Com. v. Future, J.

J-S67008-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JEFFREY G. FUTURE,

Appellant No. 415 MDA 2015

Appeal from the PCRA Order February 3, 2015
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0002423-2009

BEFORE: BOWES, PANELLA, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED JANUARY 11, 2016

Jeffrey G. Future appeals from the order entered February 3, 2015, in

which the PCRA court granted in part and denied in part his PCRA petition.

Specifically, the PCRA court awarded Appellant the right to appeal nunc pro

tunc from the denial of his original PCRA petition which it had denied by

order on June 7, 2013, and denied his remaining claims as untimely. After

careful review, we affirm.

On July 30, 2009, Pennsylvania State Police responded to a report of

an individual having been shot numerous times who was in the center of a

rural roadway, Ransom Road, Lackawanna County. A witness at the scene

told police that she saw a sport utility vehicle flee at a high rate of speed

upon her approach. The victim, Allen Fernandez, was pronounced dead at

*
Retired Senior Judge assigned to the Superior Court.
J-S67008-15

the scene. A subsequent autopsy revealed that he had been shot twelve

times. Through their investigation, police learned of the possible

involvement of Appellant’s brother, Tonie Future. Thereafter, in an interview

with Pennsylvania State Police, Appellant admitted to taking part in the

murder of Mr. Fernandez. Appellant admitted that he used his mother’s

green Jeep Grand Cherokee to transport the victim to the location where the

victim was shot. Police also learned that another male, Christian Kenyon,

was involved in the shooting. Appellant, his brother, and Kenyon each fired

a weapon at the victim and police located the weapons with the aid of

Kenyon. According to a statement by Appellant, they murdered Mr.

Fernandez at the behest of another member of the Bloods street gang. Mr.

Fernandez was also a member of that gang.

Appellant pled guilty to first-degree murder on January 19, 2010.

Initially, Appellant expressed reluctance at entering his plea and set forth

that he desired to proceed to a trial. The court noted that it had previously

given Appellant approximately a month to consider the Commonwealth’s

plea offer and that Appellant was free to change his mind regarding entering

a plea, but it would not accept a guilty plea if he elected not to enter a plea

that day. The court expressed frustration at Appellant manipulating the

court and sheriff’s office, since on a prior occasion he had decided not to

enter an agreed-upon plea. Nonetheless, the court explained that it had

been comfortable giving Appellant five weeks to consider the plea offer. It

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then asked Appellant if he had enough time to review his own inculpatory

statements and other documents with his attorney. The court indicated that

it wanted “to make sure you are not doing this because you feel somehow

you are not adequately informed. You had enough time to meet with

counsel? You had enough time to review the evidence [in] this case?” N.T.,

1/19/10, at 5.

After Appellant stated that he needed more time to consult with his

attorney, the court took a recess and permitted Appellant to review the

matter with his counsel for an additional two hours. Counsel also placed on

the record that he had reviewed Appellant’s statements with him for a total

of three hours during two earlier prison visits.

Following his consultation with counsel, Appellant agreed to enter his

plea. Before doing so, both his attorney and the court colloquied him.

Appellant’s attorney queried Appellant as follows.

Attorney: Last time we were here it was about two hours ago.
Since then, we have had time to discuss your case and answer
any question that you had in a cell down in the basement, right?

Appellant: Yes.

Attorney: Did I answer any questions or any concerns that you
had?

Appellant: Yes.

Attorney: Were you able to review any documents that you
wanted to review?

Appellant: Yes.

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Attorney: You basically reviewed a couple of the documents, but
did I discuss with you that I thought this was probably in your
best interest - - not probably, but this is in your best interested
[sic] to plead guilty?

Appellant: Yes.

Attorney: Did I threaten you or coerce you or cause you to
make this plea?

Appellant: No.

Attorney: Are you doing this of your own free will?

Appellant: Yes.

N.T., 1/19/10, at 13-14. Thereafter, the plea court conducted its own

colloquy and reviewed a written guilty plea colloquy that Appellant had

reviewed and initialed. The court explained that Appellant had an absolute

right to a jury trial and by pleading guilty he would be giving up certain

rights. It pointed out that he was presumed innocent and the burden of

proof at trial rested on the Commonwealth. The court explained the concept

of reasonable doubt and that the prosecution would have to establish each

element of the charges beyond a reasonable doubt and that the jury’s

verdict must be unanimous.

In addition, the court informed Appellant that he had the right to

present his own witnesses as well as cross-examine any Commonwealth

witnesses, but he was not required to testify or present a defense. The

court also set forth the manner in which a jury would be selected, noting

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that the matter was a death penalty case. At that time, however, the

Commonwealth had not provided notice of any aggravating circumstances

and apparently, plea counsel was not “death qualified” to try the matter.

The court further discussed Appellant’s right to litigate pre-trial

motions and that, by pleading guilty, any issues he could litigate on appeal

would be limited. Since Appellant had been on parole at the time of his

commission of the crime herein, the court also explained that by pleading

guilty he was admitting to violating his parole and that he could be

sentenced to complete his parole sentence. The court also defined first-

degree murder and asked Appellant to repeat the definition to demonstrate

that he understood. With respect to the actual plea agreement, the court

set forth that the Commonwealth was agreeing to “abandon any efforts to

get the death penalty. In addition to that they have agreed that your

brother would also not face the death penalty if he agrees to enter a plea of

guilty.” Id. at 33.

The court continued by placing on the record that the Commonwealth

also had agreed to make efforts to place Appellant in federal custody for

protective reasons and not state prison.1 The Commonwealth indicated on

the record that it agreed with the court’s recitation of the agreement.

____________________________________________

1
The record contains subsequent filings in which the Commonwealth
indicated that Appellant had elected not to cooperate with federal
(Footnote Continued Next Page)

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Appellant submitted again that he had not been threatened to enter

the plea and that he was freely and voluntarily pleading guilty. He also

acknowledged the maximum penalty and fine, and that he faced a

mandatory sentence of life imprisonment without parole. The court then

recited the underlying fact that Appellant, with specific intent, shot and killed

Allen Fernandez. Appellant admitted to the crime.

The court accepted Appellant’s plea, placing on the record that it

reviewed a presentence investigative report and that it had no discretion to

sentence Appellant to anything other than life imprisonment without parole,

but felt that such a sentence was appropriate. Appellant apologized to the

victim’s family, accepted full responsibility, and offered advice to parents to

prevent their kids from falling for the “psychological trickery” of the gang

lifestyle. N.T., 1/19/10, at 45. The court then sentenced Appellant to life

imprisonment without parole and explained his appellate rights.

Appellant did not file a direct appeal, but filed a timely pro se PCRA

petition, which was docketed on November 10, 2010. Therein, Appellant

averred that plea counsel was ineffective for not advising him that he could

not represent Appellant in a capital trial and that plea counsel’s younger

_______________________
(Footnote Continued)

investigators and that he should be moved to state prison. Appellant
testified at his PCRA hearing that cooperation with federal authorities was
not part of the plea agreement, and the record of the plea hearing supports
his position.

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brother was the police chief of the Scranton City police, which he posited

was the arresting agency in this matter. Appellant also alleged counsel was

ineffective for not litigating a suppression motion or filing a direct appeal.

The court appointed PCRA counsel on January 12, 2011. Initial PCRA

counsel submitted a Turner/Finley2 no-merit letter and petition to

withdraw.3 That letter addressed each of Appellant’s claims. The

Commonwealth also filed a response to Appellant’s pro se petition.4 Therein,

the Commonwealth averred that counsel was not required to be death

qualified because it had not filed notice of aggravating circumstances, the

Pennsylvania State Police was the arresting agency, and Appellant knowingly

waived the right to file pre-trial motions. The Commonwealth also

____________________________________________

2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
3
The no-merit letter is dated April 8, 2011, but was not docketed until
September 18, 2015, well after original PCRA counsel was permitted to
withdraw. Thus, it appears that counsel improperly did not
contemporaneously file with the PCRA court the no-merit letter and petition
to withdraw. See Commonwealth v. Willis, 29 A.3d 393 (Pa.Super. 2011)
(noting that submitting to the court but not filing a no-merit letter was
improper). However, Appellant received the no-merit letter and petition to
withdraw as in subsequent filings he acknowledged the April 8, 2011 no-
merit letter.
4
The Commonwealth filed its answer before Appellant’s counsel submitted
his no-merit letter and erroneously labeled it as an answer to an amended
petition.

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erroneously maintained that Appellant’s allegation that counsel failed to file

a direct appeal was not cognizable under the PCRA.

The PCRA court failed to issue Pa.R.Crim.P. 907 notice of intent to

dismiss or issue a final order. However, in an order dated April 11, 2011, it

permitted counsel to withdraw.5 On May 18, 2011, Appellant filed a

document seeking his transcripts and other docket entries, maintaining that

he could not adequately respond to counsel’s no-merit letter, and asking the

court to reconsider its order permitting counsel to withdraw. The court, on

October 26, 2011, directed the clerk of courts to provide Appellant with

those documents, which it did on the following day. Subsequently, on

January 31, 2013, Appellant filed a document entitled, “Petition for the

Court[’]s Assistance.” Therein, he pointed out that he had not received a

final order denying or granting his petition. Appellant also noted that the

Commonwealth had filed a response to his petition, setting forth that

counsel was not required to be death qualified. Appellant argued, however,

that the Commonwealth agreed not to seek the death penalty in exchange

for his plea and that the plea court had placed on the record that he was

facing the death penalty on multiple occasions.

In response, the PCRA court appointed new PCRA counsel,

Christopher Osborne, Esquire, on February 6, 2013. Attorney Osborne filed
____________________________________________

5
The order was filed on April 12, 2011.

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a Turner/Finley no-merit letter and petition to withdraw on June 4, 2013.

PCRA counsel re-addressed the issues Appellant leveled in his pro se

petition, except for his claim relative to seeking a direct appeal. Counsel

also averred that the issues were adequately addressed in the prior no-merit

letter. The PCRA court again failed to file a Rule 907 notice of dismissal and

instead, on June 7, 2013, granted second PCRA counsel’s petition to

withdraw and denied Appellant’s petition without a hearing. That final

order neglected to inform Appellant of his appellate rights nor does the

record reflect that the order was sent by certified mail per the rules of

criminal procedure.

Subsequently, on September 20, 2013, Appellant filed an additional

PCRA petition. That petition alleged that the Commonwealth unlawfully

induced him to plead guilty and breached his plea agreement by not having

him housed in a federal penitentiary. He also claimed that his plea was

involuntary because the Commonwealth threatened his brother with the

death penalty if Appellant did not plead guilty. Also, Appellant alleged that

his plea was unlawful because the Commonwealth and his plea counsel

indicated that he could face the death penalty when that was untrue.

Appellant also submitted for the first time that plea counsel was ineffective

in his pre-trial investigations, that the guilty plea colloquy was defective, and

that he was factually innocent because Christian Kenyon admitted killing the

victim.

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On October 10, 2013, the PCRA court again appointed counsel.

Counsel filed an amended petition on February 7, 2014, which alleged that

counsel was ineffective in advising Appellant that he would avoid the death

penalty by pleading guilty where the Commonwealth had not filed a notice of

aggravating circumstances pursuant to Pa.R.Crim.P. 802. Additionally,

Appellant argued that his plea was unlawfully induced where the

Commonwealth failed to make efforts to have him housed in a federal

prison. Lastly, Appellant contended that he was entitled to the nunc pro

tunc reinstatement of his PCRA appellate rights, relative to the June 7, 2013

order, because he did not receive copies of the second no-merit letter and

petition to withdraw or the final order.

The Commonwealth filed an answer, and the PCRA court conducted

evidentiary hearings on May 29, 2014 and August 29, 2014. At the

conclusion of the hearings, the court agreed that Appellant was entitled to

reinstatement of his PCRA appellate rights because he did not receive a copy

of the order denying his first PCRA petition, but denied his remaining claims

as untimely. This appeal ensued. The PCRA court indicated that the reasons

for its decision could be found in its memorandum decision in support of its

final order. The matter is now ready for this Court’s consideration.

Appellant presents the following issues for our review.

A. Whether the Appellant’s statutory and/or due process rights
were violated by dismissal of his pro se Petition for Post
Conviction Relief without a hearing since Appellant did not

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receive notice of either the Motion to Withdraw as Counsel,
the “no-merit” letter, or his right to proceed pro se prior to
dismissal, and genuine issues of material fact existed?

B. Whether it was an error of law for the PCRA court to dismiss
Appellant’s pro se Petition for Post Conviction Relief since all
issues raised in Appellant’s pro se Petition were not addressed
and/or properly addressed in PCRA counsel’s “no-merit”
letter?

C. Whether the PCRA court violated paragraph one (1) of
Pa.R.Crim.P. 907 by summarily dismissing Appellant’s pro se
Petition for Post Conviction Relief prior to conducting its own
independent review of the record, without giving Appellant
notice of its intention to dismiss, and without giving Appellant
an opportunity to respond prior to dismissal?

D. Whether the PCRA court committed an error of law by
dismissing Appellant’s pro se Petition for Post Conviction
Relief since trial counsel provided ineffective assistance at the
guilty plea proceedings by giving advice that was not within
the range of competence demanded of attorneys in criminal
cases?

E. Whether Appellant’s guilty plea was unlawfully induced since
it was given to avoid the death penalty even though at the
time the guilty plea was entered the death penalty was not
applicable at the time?

F. Whether Appellant’s guilty plea was unlawfully induced since
trial counsel was not death penalty certified and/or because
the Commonwealth failed to provide notice of aggravating
circumstances as required by law?

G. Whether the PCRA Court committed an error of law in denying
the arguments made in Appellant’s Nunc Pro Tunc Petition for
Post Conviction Relief as untimely since Appellant’s original
Petition for Post Conviction Relief was denied without a
hearing, notice, an opportunity to respond, or an opportunity
to proceed pro se or with new counsel as required by law?

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H. Whether the trial court committed an error of law in denying
the claims made in Appellant’s Nunc Pro Tunc Petition for Post
Conviction Relief as being without merit?

I. Whether the Commonwealth violated the terms of the plea
agreement by failing to give its best efforts to house
Appellant in a federal penitentiary and Appellant is entitled to
the benefit of the bargain as a result?

Appellant’s brief at 4-5.

Due to the PCRA court’s myriad of failures to adhere to the rules of

criminal procedure, this case has been unnecessarily complicated.

Accordingly, at the outset we must address the timeliness of Appellant’s

reinstated PCRA appellate rights. Should that reinstatement be timely and

Appellant be entitled to relief based on his original claims, it would obviate

any need to consider the timeliness of his additional claims advanced in his

most recent petition.

A petitioner’s request for the reinstatement of his PCRA appellate

rights nunc pro tunc must be timely filed. Commonwealth v. Fairiror, 809

A.2d 396 (Pa.Super. 2002). An untimely PCRA petition renders Pennsylvania

courts without jurisdiction to afford relief. Commonwealth v. Taylor, 65

A.3d 462, 468 (Pa.Super. 2013). “The question of whether a petition is

timely raises a question of law. Where the petitioner raises questions of law,

our standard of review is de novo and our scope of review plenary.” Id.

(citations omitted).

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The PCRA provides that all PCRA petitions must be filed within one

year of the date on which judgment of sentence became final, unless one of

the statutory exceptions set forth in 42 Pa.C.S. § 9545(b)(1) applies.

Judgment of sentence is final upon the completion of direct review. 42

Pa.C.S. § 9545(b)(3). Since Appellant did not file a direct appeal, his

judgment of sentence was final thirty days from his sentencing, which was

February 18, 2010. Thus, Appellant had until February 18, 2011, to file a

facially timely PCRA petition. Appellant filed the underlying petition on

September 20, 2013. Hence, Appellant could only file a timely petition by

asserting one of three timeliness exceptions. Those exceptions include

interference by government officials, newly-discovered facts that were

unknown to the petitioner and which could not have been ascertained with

due diligence, or a new constitutional right held to apply retroactively. 42

Pa.C.S. §§ 9545(b)(1)(i)-(iii). Any claim arguing an exception to the time-

bar must be filed within sixty days of the date it could have been first

presented. 42 Pa.C.S. § 9545(b)(2).

In his amended petition, Appellant alleged that his PCRA appellate

rights should be reinstated because he did not receive notice of the trial

court’s final order. The Commonwealth agreed that Appellant was entitled to

reinstatement of his appellate rights and the PCRA court made a factual

finding that Appellant did not receive the final order in this case. In

addition, Attorney Osborne does not appear to have served a copy of his no-

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merit letter on Appellant and his petition to withdraw did not indicate that he

provided Appellant with a copy. More importantly, the PCRA court’s failure

to provide both notice of intent to dismiss as well as send Appellant its final

order by certified mail resulted in governmental interference with the ability

of Appellant to raise his claims on appeal. Appellant filed the within petition

three months from the denial of his original petition and the Commonwealth

does not dispute his diligence. Appellant also noted in his pro se petition

that he had attempted to correspond with his prior attorneys regarding his

PCRA matter and received no response. The Commonwealth conceded that

second PCRA counsel neglected to notify Appellant of the PCRA court’s final

order.

Since the Commonwealth stipulated that Appellant was entitled to

reinstatement of his PCRA appellate rights based on his failing to receive

notice of the final order, there was no disputed issue of material fact relative

to Appellant’s due diligence. Therefore, we agree that the PCRA court

properly restored Appellant’s right to appeal from the denial of his original

PCRA petition. In Appellant’s original PCRA matter, i.e., those documents

filed before the June 7, 2013 order, he alleged that plea counsel was

ineffective for not advising him that he could not represent Appellant in a

capital trial or that the matter was not a capital case, that a conflict of

interest existed because plea counsel’s brother was the police chief of the

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Scranton City police, and that counsel was ineffective for not litigating a

suppression motion or filing a direct appeal.

In this appeal, Appellant has abandoned all but his position relative to

the case being a death penalty matter. Thus, we need not address the

additional issues not argued or preserved in this appeal. Appellant’s issues

D-F relate to the claim preserved in his initial PCRA proceeding and he

argues those issues together. Before examining those claims, we address

Appellant’s first three issues leveled in his brief. Those issues relate to the

procedural quagmire created by both the PCRA court and Appellant’s second

PCRA attorney.

Appellant’s initial claim is that his statutory and due process rights

were violated by the PCRA court’s dismissal of his original PCRA petition

where he did not receive his second PCRA attorney’s petition to withdraw or

no-merit letter, and he was not notified of his right to proceed pro se.

Appellant maintains that because his original petition raised genuine issues

of material fact, his case should be remanded. His second and third issues

are also interrelated to his first claim. We address these arguments

together.

Appellant argues that because Attorney Osborne did not provide him

with a copy of his no-merit letter or petition to withdraw nor did the latter

document include a statement that Appellant had the right to proceed pro se

or with new counsel if Attorney Osborne was permitted to withdraw, Mr.

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Osborne failed to satisfy the Turner/Finley requirements and the court

erred in allowing him to withdraw.6 Appellant also highlights that Attorney

Osborne’s no-merit letter was filed on June 4, 2013, and the PCRA court

dismissed his petition on June 7, 2013. He points out that the court did not

provide notice of dismissal and issued its final order before twenty days

elapsed from permitting counsel to withdraw. Hence, he maintains that

even if he would have received the Turner/Finley no-merit letter, he had

no opportunity to respond.

Further, Appellant posits that Attorney Osborne was ineffective and did

not comply with the substantive dictates of Turner/Finley because he did

not address the individual claims Appellant raised. Specifically, Appellant

asserts that Mr. Osborne did not discuss plea counsel’s alleged

ineffectiveness in not informing him that sufficient mitigating circumstances

existed to avoid the death penalty. Appellant adds that counsel did not

address the issue that plea counsel was not death-penalty qualified. In sum,

Appellant maintains that since Attorney Osborne did not follow the

procedures of Turner/Finley, the PCRA court erred in permitting counsel to

____________________________________________

6 “
[W]e note that Appellant's claim that the PCRA court erred as a matter of
law in permitting counsel to withdraw, although necessarily discussing PCRA
counsel's alleged ineffectiveness, is not an ineffectiveness claim.”
Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa.Super. 2012).

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withdraw and his case should be remanded to allow him to object to the

dismissal of his original petition.

Appellant’s second and third issues reiterate that the PCRA court erred

in not providing Rule 907 notice. In addition, he submits that the PCRA

court’s June 7, 2013 order indicates that it reviewed the two separate

Turner/Finley no-merit letters but does not set forth that the court

independently reviewed the entire record. Appellant maintains that had the

PCRA court conducted an independent review, it would have learned that the

no-merit letters did not address each of his claims. He also asserts that the

court would have found that he presented claims of arguable merit.

The Commonwealth responds that Attorney Osborne’s no-merit letter

set forth that he sent Appellant a copy of his petition to withdraw and

Turner/Finley letter. It further notes that it averred in an answer that

Attorney Osborne had represented that his records indicated that he

informed Appellant via mail that he filed a petition to withdraw and

Turner/Finley no-merit letter.7 More critically, the Commonwealth submits

that Appellant’s request for a remand is moot, as any errors were corrected

because he was permitted to raise his objections and the issues he wished to

litigate in his nunc pro tunc petition.
____________________________________________

7
Appellant rebutted this position below by attaching an exhibit from the
Pennsylvania Department of Corrections relative to the mail he received
between June 1, 2013 and January 8, 2014.

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Initially, and in light of the unusual procedural history of this matter,

we must address whether these arguments are properly before us.

Ordinarily, issues must be timely raised in a petition to preserve them. See

42 Pa.C.S. § 9544(b) ("For purposes of this subchapter, an issue is waived if

the petitioner could have raised but failed to do so before trial, at trial,

during unitary review, on appeal or in a prior state postconviction

proceeding."); see also 42 Pa.C.S. § 9545(b)(1) (petition must be filed

within one year of finality of judgment of sentence unless claims meet a

timeliness exception). The PCRA time-bar exceptions are claim specific.

See 42 Pa.C.S. § 9545(b)(1)-(2).

Since Appellant averred that the PCRA court both failed to provide him

notice of intent to dismiss and did not properly serve on him its final order,

which itself was defective, we find these claims fit within the governmental

interference exception. Moreover, we have previously determined that there

was no disputed issue of material fact regarding whether he exercised due

diligence in forwarding his related position regarding reinstatement of his

appellate rights.

Next, we must consider if these claims were adequately preserved.

Certain claims, such as PCRA court error, necessarily cannot be raised in an

original petition and do not fall within the PCRA waiver provision. See id.

(setting forth that an issue is waived if it could have been raised in a prior

post-conviction proceeding); cf. Commonwealth v. Rykard, 55 A.3d

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1177, 1188 (Pa.Super. 2012) (“It would be logically impossible for Appellant

to have argued the ineffective assistance of his post-conviction attorney in

his pro se petition as he had not yet been appointed PCRA counsel.”). Since

the PCRA court did not issue Rule 907 notice in this matter nor did it

properly serve Appellant its final order, Appellant was not afforded an

opportunity to raise these issues in his initial PCRA proceeding. Hence, we

decline to find waiver on the basis that they were not raised in his initial

PCRA proceeding.

As discussed, Appellant in his nunc pro tunc petition set forth that he

was not provided a copy of the order denying his petition nor was he

properly advised of his appellate rights. He reiterated that position in a brief

in support of his petition. Further, in a joint filing by Appellant and the

Commonwealth, Appellant argued that the PCRA court had jurisdiction over

his claims because Attorney Osborne failed to comply with Turner/Finley

by not providing him with his petition to withdraw or informing him of his

right to proceed pro se. We find these arguments adequately preserved his

claims of PCRA court error with respect to the manner in which it handled

Attorney Osborne’s petition to withdraw and no-merit letter. Thus, we

proceed to the merits.

Appellant is correct that the PCRA court erred in its initial handling of

his pro se petition and both Turner/Finley counsels’ no-merit letters. The

PCRA court failed to provide Rule 907 notice and issued a final order without

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affording Appellant an opportunity to respond to the second no-merit letter.

This is especially problematic post-Commonwealth v. Pitts, 981 A.2d 875

(Pa. 2009), which requires petitioners to raise issues relative to

Turner/Finley counsel’s representation in response to a Rule 907 notice.

Further, the PCRA court’s final order was not sent by certified mail and

neglected to include information regarding Appellant’s appellate rights. See

Pa.R.Crim.P. 908. Also, Attorney Osborne’s no-merit letter did not address

Appellant’s claim that he had been denied a requested direct appeal.

Although Appellant has abandoned that underlying claim, it is evident that

the PCRA court did not adequately conduct an independent review.

Nonetheless, despite these errors, the Commonwealth is correct that

Appellant’s request for a remand is moot. The PCRA court remedied its

earlier errors by appointing current PCRA counsel and conducting an

evidentiary hearing on the merits of Appellant’s claims. At the outset of the

PCRA hearing, the court expressly set forth that it was going to allow

counsel to make a record for Appellant’s issues. N.T., 5/29/14, at 6.

Accordingly, it is unnecessary to remand this matter to allow Appellant yet

another opportunity to pursue his underlying claims.

Having considered Appellant’s first three issues, we now proceed to

examine the substance of his main contention raised in his pro se filings

prior to the June 7, 2013 final order, i.e., those arguments falling within the

reinstatement of his PCRA appellate rights. In examining these claims, we

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consider the record “in the light most favorable to the prevailing party at the

PCRA level.” Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014)

(en banc). In performing this review, we consider the evidence of record

and the factual findings of the PCRA court. Id. We afford “great deference

to the factual findings of the PCRA court and will not disturb those findings

unless they have no support in the record.” Id. Accordingly, so long as a

PCRA court’s ruling is free of legal error and is supported by record evidence,

we will not disturb its decision. Id.

Appellant forwards his argument as to issues D through F together.

Those issues all relate to the effectiveness of plea counsel as it pertains to

advising Appellant to plead guilty to avoid the death penalty. “To plead and

prove ineffective assistance of counsel a petitioner must establish: (1) that

the underlying issue has arguable merit; (2) counsel's actions lacked an

objective reasonable basis; and (3) actual prejudice resulted from counsel's

act or failure to act.” Commonwealth v. Stewart, 84 A.3d 701, 706

(Pa.Super. 2013) (en banc). The failure to meet any of these aspects of the

ineffectiveness test results in the claim failing. Id.

A claim has arguable merit where the factual predicate is accurate and

“could establish cause for relief.” Id. at 707. A determination as to

whether the facts asserted present a claim of arguable merit is a legal one.

Id. In considering whether counsel acted reasonably, we do not use a

hindsight analysis; rather, an attorney’s decision is considered reasonable if

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it effectuated his client’s interests. Id. Only where “no competent counsel

would have chosen that action or inaction, or, the alternative, not chosen,

offered a significantly greater potential chance of success[,]” will counsel’s

strategy be considered unreasonable. Id. Finally, actual prejudice exists if

“there is a reasonable probability that, but for counsel's errors, the result of

the proceeding would have been different.” Id. It is presumed that counsel

renders effective representation.

Where a petitioner alleges that guilty plea counsel was ineffective, he

must demonstrate that absent counsel’s incorrect advice or failure to advise,

there is a reasonable probability he would have not have pled guilty and

would have proceeded to trial, Commonwealth v. Barndt, 74 A.3d 185

(Pa.Super. 2013), or, not relevant here, accepted a plea offer. In examining

whether such prejudice exists in the context of a guilty plea, we look to

whether the plea is knowing, intelligent, and voluntary. Commonwealth v.

Anderson, 995 A.2d 1184, 1192 (Pa.Super. 2010) (“Allegations of

ineffectiveness in connection with the entry of a guilty plea will serve as a

basis for relief only if the ineffectiveness caused the defendant to enter an

involuntary or unknowing plea.”); Commonwealth v. Bedell, 954 A.2d

1209, 1212 (Pa.Super. 2008). In determining whether a plea was knowing,

intelligent, and voluntary, we consider the totality of the circumstances.

Commonwealth v. Allen, 732 A.2d 582, 587 (Pa. 1999); id. at 589.

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Appellant begins by arguing that plea counsel “provided ineffective

assistance by advising Appellant to plead guilty to avoid the death penalty

when the death penalty was not applicable at the time of the plea since no

Rule 802 notice of aggravating circumstances was provided.” Appellant’s

brief at 20. He continues that under Rule 802, the Commonwealth must

provide notice of the aggravating circumstances at or before arraignment

unless good cause is shown. Appellant asserts that late notice or the

absence of notice “is not to be condoned because it is prejudicial to a

defendant in preparing a defense.” Id. at 21 (citing Commonwealth v.

Edward, 903 A.2d 1139, 1162 (Pa. 2006)).

Appellant acknowledges that a defendant may have constructive notice

of the aggravating circumstances triggering a possible death verdict.

However, he contends that, in this case, the aggravating factors were not

apparent from the charges themselves and therefore there was no

constructive notice. Specifically, he submits that he was not charged with

kidnapping and the affidavit of probable cause and criminal information do

not provide that it was a murder-for-hire killing.

Additionally, he notes that plea counsel was not death penalty qualified

under Pa.R.Crim.P. 801. In this regard, he submits that Rule 801 is

designed to provide competent counsel at every stage of a death penalty

case, which includes pre-trial proceedings. Appellant points out that there

was no plea agreement before arraignment. Thus, he argues that plea

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counsel was incorrect in advising him to plead guilty to avoid the death

penalty since the case was not a death penalty matter.

In support, Appellant relies primarily on Commonwealth v. Wesley,

753 A.2d 204 (Pa. 2000), and Commonwealth v. Williams, 650 A.2d 420

(Pa. 1994). In Wesley, the defendant was afforded a new capital

sentencing hearing. Therein, the defendant had entered the apartment of

the victim, bound her, raped and sodomized her, cut her with various knives

and a meat cleaver before striking her multiple times in the head with a

baseball bat causing her death. After killing the victim, the defendant stole

her purse and car and attempted to withdraw money from her account. The

Commonwealth charged Wesley with homicide and one count each of rape,

robbery, burglary, and theft.

Under the then-applicable rule regarding notice of aggravating

circumstances, the Commonwealth failed to provide notice of torture as an

aggravating factor until the last day of the guilt phase of the trial. Four days

earlier, however, the Commonwealth had informed the defendant that it

intended to pursue the torture aggravator. In addition, the trial court

determined that the Commonwealth had told defense counsel two months

before trial that torture was a potential aggravating circumstance.

The Wesley Court held that, “The consequence of the prosecution's

failure to file notice of torture until after the jury had rendered a verdict of

guilt was that Wesley's penalty stage counsel was woefully unprepared to

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defend against that aggravating circumstance at sentencing.” Wesley,

supra at 214.

The Court in Wesley relied in part on Williams, supra. In Williams,

the victim was beaten and stabbed to death. The defendant had a history of

violent felony convictions, which was one of three aggravating circumstances

the jury found in imposing a death verdict. The defendant argued that the

trial court erred in permitting the prosecution to use evidence of his prior

felony convictions as an aggravator because he had not been provided notice

that it intended to pursue that aggravating circumstance. The Williams

Court found that, because the defendant’s prior criminal history should have

been known before his arraignment and was easily available, the

prosecution’s failure to provide adequate notice warranted preclusion of that

evidence during the sentencing phase of the defendant’s trial.

Appellant posits that these cases establish that the Commonwealth

could not provide notice of aggravating circumstances at any time. Since

the Commonwealth knew of the potential aggravators at the time of

arraignment, he asserts that it had to provide notice at that time or be

precluded from pursuing the death penalty. Alternatively, he argues that

since the PCRA court found, and the Commonwealth argued, that non-

certified death penalty counsel was permissible, the PCRA court’s finding

that the matter could have transformed into a capital case would have

deprived him of having competent counsel at all stages of his criminal

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proceeding. He reasons that, if the matter could have been or was a death

penalty case, he was entitled to death penalty counsel from the outset and

that the failure to provide him with such counsel resulted in an unknowing

and involuntary plea because his attorney lacked the necessary qualifications

to properly advise him.

The Commonwealth responds that plea counsel’s advice “was sound

because had Appellant not pled guilty, the Commonwealth would have

pursued the death penalty as Appellant proceeded to trial.”

Commonwealth’s brief at 12. It points out that the plea court explicitly

stated that part of the agreement was that the Commonwealth “will abandon

the efforts to get the death penalty.” N.T., 1/19/10, at 33. The

Commonwealth asserts that during the PCRA hearings, the district attorney

testified that the parties had engaged in months of discussion over a

potential plea and that Appellant knew that the Commonwealth would seek

the death penalty if he did not enter a plea.

With respect to Appellant’s position that Rule 802 precluded it from

seeking the death penalty, the Commonwealth argues that the rule is

intended to permit counsel an adequate opportunity to prepare for the

sentencing phase of a capital case. Since Appellant was negotiating a plea

to avoid such a sentencing hearing, the Commonwealth contends that it did

not need to file Rule 802 notice at that time. In the alternative, the

Commonwealth avers that Appellant had constructive notice of the

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aggravating factors since Appellant and his co-defendants transported the

victim a substantial distance before executing him, i.e., committed a murder

in the perpetration of a felony. It also contends that since the evidence

showed that it was a murder-for-hire situation, an additional aggravating

circumstance existed. According to the Commonwealth, the affidavit of

probable cause and thousands of pages of discovery demonstrated these

aggravating facts.

The Commonwealth further maintains that Appellant suffered no

prejudice by its failure to serve Rule 802 notice of aggravating

circumstances and that the cases he relies on did not involve guilty pleas.

As it relates to prejudice, the Commonwealth argues that he was not unfairly

surprised by the lack of notice because he pled guilty and, had he rejected

the plea offer, he would have been afforded sufficient time to prepare.

Lastly, it rejects Appellant’s assertion that he was entitled to death penalty

counsel from the outset since it had not filed notice that it was going to seek

the death penalty. It posits that had Appellant rejected the plea offer, then

the court would have needed to appoint a death qualified attorney.

Initially, we agree that a claim that counsel was ineffective in advising

his client to plead guilty to avoid the death penalty when the case was not a

death penalty matter can raise an issue of arguable merit. Nonetheless, we

find that plea counsel had a reasonable basis for informing Appellant that

the Commonwealth would seek the death penalty if he did not elect to enter

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a plea. The district attorney in this matter testified at the PCRA hearing that

the parties were aware that the death penalty would be on the table if

Appellant did not enter a plea. Moreover, we do not find that the absence of

Rule 802 notice rendered plea counsel’s advice erroneous. This is simply not

a situation where every competent attorney would have determined that the

Commonwealth could not pursue the death penalty because it had not filed a

Rule 802 notice.

Here, it should be noted that Appellant’s brother and co-conspirator

was also potentially facing the death penalty. See N.T., 5/29/14, at 21

(current PCRA counsel placing on the record that Tonie Future did face the

death penalty). The facts of the crimes committed by Appellant and his

brother were identical. The affidavit of probable cause related that Appellant

told investigators that a member of the Bloods gang told him that the victim

had to be killed. The probable cause affidavit also stated that Tonie Future

admitted the killing was ordered by another gang member. The affidavit

revealed that Appellant admitted to driving the victim to the scene of the

crime before he, his brother, and Christian Kenyon shot and killed him.

Thus, the affidavit of probable cause gave Appellant constructive notice of

the potential aggravating circumstances.

Furthermore, we do not agree that it is clear that the Commonwealth

would not have been permitted to seek the death penalty because it had not

filed Rule 802 notice. Whether plea negotiations and their subsequent

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breakdown would constitute good cause for allowing post-arraignment Rule

802 notice has not been conclusively decided. Although Appellant presents

reasons for why it would not be permitted, the standard for an

ineffectiveness test requires advice that no competent attorney would

provide. In light of existing case law, counsel’s advice was not so

unreasonable as to warrant a finding of ineffectiveness.

For example, in Commonwealth v. Crews, 640 A.2d 395 (Pa. 1994),

the Commonwealth neglected to provide the defendant at the time of his

arraignment with notice under the then-applicable rule. However, it had

made the defendant aware that it intended to seek the death penalty.

Ultimately, the Commonwealth provided the rule-based notice three days

before trial. The Pennsylvania Supreme Court determined that the

aggravating circumstances were inherent in the charges and that the

defendant was not prejudiced by the lack of written notice.

Similarly, in Commonwealth v. Abdul-Salaam, 678 A.2d 342 (Pa.

1996), the High Court denied a claim that the absence of written notice

prejudiced the defendant, entitling him to capital resentencing. In Abdul-

Salaam, the prosecution provided notice that it would pursue the death

penalty one month after arraignment. The Supreme Court determined that

the defendant did not suffer prejudice because he still had over three

months to prepare for the penalty phase of the case.

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In yet another matter, Commonwealth v. Carson, 741 A.2d 686

(Pa. 1999), the Pennsylvania Supreme Court determined that written notice

provided two months after arraignment but five months before trial did not

prejudice the defendant because additional charges of robbery and

aggravated assault provided notice of the requisite aggravating

circumstances. These cases demonstrate that the failure to provide Rule

802 notice at the time of arraignment does not per se preclude seeking the

death penalty. So long as a defendant has ample time to prepare for

sentencing, no prejudice exists where the individual actually proceeds to

trial. Compare Wesley, supra (Supreme Court opining that defense

counsel did not have adequate time to prepare defense). Instantly, it is

evident that the Commonwealth had informed Appellant through plea

negotiations that it was considering pursuing the death penalty and the facts

of the case provided constructive notice. Had Appellant not pled guilty,

there was no case law precluding the Commonwealth from providing written

notice of aggravating circumstances after Appellant’s arraignment so long as

he had sufficient time to prepare.

Having concluded that the Commonwealth could have potentially

invoked the death penalty, we turn to Appellant’s position that he was

deprived of death penalty qualified counsel. The governing rule provided

that death penalty qualified counsel is required “In all cases in which the

district attorney has filed a Notice of Aggravating Circumstances[.]”

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Pa.R.Crim.P. 801. Thus, if the Commonwealth had untimely filed a notice of

aggravating circumstances, Appellant would have been constitutionally

entitled to capital counsel. The absence of death qualified counsel in this

matter was not per se prejudicial. See Commonwealth v. Staton, 120

A.3d 277, 287 (Pa. 2015) (“even assuming Attorney Speice did not satisfy

Rule 801's capital case qualifications, such fact alone would not establish his

ineffectiveness at Appellant's trial. Rather, all the prongs of the

Strickland/Pierce ineffectiveness standard must be demonstrated.”).

The totality of the circumstances in this case indicates that Appellant

was aware that the Commonwealth could seek the death penalty. The facts

underlying the crime provided sufficient notice of the possible aggravating

circumstances. The plea court conducted a thorough colloquy of Appellant.

That the Commonwealth did not file a notice of aggravating circumstances

does not make plea counsel’s advice that Appellant could avoid the death

penalty by entering a plea so lacking that no reasonable attorney would

have forwarded that advice. Appellant is not entitled to relief.

Appellant argues his next two claims, issues G and H, together. His

arguments relate to the PCRA court’s finding that Appellant’s substantive

claims in his nunc pro tunc petition were untimely. Appellant contends that

the PCRA court erred because those issues “were directly related to the

claims raised in Appellant’s original pro se [p]etition.” Appellant’s brief at

32. He continues that even if the issues were not included in his initial pro

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se petition, they were raised in his petition for reconsideration and petition

for the court’s assistance. In Appellant’s nunc pro tunc petition he

specifically averred:

Trial counsel provided ineffective assistance to Defendant by
misadvising him that by pleading guilty he would avoid the death
penalty when the death penalty was not applicable at the time
he entered his guilty plea.

Defendant’s guilty plea was unlawfully induced since Defendant
pled guilty to First Degree Murder to avoid the death penalty
when the death penalty was not applicable at the time and the
Defendant is innocent.

Commonwealth violated the plea agreement by failing to make
its best efforts to have Defendant housed in a federal
penitentiary.

Defendant did not receive notice of the Court’s dismissal of his
PCRA or his right to appeal same, and if Defendant’s Nunc Pro
Tunc Petition is not granted, he seeks reinstatement of his
appellate rights to file a nunc pro tunc appeal to the Court’s June
7, 2013 denial of Defendant’s Petition for Post Sentence
Collateral Relief.

Nunc Pro Tunc PCRA petition, 2/7/14, at unnumbered pages 5, 8, 10.

Appellant’s initial two issues are substantially similar to the claims he

made in his original PCRA filings. We have already determined that those

positions were timely raised and preserved and disposed of them on the

merits. The PCRA court also agreed with his final claim and we have upheld

the reinstatement of his PCRA appellate rights. Thus, the only issue that we

must consider if it was timely is whether Appellant’s guilty plea was

unlawfully induced because the Commonwealth violated its plea agreement

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by not making efforts to ensure he was housed in the federal prison system.

This is also Appellant’s final issue advanced on appeal.

This claim is untimely and waived because Appellant did not forward it

in his original PCRA matter. While Appellant asserts that his claim meets the

governmental interference timeliness exception, he readily acknowledges

that his argument, the court’s failure to appoint original PCRA counsel until

seven days before the one year time period expired, is without legal support.

We acknowledge that absent the filing of an adequate amended

petition or Turner/Finley no-merit letter during a first-time proceeding, a

petitioner is constructively without counsel. Commonwealth v. Hampton,

718 A.2d 1250 (Pa.Super. 1998); see also Commonwealth v. Powell,

787 A.2d 1017, 1019 (Pa.Super. 2001); Commonwealth v. Priovolos, 746

A.2d 621, 625 (Pa.Super. 2000); Commonwealth v. Ollie, 450 A.2d 1026

(Pa.Super. 1982); Commonwealth v. King, 384 A.2d 1314 (Pa.Super.

1978); Commonwealth v. Irons, 385 A.2d 1004 (Pa.Super. 1978);

Commonwealth v. Sangricco, 415 A.2d 65, 68-69 (Pa. 1980); see also

Commonwealth v. Wiley, 966 A.2d 1153 (Pa.Super. 2009) (remanding for

additional proceedings despite finding that petition was facially untimely

where counsel failed to meaningfully participate in earlier PCRA

proceedings); Commonwealth v. Blackwell, 936 A.2d 497 (Pa.Super.

2007); Commonwealth v. Perez, 799 A.2d 848 (Pa.Super. 2002);

Commonwealth v. Davis, 526 A.2d 440 (Pa.Super. 1987).

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Accordingly, where a first-time petition is dismissed without counsel

filing an amended petition or a Turner/Finley no-merit letter or

representing his client in any meaningful manner, a subsequent petition may

be treated as a first petition relating back to the original pro se petition.

Commonwealth v. Tedford, 781 A.2d 1167, 1171 (Pa. 2001) (“the PCRA

court erred by dismissing Appellant's pro se PCRA Petition rather than

directing Appellant to file an amended petition with legal assistance”);

Commonwealth v. Duffey, 713 A.2d 63 (Pa. 1998); Commonwealth v.

Williams, 828 A.2d 981, 990 (Pa. 2003) (“Tedford and Duffey stand for

the proposition that if a court dismisses a pro se petition prior to the

appointment of counsel, a subsequent counseled petition may not be treated

as an untimely second petition.”).

This case, however, is distinct from Tedford, Duffey, and Williams,

in that two separate attorneys were appointed during Appellant’s first PCRA

proceeding and they did file no-merit letters. Further, Appellant has not

argued based on these cases that his subsequent petition should be

construed as an amendment to his first time petition based on a constructive

denial of counsel. Thus, Appellant has failed to plead and prove a timeliness

exception relative to his claim that the Commonwealth failed to abide by the

plea agreement. For all the aforementioned reasons, we find that Appellant

is not entitled to relief.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/11/2016

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