J-A14039-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
STEPHEN E. JILES, :
:
Appellant : No. 1641 MDA 2014
Appeal from the PCRA Order Entered August 28, 2014,
in the Court of Common Pleas of York County,
Criminal Division, at Nos.: CP-67-CR-0002718-2009; CP-67-CR-0002719-
2009; CP-67-CR-0002745-2010; CP-67-CR-0003039-2009
BEFORE: BENDER, P.J.E., JENKINS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 17, 2015
Stephen E. Jiles (Appellant) appeals pro se from the order entered
August 28, 2014,1 which denied his “Motion to Re-Instate Appeal Rights or,
in the Alternative, to Have Docketed Notice of Appeal Processed by the Clerk
of Courts.” For the reasons that follow, we vacate the court’s order denying
Appellant’s motion and remand for further proceedings consistent with this
memorandum.
1
This order was dated August 26, 2014, docketed August 27, 2014, and
sent to the parties on August 28, 2014. We observe that “‘[i]n a criminal
case, the date of entry of an order is the date the clerk of courts enters the
order on the docket, furnishes a copy of the order to the parties, and records
the time … of notice on the docket.’” Commonwealth v. Parks, 768 A.2d
1168, 1171 (Pa. Super. 2001) (emphasis omitted) (quoting
Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000); see
also Pa.R.Crim.P. 114. Many of the orders in this case were signed,
docketed, and served on different dates. Going forward, we will refer to the
date appearing on the particular filing for ease of discussion.
*Retired Senior Judge assigned to the Superior Court.
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Following his convictions for numerous counts of robbery and other
related offenses at the above docket numbers, Appellant was sentenced to
an aggregate term of nine to twenty-one years’ imprisonment. In a
consolidated appeal, this Court affirmed Appellant’s judgment of sentence on
April 4, 2012. Commonwealth v. Jiles, 48 A.3d 469 (Pa. Super. 2012)
(unpublished memorandum).
On January 4, 2013, Appellant pro se timely filed a petition pursuant
to the Post Conviction Relief Act (PCRA),2 raising, inter alia, a claim that
counsel was ineffective for failing to file a petition for allowance of appeal to
the Supreme Court of Pennsylvania from this Court’s affirmance of his
judgment of sentence. The PCRA court appointed John Hamme, Esquire, as
counsel. On April 24, 2013, following a hearing, the PCRA court granted
Appellant’s petition with respect to that claim and reinstated Appellant’s
right to file a petition for allowance of appeal nunc pro tunc. The PCRA court
denied the petition in all other respects.
On May 16, 2013, Appellant filed a counseled notice of appeal to this
Court from the PCRA court’s April 24, 2013 order. On May 23, 2013,
Appellant filed a counseled petition for allowance of appeal to our Supreme
Court, which was denied on October 2, 2013. Commonwealth v. Jiles, 76
A.3d 539 (Pa. 2013). On March 5, 2014, Appellant pro se filed another
2
42 Pa.C.S. §§ 9541-9546.
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PCRA petition. Appellant also requested the appointment of counsel. On
April 15, 2014, this Court affirmed the PCRA court’s April 24, 2013 order. 3,4
Commonwealth v. Jiles, 102 A.3d 533 (Pa. Super. 2014). On May 1,
2014, the PCRA court appointed William Graff, Esquire, to represent
Appellant for purposes of his March 5, 2014 PCRA petition.
On June 26, 2014, the PCRA court held a hearing on Appellant’s
petition. At the hearing, Attorney Graff presented two issues to the PCRA
court, but rather than advocate for his client, Attorney Graff essentially
informed the PCRA court that the issues did not warrant relief. N.T.,
6/26/2014, at 2-7. Following the hearing, the PCRA court dismissed
Appellant’s PCRA petition.
Notwithstanding the procedural irregularities already outlined above,
at this point, the procedural posture of this case begins to fall into complete
disarray. A review of the record clearly reveals that Appellant sought to
appeal the dismissal of his March 5, 2014 petition, but the clerk of courts
3
This Court also granted Attorney Hamme’s application to withdraw.
Commonwealth v. Jiles, 102 A.3d 533 (Pa. Super. 2014).
4
The appeal from the portions of the April 24, 2013 order denying relief
should not have proceeded because that order also granted Appellant the
right to file a petition for allowance of appeal nunc pro tunc. See
Commonwealth v. O’Neil, 573 A.2d 1112, 1116 (Pa. Super. 1990)
(quashing the appeal because “a [PCRA] petition filed while a defendant’s
direct appeal remains pending is premature”). However, by the time the
appeal was decided by this Court, the petition for allowance of appeal had
been denied. Apparently, the panel believed that in the interest of judicial
economy, the appeal should be entertained.
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and PCRA court failed to handle appropriately his pro se filings evidencing
that fact,5 and his appointed counsel failed to act altogether. As a result,
Appellant was denied his right to appeal the PCRA court’s June 26, 2014
order dismissing his petition.
Appellant then filed his “Motion to Re-Instate Appeal Rights or, in the
Alternative, to Have Docketed Notice of Appeal Processed by the Clerk of
Courts” on August 20, 2014. On August 28, 2014, the PCRA court denied
Appellant’s motion. This appeal followed.
Appellant presents the following issues for our consideration:
[1.] Whether [A]ppellant was denied his right to appeal the
dismissal of his PCRA petition when his pro se notice of appeal
and related documents were not processed by the clerk of courts
after appointed counsel did not respond to the notice that the
appeal had been filed?
[2.] Did the [PCRA] court commit error by not re-instating
[A]ppellant’s right to appeal the dismissal of his PCRA petition
when the filing of the notice of appeal evidenced a clear and
5
These filings included a July 17, 2014 pro se notice of appeal and a July 28,
2014 request to proceed pro se on appeal. According to the PCRA court, the
clerk of courts, inter alia, docketed Appellant’s pro se notice of appeal, but it
was not processed to this Court until September 25, 2014. PCRA Court
Opinion, 12/8/2014, at 5. With respect to Appellant’s request to proceed
pro se on appeal, the PCRA court explained that it sent a letter informing
Appellant that because he was represented by counsel, the PCRA could not
take any further action regarding his request, but it would forward the
request to counsel. Id. at 4. We note that in Commonwealth v.
Robinson, 970 A.2d 455 (Pa. Super. 2009), this Court held that “in any
case where a defendant seeks self-representation in a PCRA proceeding and
where counsel has not properly withdrawn, a hearing [pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998)] must be held.”
Robinson, 970 A.2d at 456.
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obvious intent and desire to appeal said decision and was
appointed counsel, William H. Graff, Jr., ineffective for not taking
the appropriate steps to further such appeal?
[3.] Whether trial counsel, Kevin Hoffman, rendered ineffective
assistance by failing to move for dismissal of case No. CP-67-CR-
2745-2010, based on a denial of due process and prosecutorial
misconduct?
[4.] Whether trial counsel, Kevin Hoffman, was ineffective for
offering erroneous advice with regard to accepting or rejecting a
plea offered by the Commonwealth that was significantly less
onerous than the prison time imposed following trial?
[5.] Whether [A]ppellant was subjected to structural error when
a judge who decided pre-trial motions was involved in an
intimate relationship with the assistant district attorney who
prepared and submitted said motions resulting in a denial of due
process?
[6.] Whether trial and direct appeal counsel, Kevin Hoffman,
was ineffective for failing to file an application for relief in the
appellate court when he discovered that Judge Kelley was
intimately involved with the assistant district attorney who
prepared and submitted several pre-trial motions decided by
Judge Kelley?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
Preliminarily, we observe that the PCRA court characterizes Appellant’s
March 5, 2014 PCRA petition as his second, while Appellant characterizes
that petition as his first. We agree with Appellant. “This Court has
explained that when a PCRA petitioner’s direct appeal rights are reinstated
nunc pro tunc in his first PCRA petition, a subsequent PCRA petition will be
considered a first PCRA petition for timeliness purposes.” Commonwealth
v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 2013). Because the PCRA court
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reinstated Appellant’s right to file a petition for allowance of appeal with our
Supreme Court in connection to his PCRA petition filed January 4, 2013,
Appellant’s judgment of sentence was not final until 90 days after our
Supreme Court denied it, and his March 5, 2014 PCRA petition was his first
collateral attack on that judgment of sentence.
Rule 904 of the Rules of Criminal Procedure requires the appointment
of counsel for an indigent petitioner on his or her first PCRA petition.
Pa.R.Crim.P. 904(C). In this regard, this Court has stated as follows:
An indigent petitioner is entitled to representation by
counsel for a first petition filed under the PCRA. This right to
representation exists throughout the post-conviction
proceedings, including any appeal from disposition of the petition
for post-conviction relief. Once counsel has entered an
appearance on a defendant’s behalf, counsel is obligated to
continue representation until the case is concluded or counsel is
granted leave by the court to withdraw his appearance.
Commonwealth v. Brown, 836 A.2d 997, 998-99 (Pa. Super. 2003)
(citations and internal quotation marks omitted); see also Commonwealth
v. Peterson, 683 A.2d 908, 911 (Pa. Super. 1996) (holding that a PCRA
petitioner is entitled to counsel for his first PCRA petition, regardless of the
merits of his claims).
Moreover, [t]his rule [has not been] limited to the mere
naming of an attorney to represent an accused, but also
envisions that counsel so appointed shall have the opportunity
and in fact discharge the responsibilities required by his
representation.
***
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In addressing the petitioner’s right to counsel under the
precursor to the PCRA, we admonished that [w]hen appointed
counsel fails to amend an inarticulately drafted pro se [post
conviction] petition, or fails otherwise to participate
meaningfully, this [C]ourt will conclude that the proceedings
were, for all practical purposes, uncounseled and in violation of
the representation requirement …. Both this Court and our
Supreme Court have recognized that a post conviction petition is
effectively uncounseled under a variety of circumstances
whenever omissions of record demonstrate that counsel’s
inaction deprived the petitioner the opportunity of legally trained
counsel to advance his position in acceptable legal terms.
Commonwealth v. Karanicolas, 836 A.2d 940, 946 (Pa. Super. 2003)
(citations and internal quotation marks omitted); see also Commonwealth
v. Wiley, 966 A.2d 1153, 1158-59 (Pa. Super. 2009) (remanding for court
to permit petitioner to file a counseled PCRA petition where petitioner was
“chronically unrepresented by appointed counsel, there was never an
amended counseled PCRA petition filed, and [petitioner] apparently [was]
forced to act on his own”).
Herein, we conclude that Appellant’s first petition was uncounseled for
all practical purposes. Once appointed, Attorney Graff did not file an
amended petition on Appellant’s behalf. Moreover, although Attorney Graff
appeared at the June 26, 2014 hearing, a review of the transcript reveals
that he failed to fulfill his responsibility to represent Appellant diligently and
competently, regardless of the merits of Appellant’s claims. 6 Furthermore,
6
As noted by Appellant, if Attorney Graff believed Appellant’s issues were
without merit, he should have followed the procedure for withdrawing his
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Attorney Graff did not pursue an appeal on behalf of Appellant following the
dismissal of his March 5, 2014 petition. The effect of Attorney Graff’s
inaction is only compounded by Appellant’s unsuccessful attempt at pursuing
his appeal pro se.
Because Appellant effectively was denied his right to representation by
counsel in his first PCRA petition and the proper procedure was not followed
in determining whether Appellant waived his right to counsel,7 we vacate
both the PCRA court’s August 28, 2014 order denying Appellant’s August 20,
2014 motion and its June 26, 2014 order dismissing Appellant’s March 5,
2014 petition. We remand for the appointment of new counsel to provide
the representation to which Appellant is entitled under Pa.R.Crim.P. 904(c),
beginning with the filing of an amended PCRA petition or a no-merit letter
which satisfies all of the requirements of Turner and Finley. Should
Appellant indicate that he wishes to proceed pro se on his petition, the PCRA
representation pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc).
7
“[W]here an indigent, first-time PCRA petitioner was denied his right to
counsel—or failed to properly waive that right—this Court is required to raise
this error sua sponte and remand for the PCRA court to correct that
mistake.” Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super.
2011).
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court shall hold a proper hearing pursuant to Grazier to determine if such
waiver is voluntary, intelligent, and knowing.8
Orders vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2015
8
In light of our disposition above, we need not address Appellant’s
substantive issues.
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