J. S62026/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
v. :
:
CURTIS TODD FOOSE :
:
APPELLANT : No. 72 MDA 2016
Appeal from the PCRA Order December 14, 2015
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0001822-2009
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 22, 2016
Appellant, Curtis Todd Foose, appeals from the Order entered in the
Schuylkill County Court of Common Pleas on December 14, 2015, dismissing
his first Petition pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-46, without an evidentiary hearing. After careful review,
we are constrained to vacate the December 14, 2015 Order and remand this
matter.
A detailed recitation of the facts is not necessary to our disposition.
Briefly, on September 17, 2010, Appellant entered a guilty plea to a charge
of Third Degree Murder in connection with the beating death of victim
Andrew Locascio. On November 5, 2010, the trial court sentenced Appellant
to a sentence of 47 ½ years’ to 95 years’ incarceration.
J. S62026/16
Appellant filed an untimely appeal from his Judgment of Sentence on
January 13, 2011, which this Court quashed on September 20, 2011.
Appellant filed a PCRA Petition on November 29, 2011. The PCRA court
denied the Petition, and Appellant appealed to this Court on June 1, 2012.
Following this Court’s review, Appellant’s direct appeal rights were reinstated
nunc pro tunc. See Commonwealth v. Foose, No. 1013 MDA 2012
(unpublished memorandum) (Pa. Super. filed December 24, 2012).
Appellant appealed from his Judgment of Sentence anew, and this
Court affirmed. See Commonwealth v. Foose, No. 787 MDA 2013
(unpublished memorandum) (Pa. Super. filed November 7, 2013). The
Pennsylvania Supreme Court denied Appellant’s Petition for Allowance of
Appeal on May 30, 2014. See Commonwealth v. Foose, No. 929 MAL
2013 (Pa. filed May, 30, 2014). Appellant’s Judgment of Sentence became
final, therefore, on August 28, 2014. See U.S.Sup.Ct.R. 13;
Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998)
(explaining that Judgment of Sentence becomes final 90 days after denial of
Petition for Allocatur).
Appellant filed the instant pro se PCRA petition on July 1, 2015. The
trial court appointed Julie A. Werdt, Esquire as counsel, and granted
Appellant’s In Forma Pauperis Petition on August 20, 2015. On August 28,
2015, the Commonwealth filed a Response to Petition for Post Conviction
Collateral Relief.
-2-
J. S62026/16
On November 3, 2015, Appellant sent a hand-written letter to the
Schuylkill County Clerk of Courts in which he stated that, “I am writing
because I want to know if I have any representation at all because the one
that you gave to represent me[,] Julie A. Werdt, Esquire[,] only wrote me
two time[s] and after that ‘no response’. . . still ‘no contact’ from this
attorney.” Letter, 11/3/15. The docket reflects that the court forwarded
this letter to Appellant’s counsel and the Commonwealth pursuant to
Pa.R.Crim.P. 576.
On November 27, 2015, the PCRA court entered a Notice of Intent to
Dismiss Appellant’s PCRA Petition without a Hearing pursuant to
Pa.R.Crim.P. 907.
On December 3, 2015, Appellant sent the Schuylkill County Clerk of
Courts a second letter in which he reiterated that his appointed counsel had
not responded to any of his letters and noted that he “would like to have her
taken off [his] case[.]” Letter, 12/3/15. The court also forwarded this letter
to Appellant’s counsel and the Commonwealth.
On December 14, 2015, the PCRA court dismissed Appellant’s PCRA
Petition without a hearing. Appellant’s counsel filed a Notice of Appeal from
the December 14, 2015 Order on January 13, 2016. Appellant also filed a
pro se “Nunc Pro Tunc Notice of Appeal” on January 29, 2015. Appellant’s
counsel filed a timely Pa.R.A.P. 1925 Statement in accordance with the PCRA
court’s January 14, 2016 Order.
-3-
J. S62026/16
Defendants have a general rule-based right to the assistance of
counsel for their first PCRA petition.1 Pa.R.Crim.P. 904(C); accord
Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009) (en
banc) (stating, “a criminal defendant has a right to representation of counsel
for purposes of litigating a first PCRA petition through the entire appellate
process[]”). “The indigent petitioner’s right to counsel must be honored
regardless of the merits of his underlying claims, even where those claims
were previously addressed on direct appeal, so long as the petition in
question is his first.” Commonwealth v. Powell, 787 A.2d 1017, 1019
(Pa. Super. 2001) (citation omitted). “Moreover, once counsel is appointed,
he [or she] must take affirmative steps to discharge his [or her] duties.” Id.
When appointed, counsel’s duty is to either (1) amend the petitioner’s
pro se petition and present the petitioner’s claims in acceptable legal terms,
or (2) certify that the claims lack merit by complying with the mandates of
Turner/Finley.2 “If appointed counsel fails to take either of these steps,
our courts have not hesitated to find that the petition was effectively
uncounseled.” Powell, 787 A.2d at 1019 (citation omitted).
1
Although this was technically Appellant’s second PCRA Petition, because
the PCRA court granted Appellant’s first Petition and reinstated his direct
appeal rights nunc pro tunc, this Petition is considered his first for purposes
of timeliness under the PCRA. See Commonwealth v. Karanicolas, 836
A.2d 940, 942 (Pa. Super. 2003).
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
-4-
J. S62026/16
Our review of the record indicates that Appellant’s appointed counsel
neither filed an amended PCRA Petition on Appellant’s behalf nor certified
that Appellant's claims lacked merit and sought leave to withdraw as counsel
by filing a Turner/Finley letter. Moreover, Appellant did not file a request
with the trial court to proceed pro se, and the PCRA court did not hold a
hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
We conclude, therefore, that Appellant was effectively denied his right to
assistance of counsel. Accordingly, although recognizing that Appellant’s
counsel did advocate on Appellant’s behalf by filing a Notice of Appeal, Rule
1925(b) Statement, and Appellate Brief, out of an abundance of caution we
remand for the appointment of substitute counsel who is directed to file an
amended PCRA Petition or a Turner/Finley letter. See Powell, 787 A.2d
at 1021.
Order vacated. Case remanded. The PCRA Court is instructed to
appoint counsel within 30 days. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2016
-5-
J. S62026/16
-6-