J-S02026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JAMES GOLDEN

                            Appellant                No. 143 EDA 2015


                Appeal from the PCRA Order September 18, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0707601-2000


BEFORE: SHOGAN, J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.:                        FILED JANUARY 20, 2016

        James Golden appeals from the trial court’s order denying his petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. After careful review, we affirm.

        On July 23, 2009, Golden pled guilty to escape1 and was sentenced to

3-23 months’ incarceration, plus 4 years of probation with immediate parole.

On the same day, the court found Golden in technical violation of his

probation on a sentence imposed in 2001 for theft by receiving stolen

property (RSP)2 and alteration/destruction of VIN.3     As a result, the court

____________________________________________


1
    18 Pa.C.S. § 5121.
2
    18 Pa.C.S. § 3925(A).
3
    18 Pa.C.S. § 1.4(A).
J-S02026-16



terminated his parole and revoked his probation on those sentences and

ordered him to serve an aggregate sentence of 7-14 years’ incarceration. At

his violation of probation (VOP) hearing, Golden was represented by Mary

Maran, Esquire, who appeared on behalf of Golden’s privately-retained trial

attorney, Jack McMahon, Esquire (Attorney McMahon/counsel).4

       On July 29, 2009, Attorney McMahon filed a motion for reconsideration

of Golden’s VOP sentence. The motion was denied without a hearing. On

August 14, 2009, counsel filed a notice of appeal from Golden’s VOP

sentence. However, on September 18, 2009, counsel filed a petition, in the

Superior Court, to withdraw as appellate counsel. In his petition, Attorney

McMahon stated that he was privately hired to represent Golden in the trial

court only, that he believes Golden is indigent and may qualify for court-

appointed counsel, and that he has informed Golden of his intent to

withdraw as his counsel “due to [Golden’s] failure to pay for counsel on

appeal.” Petition to Withdraw as Counsel, 9/18/09.

       On October 8, 2009, this Court granted counsel’s motion and directed

the trial court to determine Golden’s eligibility for court-appointed counsel

within 60 days. On October 17, 2009, Golden moved the court to appoint an

attorney to represent him on appeal due to counsel’s withdrawal.      In his

motion, Golden stated that he was not presently employed, that he had not

____________________________________________


4
 Golden was found to have violated his probation on two prior occasions, in
2005 and 2007.



                                           -2-
J-S02026-16



received any income in the past twelve months, and that he did not have

any checking or savings accounts.    On December 11, 2009, the trial court

held a hearing and determined that Golden was not eligible for either court-

appointed counsel or an attorney from the public defender’s office.      The

court ordered Golden to notify the Superior Court, within 20 days of the date

of its decision as to whether he intended to retain new counsel or represent

himself on his pending appeal.

       On December 24, 2009, Golden filed a pro se motion for appointment

of counsel which the trial court denied, without prejudice, to apply to the

trial court for in forma pauperis status and/or appointment of counsel. The

court also ordered that Golden either proceed pro se unless or until he

retained private counsel or the trial court appointed counsel to represent

him.   On February 16, 2010, the court ordered that Golden, pro se, file a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal no later than

March 19, 2010. Golden filed a motion for an extension within which to file

his Rule 1925(b) statement which the court granted. On March 11, 2010,

Golden filed his pro se Rule 1925(b) statement raising the issue that

Attorney McMahon did not represent him at his VOP hearing, but, rather had

another attorney who was unfamiliar with the case advocate on Golden’s

behalf.   Golden alleged that VOP counsel “failed to argue any and all

elements during [his] VOP [hearing] . . . and failed to object to any and all

remarks made against appellant by the District Attorney[.]” Defendant’s Pro

Se Rule 1925(b) Statement, 3/11/10, at 2. The trial court authored a Rule

                                    -3-
J-S02026-16



1925(a) opinion on June 30, 2010. When Golden failed to file an appellate

brief, this Court quashed his appeal.            See Commonwealth v. Golden,

2391 EDA 2009 (September 30, 2010) (unpublished memorandum).

        On July 21, 2011, Golden filed the instant, timely pro se PCRA petition

alleging that Attorney McMahon was ineffective for failing to file an appellate

brief to the Superior Court in his direct appeal and that he was sentenced to

an illegal sentence for RSP.         PCRA Counsel was appointed5 and filed an

amended petition on his behalf claiming that Golden was abandoned by

counsel on appeal and that the court failed to appoint him counsel. PCRA

counsel requested that Golden’s appeal rights either be reinstated nunc pro

tunc or that the court remand this case to the trial court for an evidentiary

hearing under the PCRA.         On July 11, 2011, the court issued notice of its

intent to dismiss Golden’s petition pursuant to Pa.R.Crim.P. 907.       On July

18, 2014, Golden filed a pro se response to the Rule 907 notice.             On

September 18, 2014, the PCRA court dismissed Golden’s petition.             This

appeal follows.

        On appeal, Golden presents the following issues for our consideration:

        (1)   Whether the judge was in error in denying the Appellant’s
              PCRA petition without an evidentiary hearing on the issues
              raised in the amended PCRA petition regarding trial
              counsel’s ineffectiveness.



____________________________________________


5
    See Pa.R.Crim.P. 904.



                                           -4-
J-S02026-16


         (2)     Whether the judge was in error in not granting relief on
                 the PCRA petition alleging counsel was ineffective.6

         The standard of review of an order denying a PCRA petition is whether

that determination is supported by the evidence of record and is free of legal

error.     The PCRA court’s findings will not be disturbed unless there is no

support for the findings in the certified record.                 Commonwealth v.

Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012). Moreover, a court may

dispose of a PCRA petition without a hearing “when the petition and answer

show that there is no genuine issue concerning any material fact and that

the defendant is entitled to relief as a matter of law.” Pa.R.Crim.P. 907(2).

         Essentially, Golden claims that counsel was ineffective for abandoning

him on appeal where “prior counsel had no reasonable basis for failing to

take the necessary actions to protect [him], and [he] was prejudiced as a

result.”       Appellant’s Brief, at 17.    Specifically, Golden takes issue with the

fact that the PCRA court dismissed his petition, based on this ineffectiveness

claim, without holding a hearing.

         We first note that with respect to claims of ineffective assistance of

counsel,        we   begin   with   the    presumption   that    counsel    is   effective.

Commonwealth v. Spotz, 47 A.3d 63, 76 (Pa. 2012).                       To prevail on an

ineffectiveness        claim,   a   petitioner    must   plead    and      prove,   by   a


____________________________________________


6
  We have consolidated these two issues on appeal as they both involve the
same underlying claim regarding counsel’s effectiveness and whether the
claim warrants a PCRA hearing.



                                            -5-
J-S02026-16



preponderance of the evidence, three elements: (1) the underlying legal

claim has arguable merit; (2) counsel had no reasonable basis for his or her

action or inaction; and (3) the petitioner suffered prejudice because of

counsel's action or inaction. Id. (citation omitted).

      Pursuant to Pa.R.Crim.P. 120(B):

      (1)    Counsel for a defendant may not withdraw his or her
             appearance except by leave of court.

      (2)    A motion to withdraw shall be:

         (a)    filed with the clerk of courts, and a copy concurrently
                served on the attorney for the Commonwealth and
                the defendant; or

         (b)    made orally on the record in open court in the
                presence of the defendant.

      (3)    Upon granting leave to withdraw, the court shall determine
             whether new counsel is entering an appearance, new
             counsel is being appointed to represent the defendant, or
             the defendant is proceeding without counsel.

Pa.R.Crim.P. 120(B).       Moreover, counsel’s obligation to represent the

defendant, whether as retained or appointed counsel, remains until leave to

withdraw is granted by the court. Commonwealth v. Librizzi, 810 A.2d

692 (Pa. Super. 2002).

      Under the Rules of Professional Conduct, “a lawyer may withdraw from

representing a client” if “the client fails substantially to fulfill an obligation to

the lawyer regarding the lawyer’s services and has been given reasonable

warning that the lawyer will withdraw unless the obligation is fulfilled.”

Pa.R.P.C. 1.16(b)(5). See Explanatory Comment [8] to Rule 1.16 (stating

that subsection (b)(5) applies in situations where client does not abide by

                                        -6-
J-S02026-16



agreement concerning fees).     Moreover, in Commonwealth v. Ford, 715

A.2d 1141, 1145 (Pa. Super. 1998), our Court stated:

      There is no bright line rule governing when a trial court abuses
      its discretion in ruling on a petition to withdraw as counsel. See
      Commonwealth v. Sweeney, [] 533 A.2d 473, 481 (Pa. Super.
      1987). Rather, a court must weigh the interests of the client in a
      fair adjudication, the interests of the Commonwealth in efficient
      administration of justice, and the interests of the attorney
      seeking withdrawal. See id. Therefore, “resolution of the
      problem turns upon a case by case analysis with particular
      attention to the reasons given by the trial court at the time the
      request for withdrawal is denied.” Id.

      It is certainly true that counsel may seek to withdraw from
      representation for a variety of reasons, from ethical to financial.
      See Commonwealth v. Keys [] 580 A.2d 386, 387 (Pa. Super.
      1990). This is not to say, however, that every time withdrawal is
      permissible from the attorney’s perspective that the Court must
      allow it. As indicated by the Sweeney standard, the interests of
      the Commonwealth and the client must be considered before
      withdrawal is proper.

Id. at 1145. See also Commonwealth v. Roman, 549 A.2d 1320, 1321

(Pa. Super. 1988) (“There are no prophylactic rules which exist when

determining whether a denial or withdrawal amounts to an abuse of

discretion[;] [e]ach case must be determined by balancing the competing

interests giving due regard to the facts presented.”).

      Critically and necessarily, in the instant case Attorney McMahon filed a

formal motion to withdraw his appearance with this Court and also notified

Golden of his intent to withdraw. Ford, supra (before attorney is permitted

to withdraw trial court must be served notice of intention to withdraw). See

Commonwealth        v.   Worthy,   446     A.2d   1327   (Pa.   Super.   1982);



                                     -7-
J-S02026-16



Commonwealth v. Liska, 380 A.2d 1303 (Pa. Super. 1977). McMahon was

granted leave to withdraw as counsel of record, Pa.R.A.P. 120(B)(1), but

only after he ensured Golden’s appellate rights were preserved.

      First, and foremost, we note that in accordance with Golden’s express

wishes, counsel preserved Golden’s appeal rights by filing a timely notice of

appeal on his behalf. Compare Keys, supra (where counsel did not seek

allowance by court to formally withdraw prior to expiration of appeal period

and where appellant’s pro se attempt to perfect direct appeal resulted in

quashal of appeal, procedural default resulted in appellant’s appeal rights to

be   reinstated)   with   Sweeney,     supra       (court   noted   that   counsel’s

preparation of notice of appeal for defendant minimized any prejudice

resulting from his subsequent withdrawal). See Pa.R.P.C. 1.16 (lawyer may

withdraw from representing client if withdrawal can be accomplished without

material adverse effect on interests of client).

      Moreover, on December 11, 2009, the trial court held a hearing on the

issue as to whether Golden was entitled to court-appointed counsel. At the

hearing, Golden testified that his family had helped him pay counsel’s fees.

N.T. Hearing, 12/11/09, at 9. However, Golden testified that neither he nor

his family had money for a lawyer to represent him on appeal from his

probation violation sentence. Id. at 8.

      Instantly, we conclude that the trial court’s decision is supported in the

record. Where financial concerns legitimately forced privately-retained trial

counsel to withdraw, see Sweeney, supra, and where counsel protected

                                      -8-
J-S02026-16



Golden’s appellate rights and informed him in advance of his intent to

withdraw, we do not find the court’s order granting counsel’s motion to

withdraw was an abuse of discretion.             Ford, supra; Commonwealth v.

Scheps, 523 A.2d 363 (Pa. Super 1987). Having determined that counsel

did not abandon Golden on appeal, the underlying claim of ineffectiveness is

meritless. Spotz, supra. Accordingly, the court properly denied Golden’s

petition without a hearing. Pa.R.Crim.P. 907(2).

       Order affirmed.7

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2016




____________________________________________


7
  We also note that Golden’s October 17, 2009 motion asking the court to
appoint an attorney to represent him on appeal due to counsel’s withdrawal
could be construed as an implicit discharge of Attorney McMahon from
further representation. See Sweeney, supra at 479 (where defendant
could no longer afford privately retained counsel for appeal and where
defendant requested the trial court appoint him appellate counsel knowing
that counsel was aware that defendant’s family could no longer retain
counsel, such actions amounted to an implied acquiescence of counsel’s
withdrawal).



                                           -9-
J-S02026-16




              - 10 -
