J-S33011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JACK D. PENNINGTON                         :
                                               :
                       Appellant               :   No. 1537 EDA 2017

               Appeal from the PCRA Order Entered April 10, 2017
              In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0006758-2012


BEFORE:      OTT, J., McLAUGHLIN, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 06, 2018

        Jack D. Pennington appeals from the order entered April 10, 2017, in

the Court of Common Pleas of Montgomery County, that dismissed, without a

hearing, his petition seeking relief pursuant to the Pennsylvania Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Pennington seeks

relief from the judgment of sentence to serve a term of 17 to 50 years’

imprisonment, imposed on resentencing, on his drug convictions.         In this

appeal, Pennington contends direct appeal/initial PCRA counsel was ineffective

for failing to (1) appeal the trial judge’s decision that denied the motion to

amend the concise statement, (2) move for the trial judge’s recusal on remand

prior to resentencing, (3) file a direct appeal following resentencing, and (4)


____________________________________________


   Former Justice specially assigned to the Superior Court.
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move for the trial judge’s recusal upon filing the PCRA petition.1 Based upon

the following, we affirm.

       The Honorable William R. Carpenter has summarized the background of

this case, as follows:

             By way of a brief history, on July 22, 2013, a jury convicted
       Pennington of three counts of delivery of a controlled substance,
       two counts of possession with intent to deliver methamphetamine,
       one count of possession with intent to deliver Percocet, five counts
       of dealing in unlawful proceeds, four counts of criminal use of a
       communications facility and one count of drug paraphernalia.
       These convictions were the result of a wiretap investigation
       conducted by the Narcotics Enforcement Team of the Montgomery
       County     Detective   Bureau     into    Pennington’s     sale   of
       methamphetamine and Percocet. At sentencing on October 11,
       2013, this Court sentenced Pennington to a term of imprisonment
       of 17 to 50 years pursuant to the mandatory minimum sentencing
       statute. Pennington appealed.

            On December 18, 2014, the Superior Court vacated
       Pennington’s sentence pursuant to Alleyne v. U.S., 133 S.Ct.
       2151 (2013), and remanded for resentencing. [Commonwealth
       v. Pennington, 116 A.3d 691 (Pa. Super. 2014) (unpublished
       memorandum), appeal denied, 117 A.3d 1281 (Pa. 2015), appeal
       denied, 125 A.3d 776 (Pa. 2015).] On September 16, 2015, this
       Court restructured the sentence and Pennington was again
       sentenced to an aggregate term of 17 to 50 years’ imprisonment.
       Pennington did not appeal.

              On October 17, 2016, Pennington filed his first counseled
       PCRA petition, at issue in this appeal.1 The Commonwealth filed
       an answer to the petition. On January 23, 2017, this Court issued
       a pre-dismissal notice pursuant to Pa.R.Crim.P. 907, notifying him
       of this Court’s intention to dismiss his petition without a hearing
       and of his right to file a response to the 907 notice. Despite a brief
       extension of time to do so, no response was filed. On April [10],
       2017, a final order was issued. Pennington appealed, and was
____________________________________________


1 Although Pennington raised two other issues in his brief, he indicates those
issues are withdrawn. See Pennington’s Brief at 4, 9.

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      directed to file a concise statement of errors complained of on
      appeal pursuant to Pa.R.A.P. 1925(b). Pennington did so.

         ______________________________________________

         1 The PCRA [petition] is timely. A year from the final
         judgment of sentence fell on Sunday, October 16, 2016,
         making the filing of this PCRA petition on October 17,
         2106 timely.
         ______________________________________________

PCRA Court Opinion, 7/31/2017, at 1-2.

      Relevant to the issues raised in this appeal, we note that following

Pennington’s jury trial, trial counsel filed a notice of appeal and a Pa.R.A.P.

1925(b) statement. Thereafter, direct appeal/initial PCRA counsel entered his

appearance and represented Pennington from the time he filed a motion to

amend the concise statement, which was denied, through direct appeal, and

on resentencing, as well as from the filing of the PCRA petition, through

dismissal of the petition, by order entered April 10, 2017.     Present PCRA

counsel filed the notice of appeal from the PCRA court’s dismissal order on

May 9, 2017.

      The four issues raised in this appeal challenge the stewardship of direct

appeal/initial PCRA counsel. Initially, we must determine if we are permitted

to address the merits of these claims which were raised for the first time when

present counsel filed a concise statement in the PCRA court in connection with

this appeal.

      In its Pa.R.A.P. 1925(a) opinion, the PCRA court did not address any of

these direct appeal/initial PCRA counsel ineffectiveness claims, reasoning that



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the claims were waived for failure to raise them prior to this appeal. The PCRA

court opined:

      [I]n this appeal, Pennington raises for the first time issues of
      [direct appeal/initial PCRA counsel’s] alleged ineffectiveness.
      These claims are waived for failure to raise them prior to this
      appeal. … [Direct appeal/initial PCRA counsel] could have
      requested this Court to allow him to amend his PCRA petition to
      include these claims, but he did not. Therefore, they are waived
      on appeal because they were not properly preserved.

PCRA Court Opinion, 7/31/2107, at 7 (citations omitted).

      Pennington, however, argues present PCRA counsel did not represent

him until after the PCRA court denied relief and, because direct appeal/initial

PCRA counsel could not allege his own ineffectiveness, the concise statement

filed by present PCRA counsel in this appeal was the first instance where direct

appeal/initial   PCRA   counsel’s   ineffectiveness   could   be   raised.   See

Pennington’s Brief at 11. This argument is unavailing.

      A similar issue was presented to our Court in Commonwealth v. Ford,

44 A.3d 1190 (Pa. Super. 2012). After Ford was provided an evidentiary

hearing on his PCRA claims, which were denied, his PCRA counsel filed a notice

of appeal one day late. As a result, the appeal was quashed. Thereafter, Ford

filed a petition for allowance of appeal in our Supreme Court, based on PCRA

counsel’s ineffectiveness in filing an untimely appeal.       Our Supreme Court

remanded for a determination of the status of counsel and permitted Ford to

appeal nunc pro tunc within 30 days of a determination of counsel’s status.

The PCRA court appointed new counsel, and in the reinstated appeal, new



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counsel filed a Pa.R.A.P. 1925(b) concise statement, alleging PCRA counsel

was ineffective for failing to raise an issue in the PCRA proceeding. A panel of

our Court reviewed precedential decisions of the Pennsylvania Supreme Court

and determined that such claims could not be raised for the first time on

appeal:

      We acknowledge that Appellant did raise the ineffectiveness of
      PCRA counsel issue in his Pa.R.A.P. 1925(b) statement after the
      Supreme Court remanded the matter and new counsel was
      appointed for purposes of advancing his appeal nunc pro tunc, i.e.,
      at the first opportunity. … Nonetheless, a majority of the Supreme
      Court agrees that issues of PCRA counsel effectiveness must be
      raised in a serial PCRA petition or in response to a notice of
      dismissal before the PCRA court. … Therefore, we hold absent
      recognition of a constitutional right to effective collateral
      review counsel, claims of PCRA counsel ineffectiveness
      cannot be raised for the first time after a notice of appeal
      has been taken from the underlying PCRA matter.

Commonwealth v. Ford, 44 A.3d 1190, 1200-1201 (Pa. Super. 2012)

(emphasis supplied).

      In Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super. 2014) (en

banc), this Court reaffirmed Ford.      More recently, in Commonwealth v.

Smith, 121 A.3d 1049 (Pa. Super. 2015), a panel of this Court opined: “With

respect to the petitioner’s duties, PCRA claims are more civil than criminal in

nature, which places the burden of moving the case forward on the party in

the plaintiff's position, who in this context is the PCRA petitioner.” Id. at 1054.

The Smith Court further stated:        “Appellant had an affirmative duty to

preserve his claims.     If Appellant wanted to assert claims of ineffective

assistance of PCRA counsel, he should have consulted counsel and/or the court

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to learn the correct procedure.” Id. at 1055. See also Commonwealth v.

Rigg, 84 A.3d 1080, 1085 (Pa. Super. 2014) (“[W]here the new issue is one

concerning PCRA counsel’s representation, a petitioner can preserve the issue

by including that claim in his Rule 907 response or raising the issue while the

PCRA court retains jurisdiction.”).

      In light of the foregoing case law, we agree with the PCRA court that

Pennington’s claims of direct appeal/initial PCRA counsel’s ineffectiveness that

were raised for the first time in the Rule 1925(b) statement are not

reviewable.

      Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/6/18




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