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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAWN CARMICHAEL,
Appellant No. 1254 MDA 2016
Appeal from the PCRA Order March 28, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0005114-2012
BEFORE: GANTMAN, P.J., SHOGAN and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MAY 11, 2017
Appellant, Shawn Carmichael, appeals pro se from the order denying
his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. We remand with instructions and retain jurisdiction.
We summarize the procedural history of this matter as follows. On
August 6, 2012, the Commonwealth filed a criminal information charging
Appellant with criminal attempt to commit first degree murder, aggravated
assault, person not to possess a firearm, discharge of a firearm into an
occupied structure, recklessly endangering another person (“REAP”), and
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*
Retired Senior Judge assigned to the Superior Court.
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resisting arrest.1 On October 11, 2013, a jury found Appellant guilty of the
crimes of person not to possess a firearm, aggravated assault, REAP, and
resisting arrest. On November 18, 2013, the trial court sentenced Appellant
to serve an aggregate term of incarceration of ninety-three to 186 months.
Appellant filed timely post-sentence motions, which the trial court denied
following a hearing. Appellant then filed a timely appeal, and this Court
affirmed Appellant’s judgment of sentence on November 5, 2014.
Commonwealth v. Carmichael, 113 A.3d 340, 372 MDA 2014 (Pa. Super.
filed November 5, 2014) (unpublished memorandum). Appellant did not file
a petition for allowance of appeal with the Pennsylvania Supreme Court.
On December 18, 2014, Appellant filed, pro se, the instant PCRA
petition. On September 28, 2015, the PCRA court appointed counsel to
represent Appellant and scheduled a hearing for December 2, 2015. Counsel
then filed a petition to withdraw and a no–merit letter pursuant to
Turner/Finley.2 On January 20, 2016, the trial court filed an order
granting counsel permission to withdraw based upon a finding of a
breakdown in the attorney-client relationship. The order of January 20,
2016, indicated that the PCRA court found one issue of arguable merit and
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1
18 Pa.C.S. §§ 901, 2702, 6105, 2707.1, 2705, and 5104, respectively.
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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appointed new counsel to represent Appellant at a PCRA hearing to be held
on March 28, 2016.
In an order dated March 28, 2016, and filed on April 18, 2016, the
PCRA court found that Appellant’s remaining issue was without merit. This
timely appeal followed.3 Both Appellant and the PCRA court have complied
with Pa.R.A.P. 1925.4
Appellant presents the following issues for our review:
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3
We note that the trial court’s docket indicates Appellant’s notice of appeal
was filed on May 24, 2016, which is beyond the thirty-day appeal period.
See Pa.R.A.P. 903 (setting forth thirty-day period in which to timely file
appeal). Consequently, on October 3, 2016, this Court entered an order
directing Appellant to show cause why his appeal should not be quashed as
untimely filed. Appellant, who is incarcerated, has responded to the rule to
show cause indicating that he timely filed his notice of appeal on May 18,
2016, when he placed his notice of appeal in the institutional mailbox. Thus,
Appellant has employed the prisoner mailbox rule. See Commonwealth v.
Wilson, 911 A.2d 942, 944 (Pa. Super. 2006) (recognizing that under the
“prisoner mailbox rule,” a document is deemed filed when placed in the
hands of prison authorities for mailing). Under that rule, “we are inclined to
accept any reasonably verifiable evidence of the date that the prisoner
deposits the appeal with the prison authorities. . . .” Commonwealth v.
Perez, 799 A.2d 848, 851 (Pa. Super. 2002) (quoting Commonwealth v.
Jones, 700 A.2d 423, 426 (Pa. 1997)). We observe that Appellant has
appended to his response a cash slip from the Department of Corrections.
The cash slip is dated May 18, 2016, and is addressed to the York County
Judicial Center. In addition, our review of the certified record reflects that
Appellant’s notice of appeal and certificate of service are dated May 16,
2016. Accordingly, we conclude that, pursuant to the prisoner mailbox rule,
Appellant timely filed his notice of appeal.
4
On July 27, 2016, PCRA counsel filed a motion to withdraw, relying upon
previous PCRA counsel’s no-merit letter. The PCRA court granted counsel’s
request to withdraw on July 29, 2016.
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I. WHETHER THE PRESENT APPEAL SHOULD BE QUASHED
BASED ON APPELLANT’S FAILURE TO FILE A NOTICE OF APPEAL
FOLLOWING THE ENTRY OF THE PCRA COURT’S JANUARY 14,
2016 ORDER DISMISSING SOME BUT, NOT ALL OF HIS CLAIMS
FOR PCRA RELIEF?
II. WHETHER THE PCRA COURT’S FINDING THAT THERE IS NO
MERIT TO APPELLANT’S CLAIMS FOR PCRA RELIEF IS
SUPPORTED BY THE RECORD?
Appellant’s Brief at 4.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014) (en banc)). This Court is limited to determining whether the evidence
of record supports the conclusions of the PCRA court and whether the ruling
is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings that
are supported in the record and will not disturb them unless they have no
support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa. Super. 2014).
Appellant first argues that his appeal should not be quashed, as
suggested by the PCRA court. Appellant’s Brief at 12-14. Specifically,
Appellant contends the PCRA court’s allegation his appeal is untimely
because Appellant appealed from the order of January 20, 2016, lacks merit.
Id. We agree.
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Initially, we observe that this issue was not raised in Appellant’s
Pa.R.A.P. 1925(b) statement. Ordinarily, we would be constrained to
conclude that this argument is waived for purposes of appellate review. See
Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998) (holding that
where a trial court directs a defendant to file a concise statement pursuant
to Pa.R.A.P. 1925, any issues not raised in that statement shall be waived).
See also Commonwealth v. Oliver, 946 A.2d 1111, 1115 (Pa. Super.
2008) (noting that Lord “requires a finding of waiver whenever an appellant
fails to raise an issue in a court-ordered Pa.R.A.P. 1925(b) statement”).
However, because the timeliness of an appeal implicates our jurisdiction, we
are compelled to consider whether this appeal is timely. See Pa.R.A.P.
903(a) (establishing general rule that appeal must be filed within thirty days
of entry of order); Commonwealth v. Green, 862 A.2d 613, 615 (Pa.
Super. 2004) (noting that timeliness of appeal implicates jurisdiction and
may be raised sua sponte).
As a general rule, an appeal can be taken only from a final order.
Pa.R.A.P. 341. Rule 341 is fundamental to the exercise of jurisdiction by this
Court and is rigorously applied. Brickman Group, Ltd. v. CGU Ins. Co.,
829 A.2d 1160, 1164 (Pa. Super. 2003).
Rule 341 provides, in relevant part, as follows:
Rule 341. Final Orders; Generally
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(a) General rule. Except as prescribed in paragraphs
(d) and (e) of this rule, an appeal may be taken as of right from
any final order of an administrative agency or lower court.
(b) Definition of final order. A final order is any order
that:
(1) disposes of all claims and of all parties; or
(2) RESCINDED
(3) is entered as a final order pursuant to
subdivision (c) of this rule.
(c) Determination of finality. When more than one
claim for relief is presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party claim or when multiple
parties are involved, the trial court or other governmental
unit may enter a final order as to one or more but fewer
than all of the claims and parties only upon an express
determination that an immediate appeal would facilitate
resolution of the entire case. Such an order becomes
appealable when entered. In the absence of such a
determination and entry of a final order, any order or
other form of decision that adjudicates fewer than all the
claims and parties shall not constitute a final order. . . .
Pa.R.A.P. 341 (emphases added). As set forth above, Rule 341 instructs
that “[a]ny order or other form of decision that adjudicates fewer than all
claims and all parties does not constitute a final order.” Kovalchick v.
B.J.'s Wholesale Club, 774 A.2d 776, 777 (Pa. Super. 2001) (citing
Pa.R.A.P. 341).
Here, the record reflects the following. Appellant filed the instant
PCRA petition on December 18, 2014. On September 28, 2015, the PCRA
court appointed PCRA counsel and scheduled a hearing for December 2,
2015. Counsel then filed a petition to withdraw and a no–merit letter
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pursuant to Turner/Finley. On December 2, 2015, the PCRA court held the
hearing, and on January 20, 2016, filed an order granting counsel
permission to withdraw based upon a finding of a breakdown in the
attorney-client relationship. The order of January 20, 2016, indicated that
the PCRA court found one issue of arguable merit and appointed new counsel
to represent Appellant at a PCRA hearing to be held on March 28, 2016.
As previously noted, the PCRA court’s order of January 20, 2016,
stated the following, in relevant part:
This Court finds one issue of arguable merit raised by
[Appellant]. Specifically, whether direct appeal counsel was
ineffective for failing to brief adequately, and thereby causing to
be waived, [Appellant’s] claims that the verdict of guilty was
against the weight and sufficiency of the evidence.
A hearing shall be held on this sole issue on March
28, 2016, . . . . This Court finds no arguable merit in
[Appellant’s] remaining claims, and they are hereby DISMISSED.
Order, 1/20/16, at 1-2 (emphasis in original).
The PCRA court held a hearing, as scheduled, on March 28, 2016.
N.T., 3/28/16, at 1-14. In an order dated March 28, 2016, and filed on April
18, 2016, the PCRA court determined that Appellant’s sole remaining issue
relating to ineffective assistance of counsel for failing to properly argue
Appellant’s challenges to the weight and sufficiency of the evidence on
appeal was without merit. Specifically, the PCRA court’s order stated the
following:
In this case, newly-appointed counsel, Attorney Smith, as
well as the Commonwealth, maintain that the weight and
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sufficiency argument raised by [Appellant] is without merit. The
[c]ourt did painstakingly review the trial transcripts in this case,
and we find further, by virtue of [the trial judge’s] review of the
record and the facts of the case at the time of the post-
sentencing motions, that the weight and sufficiency arguments
were adequately addressed; and therefore, we dismiss that claim
raised by [Appellant] as well, which ultimately disposes of all
claims raised by [Appellant’s] PCRA petition.
Order, 4/18/16, at 2 (emphasis added). Appellant then filed this appeal
from the order entered on April 18, 2016.
In its Pa.R.A.P. 1925(a) opinion, the PCRA court did not address the
issues presented by Appellant in his Pa.R.A.P. 1925(b) statement. Rather
the PCRA court addressed the timeliness of this appeal. Specifically, the
PCRA court stated the following:
AND NOW, this 1st day of September 2016, upon receipt of
a notice that an appeal has been filed in this matter, and in
consideration of the Concise Statement of Matters Complained Of
on Appeal filed by [Appellant], the undersigned states the issues
raised by [Appellant] are untimely.
[Appellant’s] 1925(b) complains of issues that were
dismissed pursuant to an Order signed by this Court on January
14, 2016[, and filed on January 20, 2016]. This Court found no
arguable merit in [Appellant’s] claims. [Appellant] had the right
to appeal the Order of Dismissal and file a notice of appeal within
thirty (30) days after entry of the Order, however he failed to do
so.
Therefore, this Court requests the Superior Court to
dismiss or strike Appellant’s appeal.
PCRA Court Opinion, 9/1/16, at 1-2. We disagree with the PCRA court’s
assessment.
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Because the order filed on January 20, 2016, failed to dispose of all
claims and of all parties necessary to make it a final order pursuant to
Pa.R.A.P. 341(b)(1), and because no determination of finality was made at
that time as required by Pa.R.A.P. 341(c), no final order existed from which
Appellant could have taken an appeal. Rather, as the PCRA court’s April 18,
2016 order explains, all claims raised in Appellant’s PCRA petition were not
finally disposed of until the PCRA court entered its order on April 18, 2016.
We are, thus, constrained to conclude that if Appellant attempted to appeal
from the order of January 20, 2016, said appeal would have been quashed
as the order appealed from was not final. Accordingly, Appellant was correct
in waiting to file an appeal until the PCRA court addressed the merits of the
final issue and entered its order on April 18, 2016, “which ultimately
dispose[d] of all claims raised by [Appellant’s] PCRA petition.” Order,
4/18/16, at 2. Hence, we conclude that the instant appeal is properly before
this Court.
In his second issue, Appellant argues that the PCRA court erred in
dismissing his PCRA petition. Appellant’s Brief at 14-20. Specifically,
Appellant contends that the PCRA court erred in finding that his various
claims of ineffective assistance of counsel lacked merit.
Our review of the matter at this juncture is hampered due to the PCRA
court’s failure to fully comply with Pa.R.A.P. 1925(a). Rule 1925(a) states:
Except as otherwise prescribed by this rule, upon receipt of the
notice of appeal, the judge who entered the order giving rise to
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the notice of appeal, if the reasons for the order do not already
appear of record, shall forthwith file of record at least a
brief opinion of the reasons for the order, or for the
rulings or other errors complained of, or shall specify in
writing the place in the record where such reasons may
be found.
Pa.R.A.P. 1925(a) (emphasis added). The purpose of this rule is to provide
the appellate court with a statement of reasons for the order to permit
effective and meaningful review of lower court decisions. Commonwealth
v. Benchoff, 700 A.2d 1289, 1293 (Pa. Super. 1997). “The absence of a
trial court opinion poses a substantial impediment to meaningful and
effective appellate review. . . . Rule 1925 is thus a crucial component of the
appellate process.” Lord, 719 at 308. See also Commonwealth v.
Kinsel, 588 A.2d 34 (Pa. Super. 1991) (remanding to trial court for
preparation of opinion pursuant to Pa.R.A.P. 1925(a)).
Instantly, our ability to conduct meaningful review of the ineffective
assistance of counsel issues on appeal is hampered by the nature of the
PCRA court’s opinion, which addressed only the timeliness of the appeal and
failed to address the issues presented by Appellant in his Pa.R.A.P. 1925(b)
statement. Because we do not have the benefit of a Pa.R.A.P. 1925(a)
opinion addressing Appellant’s claims of error, we remand this matter to the
PCRA court with the directive to write an additional Pa.R.A.P. 1925(a)
opinion. Said opinion should illuminate the reasons the PCRA court
determined Appellant’s PCRA claims lacked merit and the basis for dismissal
of Appellant’s PCRA petition. The PCRA court is instructed to comply with
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this directive within thirty days from the filing of this memorandum. Panel
jurisdiction is retained.
Case remanded for preparation of a Pa.R.A.P. 1925(a) opinion. Panel
jurisdiction retained.
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