J-S26004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NORMAN WILLIAMS, JR.
Appellant No. 452 MDA 2014
Appeal from the PCRA Order February 4, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0001173-2004
BEFORE: OTT, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 04, 2015
Norman Williams, Jr., appeals pro se from the order entered in the
Court of Common Pleas of Dauphin County, dated February 4, 2014,
dismissing his amended petition filed under the Post-Conviction Relief Act
(PCRA).1 Williams seeks relief from the judgment of sentence of life
imprisonment imposed on February 28, 2005, following his jury conviction of
second-degree murder and criminal conspiracy to commit murder.2 For the
reasons set forth below, we remand this case to the PCRA court for the
appointment of counsel.
____________________________________________
1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. §§ 2502(b) and 903, respectively.
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The procedural history of this case as reflected in the certified record
follows. On January 10, 2005, a jury convicted Williams of the above-stated
crimes. On February 28, 2005, the court sentenced Williams to a term of life
imprisonment without the possibility of parole for the murder conviction, and
a concurrent term of 12 to 24 years’ incarceration for the conspiracy crime.
A panel of this Court affirmed his judgment of sentence, and the
Pennsylvania Supreme Court denied his petition for allowance of appeal.
See Commonwealth v. Williams, 898 A.2d 1136 (Pa. Super. 2006)
(unpublished memorandum), appeal denied, 907 A.2d 1102 (Pa. 2006).
Williams filed a pro se PCRA petition on January 10, 2007. Counsel
was appointed, and filed an amended PCRA petition on April 3, 2007.
Counsel then filed a motion to withdraw as counsel on July 23, 2007.3 Three
days later, the court granted counsel’s motion, and issued notice of its intent
to dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907.
On August 24, 2007, after receiving no response from Williams, the PCRA
court dismissed his petition, and Williams filed a notice of appeal that was
docketed on September 27, 2007. On July 17, 2009, a panel of this Court
remanded the matter, finding the record did not allow the panel to
____________________________________________
3
Counsel did not file 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).
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definitively determine whether Williams had timely filed his notice of appeal.4
See Commonwealth v. Williams, 979 A.2d 838 (Pa. Super. 2009)
(unpublished memorandum). On remand, the PCRA court held a hearing on
September 2, 2009, and found Williams had filed a timely appeal.5
Nevertheless, on November 9, 2009, this Court vacated the July 26, 2007,
and August 24, 2007, orders, and remanded the matter, because we
determined counsel failed to satisfy the technical prerequisites of
Turner/Finley, and therefore, the PCRA court erred by granting counsel’s
request to withdraw. See Commonwealth v. Williams, 988 A.2d 732 (Pa.
Super. 2009) (unpublished memorandum).
On remand again, Williams filed a pro se motion for leave to amend his
original PCRA petition. In a December 9, 2010, order, the PCRA court
appointed new counsel and granted Williams leave to file a supplemental
petition. Williams, through counsel, then filed a supplemental PCRA petition
on July 7, 2011. On August 2, 2011, the PCRA court issued a Rule 907
notice of its intent to dismiss the petition without a hearing. During the
ensuing year, the court did not act on its Rule 907 notice. Williams filed a
____________________________________________
4
The record does not reveal why this Court’s response was delayed by
almost two years.
5
The court also issued a corresponding, supplemental opinion on
September 8, 2009.
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pro se PCRA petition on August 27, 2012, and pro se praecipe for entry of
judgment on November 29, 2013.
On February 4, 2014, the PCRA court entered two separate orders.6
The first order stated:
AND NOW, this 4th day of February, 2014, upon
consideration of [Williams]’s pro se petition filed pursuant to the
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541 et seq., on
August 27, 2012,
IT IS HEREBY ORDERED that the said petition is
DISMISSED WITHOUT PREJUDICE as it was filed while
petitioner’s prior PCRA petition filed July 7, 2011 was pending.
See Com v. Lark, 746 A.2d 585, 588 (Pa. 2000) (a subsequent
PCRA petition may not be considered while a previous petition is
still pending).
IT IS FURTHER ORDERED that [Williams]’s pro se
“Praecipe for Entry of Judgment” filed on November 29, 2013 is
therefore moot.
Order, 2/4/2014.
The second order provided, in relevant part:
AND NOW, this 4th day of February[,] 2014, upon
consideration of [Williams]’s supplemental PCRA petition filed
pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541
et seq. by court-appointed counsel on July 7, 2011, and the
applicable statutory and caselaw,
IT IS HEREBY ORDERED that the instant petition is
DISMISSED. [Williams] is hereby advised of his right to appeal
this Order to the Superior Court of Pennsylvania within thirty
(30) from the date of this Order.
____________________________________________
6
The orders were docketed and time-stamped two days later.
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Order, 2/4/2014. Williams filed a notice of appeal, which stated: “Notice is
hereby given that Norman Williams, Jr., above named defendant, hereby
appeals to the Superior Court of Pennsylvania from the order entered on
02/04/14 by the Honorable Judge Andrew H. Dowling dismissing petitioners
[sic] amended PCRA petition.” Notice of Appeal, 3/11/2014.7
Initially, we must determine whether the present appeal is timely. The
order from which Williams appeals was dated February 4, 2014, and
docketed two days later. Williams is incarcerated, and his notice of appeal
was docketed on March 11, 2014, which was well past the 30-day appeal
period. See Pa.R.A.P. 903(a) (“[T]he notice of appeal ... shall be filed within
30 days after the entry of the order from which the appeal is taken.”).
Generally, “[u]pon receipt of the notice of appeal the clerk shall immediately
stamp it with the date of receipt, and that date shall constitute the date
when the appeal was taken, which date shall be shown on the docket.”
Pa.R.A.P. 905(a)(3).
Under the “prisoner mailbox rule,” a pro se prisoner’s document is
deemed filed on the date he delivers it to prison authorities for mailing. See
generally, Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa. Super
2006). However, to avail oneself of the mailbox rule, a prisoner must supply
____________________________________________
7
On March 12, 2014, the PCRA court ordered Williams to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Williams filed a concise statement on March 26, 2014. The court did not file
an opinion pursuant to Pa.R.A.P. 1925(a).
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sufficient proof of the date of the mailing. See Commonwealth v. Jones,
700 A.2d 423 (Pa. 1997); Commonwealth v. Perez, 799 A.2d 848 (Pa.
Super. 2002) (documentation required to support when notice of appeal was
placed in the hands of prison authorities for filing).
Here, Williams dated the notice of appeal on February 21, 2014, and
on the document, there is a time-stamp from this Court stating that it was
received on February 28, 2014, well within the 30-day appeal period. Based
on the record, and applying the “prisoner mailbox rule,” we conclude that
Williams has provided sufficient proof that he filed a timely notice of appeal
on February 21, 2014. Therefore, his application for relief, filed March 27,
2014, is hereby granted.
Nevertheless, we are unable to address the merits of Williams’s appeal
based on the following. While we find the PCRA court acted properly in
dismissing without prejudice Williams’s pro se PCRA petition, filed on August
27, 2012, in its February 4, 2014, order, we agree with the court on
different grounds.8 Our review of the record indicates that Williams was
represented by counsel at that time.9 Therefore, this document was a legal
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8
As stated above, the court found that Williams’s prior, counseled PCRA
petition was pending and therefore, dismissed his subsequent pro se petition
pursuant to Lark, supra.
9
Specifically, we note counsel filed the July 7, 2011, PCRA petition, and
counsel was copied on the distribution list for the PCRA court’s August 2,
2011, Rule 907 notice, and the two February 4, 2014, orders.
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nullity, and the court did not err in dismissing the petition without prejudice.
See Commonwealth v. Leslie, 757 A.2d 984 (Pa. Super. 2000) (indicating
(1) PCRA court should have dismissed without prejudice defendant’s PCRA
petition because it was filed while her direct appeal was pending; and (2)
PCRA court erred by proceeding on the merits of the petition during the
pendency of the direct appeal); see also Commonwealth v. Nischan, 928
A.2d 349, 355 (Pa. Super. 2007) (citations omitted) (“Appellant had no right
to file a pro se motion because he was represented by counsel. This means
that his pro se post-sentence motion was a nullity, having no legal effect.”);
Commonwealth v. Hall, 476 A.2d 7, 9-10 (Pa. Super. 1984) (“[a]n
accused’s pro se actions have no legal effect while defense counsel remains
authorized to represent the accused in all aspects of the proceedings”)
(citation omitted).
However, since PCRA counsel’s appointment, and with the exception of
the July 7, 2011, petition, he appears to have done nothing to further his
client’s interests.10 Moreover, the record indicates he is still counsel of
____________________________________________
10
Additionally, our review of the record does not indicate whether the
August 27, 2012, pro se PCRA petition was forwarded by the clerk of courts
to Williams’s counsel of record pursuant to Pennsylvania Rule of Criminal
Procedure 576(a)(4) (“In any case in which a defendant is represented by an
attorney, if the defendant submits for filing a written motion, notice, or
document that has not been signed by the defendant’s attorney, the clerk of
courts shall accept it for filing, time stamp it with the date of receipt and
make a docket entry reflecting the date of receipt, and place the document
in the criminal case file. A copy of the time stamped document shall be
(Footnote Continued Next Page)
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record, and has not filed a petition to withdraw or been granted leave to
withdraw by another manner. It merits mention that this is still technically
Williams’s first attempt at post-conviction relief. As such, we are guided by
the following:
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, 998-999 (Pa. Super. 2003)
(citations, quotation, quotation marks omitted.
In addressing the petitioner’s right to counsel under the
precursor to the PCRA, we admonished that when appointed
counsel fails to amend an inarticulately drafted pro se [post-
conviction] petition, or fails otherwise to participate
meaningfully, this court will conclude that the proceedings were,
for all practical purposes, uncounselled and in violation of the
representation requirement[.]
Commonwealth v. Hampton, 718 A.2d 1250, 1253 (Pa. Super. 1998)
(citations, quotation, quotation marks omitted). See also Commonwealth
v. Kutnyk, 781 A.2d 1259, 1262 (Pa. Super. 2001) (the petitioner was
“entitled to counsel to represent him despite any apparent untimeliness of
the petition or the apparent non-cognizability of the claims presented”).
_______________________
(Footnote Continued)
forwarded to the defendant’s attorney and the attorney for the
Commonwealth within 10 days of receipt.”).
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It is evident that Williams would like to appeal the dismissal of his
PCRA petition but we cannot discern from his pro se notice of appeal exactly
which one of the February 4, 2014, orders he takes issue with as he merely
states he is appealing the order dismissing his “amended” petition. See
Notice of Appeal, 3/11/2014. The Commonwealth argues Williams is
appealing from the order that dismissed his pro se PCRA petition, which
would result in a quashal. See Commonwealth’s Brief at 6-8. However,
because that it is not clear from Williams’s notice of appeal, we are not
persuaded by that contention.
Accordingly, we are constrained to conclude Williams was not afforded
the right to counsel with respect to his first PCRA petition as his counsel was
neglectful in taking any further action before or after the February dismissal.
See Hampton, 718 A.2d at 1253 (“counsel’s inaction deprived the petitioner
the opportunity of legally trained counsel to advance his position in
acceptable legal terms”).
Therefore, we direct the PCRA court to appoint new counsel11 and
within 60 days of the date of the filing of this memorandum, counsel is to:
(1) review Williams’s counseled, supplemental PCRA petition that was filed
on July 7, 2011, and dismissed by the court on February 4, 2014; and (2)
file either an advocate’s brief or an application to withdraw and “no-merit”
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11
See Brown, 836 A.2d at 999.
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letter consistent with the dictates of Turner/Finley, including a letter, which
notifies Williams of the petition to withdraw and advises him of his appeal
rights.
Williams and the Commonwealth will then each have 30 days in which
to file a response, if either so desires. We also direct the PCRA court to file a
supplemental trial court opinion addressing these matters within 30 days
thereafter.
The Prothonotary of this Court is directed to remand the certified
record to the PCRA court.
Case remanded for proceedings consistent with this memorandum.
Application for relief granted. Panel jurisdiction retained.
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