigation of a case,
        corresponded with his client[,] and evaluated the matter in five or
        six weeks. If it was the only case on counsel’s roster, counsel
        could have done it. However, counsel was unable to put this case
        ahead of many other cases which were waiting their turn.

Appellant’s Brief at 5 n.1.


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      [Appellant] is prejudiced in that his counsel, as noted above in this
      [b]rief[,] would not simply have reported that previous counsel[,
      Attorney Baraldi,] did a good job but would have reported that
      [she] was perhaps in error when she filed a [Turner/]Finley
      Letter and where she should have filed an Amended Petition. That
      does not mean that [Appellant] would have eventually received a
      new trial[,] but he would have received his day in [c]ourt; he
      would have had [his trial counsel’s] actions reviewed and he could
      have had an appeal on the record if he lost. Thus, [Appellant] was
      indeed prejudiced.

Appellant’s Brief at 12.

      We are compelled to agree with Appellant. Attorney Rudenstein acted

with reasonable haste in requesting the continuance on August 9, 2016, which

was only a few weeks after he was appointed by the PCRA court. Additionally,

the continuance request was counsel’s first, and it was made well before the

formal dismissal date of August 24, 2016. The PCRA court did not offer any

reason for denying the continuance request in the order doing so, nor in its

opinion accompanying the order denying Appellant’s petition.             A PCRA

petitioner is entitled to representation during the litigation of their first PCRA

petition, regardless of whether their underlying claims have merit.           See

Commonwealth v. Albrecht, 720 A.2d 693, 699-700 (Pa. 1998). Given this

right to counsel, we conclude that the PCRA court abused its discretion by

appointing Attorney Rudenstein and then denying, without explanation,

counsel’s request for more time to review Appellant’s case.        Therefore, we

vacate the PCRA court’s order and remand for the court to provide Attorney

Rudenstein with an additional 60 days to review Appellant’s petition.




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      Order vacated. Case remanded for further proceedings.   Jurisdiction

relinquished.

      Judge Bowes joins this memorandum.

     President Judge Emeritus Stevens files a dissenting memorandum.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/18




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