J-S79045-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RODNEY CLARKE :
:
Appellant : No. 2738 EDA 2016
Appeal from the PCRA Order May 19, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004100-2012,
CP-51-CR-0004111-2012
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 29, 2017
Appellant, Rodney Clarke, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which denied and dismissed his
first petition brought pursuant to the Post Conviction Relief Act (“PCRA”). 1
For the following reasons, we vacate and remand for further proceedings.
The PCRA court opinion sets forth the relevant facts and procedural
history of this case as follows:
When “K.S” was between the ages of 9 and 14 years,
Appellant, who was married to K.S.’ grandmother at the
time, fondled her and penetrated her vagina with his
penis. When “E.S.” was between the ages of 11 and 15
years, Appellant, who was E.S.’ stepfather at the time, had
oral sex with E.S. and penetrated E.S.’ anus with his penis.
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1 42 Pa.C.S.A. §§ 9541-9546.
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On October 16, 2012, this [c]ourt accepted a negotiated
nolo contendere plea of Appellant and adjudged him guilty
of the following offenses: Rape by Forcible Compulsion (18
Pa.C.S.A. § 3121(a)(1)) and Unlawful Contact with a Minor
(18 Pa.C.S.A. § 6318(a)(1)) on case CP-51-CR-0004100-
2012; Involuntary Deviate Sexual Intercourse by Forcible
Compulsion (“IDSI”) (18 Pa.C.S.A. § 3123(a)(1)) and
Unlawful Contact with a Minor (18 Pa.C.S.A. § 6318(a)(1)
on case CP-51-CR-0004111-2012. All charges were
graded as felonies of the first degree. In accordance with
the plea agreement, the [c]ourt sentenced Appellant to
10−20 years on the charge of Rape, 10−20 years on the
charge of Involuntary Deviate Sexual Intercourse, and
5−10 years for each charge of Unlawful Contact with a
Minor. The [c]ourt ordered that the Rape and IDSI
sentences were to run concurrent with one another, and
that the charges of Unlawful Contact with a Minor were to
run concurrent to one another but consecutive to the Rape
and IDSI charges. Thus, the [c]ourt imposed an
aggregate sentence of 15−30 years of incarceration.
Additionally, at the time of sentencing, Appellant was
already serving a sentence of incarceration for two counts
of IDSI from previous cases with a sentencing date of
March 14, 2008. The [c]ourt ordered that the new
sentence was to run concurrent with these previous
sentences. Appellant was advised by his attorney that he
had ten days to file a post-sentence motion for relief and,
that if he failed to do, he would no longer have the right to
file an appeal. No post-sentence motion was filed.
Appellant filed a petition for relief pursuant to the [PCRA]
on July 31, 2013, as well as multiple supplements and
addendums. He made the following claims:
1. That Appellant’s sentence for the crime of
unlawful contact by a minor should not run
consecutive to his other charges because the
charges arise from the same course of
conduct. (Appellant’s Addendum to PCRA, filed
9/3/14, at 5).
2. That his sentence should run concurrent to
the sentence from his 2006 case because the
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incidents from which the charges on this case
stem predate the 2006 case. (Addendum to
PCRA, filed 9/2/14, at 5).
3. That the [c]ourt cannot impose
consecutive prison terms without making a
finding that Appellant caused separate harms
to the victims by the acts that produced the
two convictions. (Addendum to PCRA filed
9/25/13, at 4-5; Addendum to PCRA filed
9/2/14, at 5).
4. That the [c]ourt’s sentence was “harsh
and excessive” given that “Defendant is a 56
year old black male who suffers from
glaucoma…diabetes, C.O.P.D. and liver
disease…and that the sentence imposed…is
equivalent to a life sentence.” (Addendum to
PCRA, filed 9/25/13, at 7).
5. That the negotiated sentence deviated
from the guidelines and the court offered no
explanation as to the reason for the deviation.
(Addendum to PCRA, filed 9/25/13, at 3;
Addendum to PCRA, filed 9/2/14, at 4).
6. That the court erred in determining that
this case was a second strike case and
Appellant’s conviction “should be treated as his
first strike pursuant to…Commonwealth v.
Shiffler[, 583 Pa. 478, 879 A.2d 185 (2005)]
because he pled nolo contendere to all charges
and the sentences for the crimes ran
concurrently and [he] had no opportunity to
reform.” (Addendum to PCRA filed 9/2/14, at
6-7).
7. That the [c]ourt erred in imposing an
unlawful and unconstitutional sentence in light
of [Alleyne v. United States, ___ U.S. ___,
133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)].
(Supplemental Addendum, filed 12/11/14, at
1-3).
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8. That Appellant’s trial counsel incorrectly
told him that his time credit on the new cases
would begin on March 14, 2008, the
sentencing date on previous cases, and that
this faulty advice induced his plea. (PCRA,
filed 7/31/13, at 3).
9. That his written guilty plea agreement
inaccurately described his maximum possible
period of incarceration. (Id. at 6).
10. That the [c]ourt erred in previously
granting a Bad Acts motion and that facts of
the prior case were wrongly used to enhance
his sentence. (Amended PCRA petition, filed
4/22/14, at 1-2).
On March 31, 2015, a Finley[2] letter was filed by
[counsel] addressing issues 3, 4, 8 and 10. The [c]ourt
dismissed the petition on May 19, 2015. Appellant filed a
second PCRA petition pro se on July 8, 2015, claiming that
he did not receive notice of the [c]ourt’s dismissal and
requesting that his PCRA appeal rights be reinstated nunc
pro tunc. On July 7, 2016, the [c]ourt granted Appellant’s
request, reinstated his PCRA appellate rights, and informed
Appellant that he was entitled to an attorney on appeal.
Appellant appealed the PCRA dismissal to the Superior
Court on August 1, 2016. However, the [c]ourt neglected
to appoint counsel. A Statement of [Errors] Complained of
on Appeal [per Pa.R.A.P. 1925(b)] was filed pro se on
October 7, 2016.
(PCRA Opinion, filed January 6, 2017, at 1-3) (internal citations and footnote
omitted).
Appellant raises the following issue on appeal:
WHETHER APPELLANT’S CASE SHOULD BE REMANDED FOR
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2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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AN EVIDENTIARY HEARING.
(Appellant’s Brief at 2).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251, 1252 (Pa.Super. 2008), appeal denied, 598 Pa. 779,
959 A.2d 319 (2008). This Court grants great deference to the findings of
the PCRA court if the record contains any support for those findings.
Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007). A petitioner is not entitled to a
PCRA hearing as a matter of right; the PCRA court can decline to hold a
hearing if there is no genuine issue concerning any material fact, the
petitioner is not entitled to PCRA relief, and no purpose would be served by
any further proceedings. Commonwealth v. Hardcastle, 549 Pa. 450,
454, 701 A.2d 541, 542 (1997); Commonwealth v. Smith, 121 A.3d 1049
(Pa.Super. 2015). For example, the PCRA court has the discretion to deny a
hearing on the petitioner’s claims if they are “patently frivolous” and have
“no support either in the record or other evidence.” Commonwealth v.
Grove, 170 A.3d 1127, 1149 (Pa.Super. 2017) (quoting Commonwealth v.
Wah, 42 A.3d 335, 338 (Pa.Super. 2012)). “A reviewing court on appeal
must examine each of the issues raised in the PCRA petition in light of the
record certified before it” to see if the PCRA court “erred in concluding that
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there were no genuine issues of material fact and in denying relief without
conducting an evidentiary hearing.” Smith, supra at 1052. The purpose of
an evidentiary hearing in this context is to resolve actual conflicts, not to
conduct a fishing expedition for any possible evidence that might support
some speculative claim. Grove, supra (citing Commonwealth v. Roney,
622 Pa. 1, 79 A.3d 595, 605 (2013), cert. denied, ___ U.S. ___, 135 S.Ct.
56, 190 L.Ed.2d 56 (2014)). On the other hand, if the petitioner raises
genuine issues of material fact, which the PCRA court cannot decide solely
on the record, then the court should hold a hearing to resolve the conflicts.
Commonwealth v. Garry, ___ A.3d ___, 2017 PA Super 323 (filed October
13, 2017).
In response to Appellant’s appeal, the PCRA court reasoned:
While it appears that PCRA counsel addressed in his Finley
letter only four of Appellant’s ten underlying PCRA
allegations of error, Appellant’s claim for relief on appeal
seems to suggest that he is arguing only those six claims
that counsel did not address, rather than all ten. However,
because the [c]ourt neglected to appoint appellate counsel
as it has promised, the case should be remanded for
appointment of counsel, who can more adequately address
the [c]ourt’s denial of PCRA relief. Moreover, while it
appears that Appellant may have waived many issues by
not raising them on direct appeal, see 42 Pa.C.S. §
9544(b) (a PCRA claim is waived if “the petitioner could
have raised it but failed to do so before trial, at trial,
during unitary review, on appeal or in a prior state post-
conviction proceeding”), his plea attorney incorrectly
advised him that he would not have the right to appeal the
judgment of sentence if he did not first file a post-sentence
motion within ten days of sentencing. The [c]ourt thus
believes that, in order to obviate the need for an additional
PCRA petition down the road, appellate counsel should be
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permitted on remand to address all of Appellant’s claims
regarding the sentencing proceeding under the umbrella of
the instant petition.
This case should also be remanded for an evidentiary
hearing regarding the issue (#8 above) of what his
attorney told him about the date his sentence would
commence. In addition to his own averment, Appellant
attached an affidavit to his PCRA petition from his sister,
Helen Clarke, stating that Appellant’s trial counsel also told
her that Appellant’s new sentence would “start on March
14, 2008…” Sworn Affidavit by Helen Clarke, Received by
the Clerk of Court on 8/2/13. Any such advice from his
attorney would constitute ineffective assistance. Thus, his
claim creates an issue of material fact entitling him to an
evidentiary hearing. The [c]ourt’s previous decision to the
contrary, like [counsel’s] assessment of the issue in his
Finley letter, was wrong.
Appellant also claims that the [c]ourt erred by not
reinstating his right to file a post-sentence motion, about
which Appellant was correctly advised. However, he did
not raise this issue in either his first, counseled, PCRA
petition or his second, pro se, PCRA petition. Therefore,
this claim has been waived. See 42 Pa.C.S. § 9544(b).
In light of the above, the [c]ourt recommends that its
order dismissing Appellant’s PCRA petition be vacated and
that new counsel be appointed for 1) an evidentiary
hearing on the issue of retroactive sentencing advice, 2)
review and litigation of those PCRA claims made by
Appellant which were not addressed by [prior PCRA
counsel), and 3) any subsequent appellate proceedings.
(PCRA Court Opinion at 4-5). Under the unique circumstances of this case,
we agree with the PCRA court that a remand is necessary for the
appointment of new counsel, a possible amended PCRA petition, further
pursuit of the claim(s) related to the ineffective assistance of plea counsel,
and a hearing on those claims. Contrary to the Commonwealth’s position
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that Appellant was technically not “entitled” to PCRA appellate counsel, the
court’s letter to Appellant was both ambiguous and misleading on the topic.
Undeniably, the PCRA court is in the best position to decide (a) if it promised
to appoint appellate counsel for Appellant and (b) whether it should hold an
evidentiary hearing on Appellant’s claims. See Pa.R.Crim.P. 122(A)(3)
(allowing court discretion to appoint counsel and stating: “Counsel shall be
appointed: …(3) in all cases, by the court, on its own motion, when the
interests of justice require it”); McGarry, supra. In combination with other
issues involved in this case, such as plea counsel’s alleged advice on
sentencing, we conclude the best resolution is to vacate and remand for
further proceedings, as the PCRA court has requested. See
Commonwealth v. Kenney, 557 Pa. 195, 732 A.2d 1161 (1999) (holding
reviewing court is error-correcting court and cannot evaluate claims which
PCRA court did not consider; Superior Court has no original jurisdiction in
PCRA proceedings; if record is insufficient to adjudicate allegations, case
should be remanded for further inquiry). Accordingly, we vacate and
remand for further proceedings.
Order vacated; case remanded for further proceedings. Jurisdiction is
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/17
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