Com. v. Napper, K.

J-A29040-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN NAPPER :
:
Appellant : No. 906 WDA 2019

Appeal from the PCRA Order Entered June 18, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0013964-2010

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN LEE NAPPER :
:
Appellant : No. 907 WDA 2019

Appeal from the PCRA Order Entered June 6, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0009422-2010

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 2, 2020

Kevin Lee Napper (Napper) appeals from an order of the Allegheny

County Court of Common Pleas (PCRA court) dismissing his petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

He contends on appeal that his PCRA counsel was per se ineffective due to

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* Retired Senior Judge assigned to the Superior Court.
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waiving a claim in an amended PCRA petition which Napper had initially raised

pro se. Although we find that Napper properly asserted his claim, we agree

with the PCRA court’s determination that there is no need to remand the case

because the underlying basis of the claim lacks merit.

I.

In 2011, Napper pled guilty in a global plea agreement to several

offenses at the two above-captioned docket numbers. He received an

aggregate prison term of two to four years, followed by three years of

probation. Napper did not appeal or file post-sentence motions.

During the probationary period, on April 13, 2018, Napper pled guilty to

new criminal charges. On November 20, 2018, the trial court held a probation

violation hearing and found that the new offense constituted a violation and

Napper was resentenced on his original 2011 sentence, made consecutive to

the sentence for the new conviction. Napper did not file post-sentence

motions or appeal.

Napper timely filed a pro se PCRA petition (his first) in February 2019.

He claimed, in part, that his attorney during the probation proceedings was

ineffective in allowing his probation violation hearing to be delayed for about

seven months. Napper based his ineffectiveness claim on Rule 708, which

permits a court to hold a hearing on a probation violation only if done “as

speedily as possible[.]” Pa.R.Crim.P. 708(B)(1).

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The PCRA court appointed Napper counsel who filed an amended PCRA

petition in April 2019. However, this amended PCRA petition reframed

Napper’s purported claim of ineffectiveness under Rule 708 as one of court

error, stating that “Mr. Napper’s sole claim for relief centers on his belief that

the Commonwealth did not conduct [Napper’s] probation violation hearing as

quickly as it should have[.]”.

The analysis section of the brief in support of the amended PCRA petition

cited no authorities pertaining to the PCRA nor to any case law applying the

PCRA in the context of an ineffectiveness claim. PCRA counsel stated only

that the hearing’s delay violated Rule 708 because it was not due to any fault

of Napper, but rather to the Commonwealth as well as the “negligence of the

[probation counsel] on his case and his probation officer in failing to complete

tasks necessary to hold the hearing.”

On May 9, 2019, the PCRA court gave Napper notice of its intent to

dismiss his amended petition without a hearing and allowed him 20 days to

respond. Over 20 days later, on June 5, 2019, Napper’s PCRA counsel moved

to withdraw and no response was filed on his behalf.1 On June 6, 2019, the

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1 Throughout the 20 days Napper had to respond to the PCRA court’s notice
of intent to dismiss, Napper was still represented by PCRA counsel who had
not yet sought to withdraw and who had never filed a “no-merit” letter
explaining why she thought Napper would not be able to obtain relief from his
claim. It appears that Napper’s PCRA counsel moved to withdraw after
prematurely treating his petition as already dismissed once the 20-day notice
period had elapsed.

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PCRA court granted PCRA counsel’s motion to withdraw and ruled that

appellate counsel would be appointed for appeal. That same day, the PCRA

court dismissed the amended PCRA petition.

Napper was appointed appellate counsel and he timely appealed. In his

1925(b) statement, he claimed that PCRA counsel waived a timely and

cognizable ineffectiveness claim premised on probation counsel’s failure to

seek to enforce his rights under Rule 708, depriving him of meaningful PCRA

review and warranting reinstatement of his right to file an amended petition

nunc pro tunc.2

In its opinion, the PCRA court ruled that Napper’s PCRA petition was

properly denied. See 1925(a) Opinion, 7/19/2019, at 4-5. The PCRA court

found that Napper’s PCRA counsel did not waive the ineffectiveness claim

asserted in his pro se petition because PCRA counsel had referred to probation

counsel’s “negligence” as a reason for the delay of the probation violation

hearing. On the merits, the PCRA court reasoned that the period of seven

months between Napper’s guilty plea and his probation violation hearing did

not constitute an unreasonable delay under Rule 708.

Napper now argues that his PCRA counsel’s failure to raise his pro se

claim of ineffective assistance of probation counsel is itself per se

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2 Napper filed two notices of appeal, one for each of the relevant docket
numbers, as required by the Official Note of Pa.R.A.P. 341. This Court then
consolidated the cases into one appeal.

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ineffectiveness, entitling him to re-file a counseled PCRA petition. In other

words, he asks this Court to presume that his PCRA counsel was ineffective so

that he may go back to the PCRA court and assert in a counseled petition that

his probation counsel was ineffective.

The Commonwealth contends that no relief is due because Napper was

appointed PCRA counsel and the effectiveness of counsel must be presumed;

Napper’s amended PCRA petition and appeal were timely filed, satisfying his

right to counsel and appellate review; and PCRA counsel, in fact, raised

Napper’s pro se claim of ineffective probation counsel, which the PCRA court

rejected on the merits.3 See Appellee’s Brief, at 15-16.4

II.

Before reaching the merits of Napper’s appellate claim of ineffective

PCRA counsel, we must determine if PCRA counsel’s failure to raise his pro se

claim of ineffective assistance of probation counsel is the type of issue that

can be considered for the first time on appeal. There is no federal

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3“Our standard of review for issues arising from the denial of PCRA relief is
well-settled. We must determine whether the PCRA court’s ruling is supported
by the record and free of legal error.” Commonwealth v. Johnson, 179
A.3d 1153, 1156 (Pa. Super. 2018) (internal quotation marks omitted).

4 The Commonwealth argues that Napper preserved his claim of ineffective
probation counsel and that this Court, therefore, has jurisdiction to review the
PCRA court’s ruling on the merits of that claim. See Appellee’s Brief, at 16
(citing Commonwealth v. Presley, 193 A.3d 436 (Pa. Super. 2018)).

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constitutional right to PCRA counsel, but Pennsylvania affords first-time

petitioners a right to counsel from the filing of a first PCRA petition until the

conclusion of appellate proceedings. See Pa.R.Crim.P. 904(c) (“T]he judge

shall appoint counsel to represent the defendant on the defendant’s first

petition for [PCRA] relief.”).

Although the existence of this right implies the existence of a way to

enforce it,5 our Supreme Court has noted that “no definitive resolution has

emerged” as to how the right to effective PCRA counsel is to be assured.

Commonwealth v. Henkel, 90 A.3d 16, 29 (Pa. Super. 2014) (en banc)

(quoting Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009) (holding that

petitioner had no right to appellate remand for filing of amended petition to

remedy PCRA counsel’s omission of a claim)). “[T]here is no formal

mechanism in the PCRA for a second round of collateral attack focusing upon

the performance of PCRA counsel, much less is there a formal mechanism

designed to specifically capture claims of trial counsel ineffectiveness

defaulted by initial-review PCRA counsel.” Commonwealth v. Holmes, 79

A.3d 562, 583-84 (Pa. 2013).

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5 “It is axiomatic that the right to counsel includes the concomitant right to
effective assistance of counsel. Indeed the right to counsel is meaningless if
effective assistance is not guaranteed.” Commonwealth v. Albrecht, 720
A.2d 693, 699-700 (Pa. 1998); see also Commonwealth v. Pitts, 981 A.2d
875, 890-93 (Pa. 2009) (Baer, J., dissenting) (finding that PCRA petitioners
should be able to raise claims of PCRA counsel’s ineffectiveness because there
is no other practical means of ensuring that right).

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The leading cases on PCRA counsel’s ineffectiveness explain generally

that such claims may not be raised for the first time in an initial PCRA appeal

because (a) they would be waived and unpreserved for appellate review and

(b) they would almost always be untimely because there is no applicable

exception to the PCRA’s jurisdictional time-bar requiring the filing of a PCRA

petition within one year of the finality of the petitioner’s judgment of sentence.

See generally Henkel, 90 A.3d at 24-30; see also Commonwealth v.

Watts, 23 A.3d 980, 983 (Pa. 2011) (holding that PCRA “confers no authority

upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar

in addition to those exceptions expressly delineated in the [PCRA].”);

Commonwealth v. Ligons, 971 A.2d 1125 (Pa. 2009).

The PCRA and the applicable appellate rules likewise limit a reviewing

court’s authority to consider the merits of claims that have not been timely or

properly raised. See 42 Pa.C.S. § 9545(b)(1) (imposing one-year time with

limited exceptions); 42 Pa.C.S. § 9543(a)(3) (“To be eligible for relief under

[the PCRA], the petitioner must plead and prove by a preponderance of the

evidence . . . [t]hat the allegation of error has not been . . . waived.”);

Pa.R.A.P. 302(a) (“Issues not raised in the lower courts are waived and cannot

be raised for the first time on appeal.”); Pa.R.A.P. 1925(b) (requiring

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appellant, upon court order, to preserve issues on appeal by enumerating

them in a written statement).6

However, in two recent cases, the Pennsylvania Supreme Court has

indicated that PCRA petitioners can raise claims of per se ineffective PCRA

counsel. In Commonwealth v. Rosado, 150 A.3d 425, 426 (Pa. 2016), a

defendant convicted of criminal offenses timely filed a post-sentence motion

raising a sufficiency of the evidence claim. The trial court ordered the filing

of a 1925(b) statement, but counsel did not comply. Counsel filed an appellate

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6 [C]laims of PCRA counsel ineffectiveness may not be raised for the
first time on appeal from the denial of PCRA relief.
Commonwealth v. Pitts, 981 A.2d 875, 879 n.4 (Pa. 2009)
(rejecting a petitioner’s attempt to challenge PCRA counsel’s
performance for the first time on appeal from the denial of
collateral review as such claims could have been raised in the
petitioner’s response to the trial court’s Pa.R.Crim.P. 907 notice
of intent to dismiss); Commonwealth v. Colavita, 993 A.2d 874,
893 n. 12 (Pa. 2010) (noting as an alternative basis for affirming
the intermediate appellate court that “claims of PCRA counsel
ineffectiveness may not be raised for the first time at the direct
appeal level, much less at the discretionary appeal level”);
Commonwealth v. Jette, 23 A.3d 1032, 1044 n. 14 (Pa. 2011)
(citing Colavita and Pitts for the proposition that claims of PCRA
counsel ineffectiveness cannot be raised for the first time on
appeal); see also Commonwealth v. Ford, 44 A.3d 1190, 1201
(Pa. Super. 2012), alloc. denied, 54 A.3d 347 (Pa. 2012)
([holding] that “absent recognition of a constitutional right to
effective collateral review counsel, claims of PCRA counsel
ineffectiveness cannot be raised for the first time after a notice of
appeal has been taken from the underlying PCRA matter”).

Commonwealth v. Robinson, 139 A.3d 178, 185 n.8 (Pa. 2016) (some
citations omitted).

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brief containing no preserved claims and the convictions were affirmed on that

basis. The defendant then filed a PCRA petition alleging that his trial counsel

was ineffective per se and it was denied.

Addressing the issue of whether “filing an appellate brief which

abandons all preserved issues in favor of unpreserved ones constitutes

ineffective assistance of counsel per se,” our Supreme Court held that “errors

which completely foreclose appellate review amount to a constructive denial

of counsel,” making it unnecessary for a defendant to show prejudice.

Rosado, 150 A.3d at 438-39. It went on to distinguish a “partial” deprivation

of counsel subject to the standard ineffectiveness analysis from “complete”

deprivation, whether actual or constructive: “the filing of a brief that raises

only waived issues, while technically distinct, is nonetheless akin to failing to

file documents perfecting an appeal.” Id. at 440-41.

However, Rosado only addressed the federally mandated right to

counsel on direct appeal under the United States and Pennsylvania

Constitutions and did not necessarily address Pennsylvania’s separate rule-

based right to counsel during PCRA proceedings. See Rosado, 150 A.3d at

429-30; see also Henkel, 90 A.3d at 21-24 (summarizing Pennsylvania’s

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adoption of Pa.R.Crim.P. 904(c), which affords the right to collateral review

throughout all postconviction proceedings, including appeal).7

In Commonwealth v. Peterson, 192 A.3d 1123, 1125 (Pa. 2018), our

Supreme Court applied the rationale of Rosado to PCRA proceedings. In

Peterson, a PCRA petitioner was appointed counsel who filed a PCRA petition

asserting that his guilty plea was involuntary. The petition was filed a day

late and the PCRA court did not hold a hearing on it for many years after its

filing. When the hearing finally occurred, the court deemed the petition to be

timely but denied relief on the merits. The petitioner timely appealed, but this

Court quashed the appeal for lack of jurisdiction because, unlike the trial court,

we found the petition to be untimely.8

The petitioner then filed a second PCRA petition (many years after his

judgment of sentence became final) asserting that his PCRA counsel was per

se ineffective due to the late filing of his petition. The PCRA court granted a

reinstatement of his PCRA appellate rights, but we reversed finding that there

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7 See Commonwealth v. Henkel, 90 A.3d 16, 29-30 (Pa. Super. 2014)
(suggesting that the deprivation of a state right to postconviction counsel
could possibly be remedied via a federal petition for writ of habeas corpus)
(citing Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569
U.S. 413 (2013)).

8See Commonwealth v. Peterson, No. 538 WDA 2014 (Pa. Super. January
30, 2015) (unpublished memorandum).

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was no basis in the PCRA to justify an equitable exception to the jurisdictional

time-bar.9

Reversing us, our Supreme Court held that that “counsel’s negligence

per se in filing an untimely PCRA petition constitute[d] adequate grounds to

permit the filing of a new PCRA petition[.]” Peterson, 192 A.3d at 1125.

Although the petitioner filed his second PCRA beyond the one-year time bar,

the Court held that the “untimely filing of Peterson’s first PCRA petition

constituted ineffectiveness per se, as it completely foreclosed Peterson from

obtaining review of the collateral claims set forth in his first PCRA petition.”

Id. at 1132.

The Court also clarified that the per se ineffectiveness of PCRA counsel

may constitute a “newly discovered fact” that satisfies an exception to the

PCRA’s one-year time bar. Id. at 1130-31. In doing so, the Court left intact

its previous holdings that mere ineffectiveness, as opposed to the per se

variety, is not a “newly discovered ‘fact’ for purposes of invoking the

subsection 9545(b)(1)(ii) exception.” Id. at 1129 (citing Commonwealth v.

Crews, 863 A.2d 498, 503 (Pa. 2004); Commonwealth v. Howard, 788

A.2d 351, 355 (Pa. 2002); Commonwealth v. Pursell, 749 A.2d 911, 916

(Pa. 2000); and Gamboa–Taylor, 753 A.2d 780, 785 (Pa. 2000)).

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9See Commonwealth v. Peterson, No. 141 WDA 2016, No. 181 WDA 2016,
at *3 (Pa. Super. September 29, 2016) (unpublished memorandum).

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Based on Rosado, Peterson, and the authorities discussed therein, a

petitioner may assert for the first time on appeal and beyond the one-year

time bar that PCRA counsel was per se ineffective.

In this case, Napper has asserted a cognizable claim of per se

ineffectiveness because he argues that his PCRA counsel waived a preserved

PCRA claim in order to file an amended PCRA petition on his behalf containing

no PCRA claims. If Napper is correct that, in effect, no amended PCRA petition

was ever filed, then there is no practical difference between his situation and

the circumstances of a first-time pro se petitioner who is erroneously denied

an attorney or meaningful appellate review of PCRA claims. The failure of

PCRA counsel to file a cognizable PCRA claim in the amended petition would

be a newly discovered fact that satisfies an exception to the PCRA’s time-bar

under subjection 9545(b)(1)(ii).

III.

Having resolved the threshold jurisdictional matter of whether this Court

can entertain a new claim of per se ineffectiveness by PCRA counsel on an

initial PCRA appeal, we now consider whether that claim has merit. Napper is

correct that the amended petition was facially deficient because it did not

present claims that were cognizable under the PCRA. However, there are two

reasons why he is nevertheless barred from filing another amended petition

as he requests.

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First, the PCRA court could discern from both the pro se petition and the

amended petition that Napper was asserting an ineffectiveness claim. Before

PCRA counsel was appointed, Napper had alleged in his pro se petition that

his probation counsel was ineffective in failing to enforce his right to a timely

probation violation hearing under Rule 708. The amended petition did not

refer to all the elements of ineffectiveness, but it was clear to the PCRA court

that such a claim was being asserted, giving the PCRA court the liberty to treat

it as such. As a result, PCRA counsel was not ineffective per se because there

was no complete deprivation of representation during the PCRA proceedings.

Second, PCRA counsel asserted grounds in the amended petition that

would have been necessary elements of a claim of ineffective assistance of

probation counsel. PCRA counsel alleged that Napper suffered prejudice as a

result of a violation of Rule 708. At the time he filed his amended petition,

Napper’s probation counsel was presumed effective and he, in his PCRA claim,

had the burden of proving by a preponderance of the evidence that

(1) the underlying legal claim has arguable merit; (2) counsel had
no reasonable basis for his action or inaction; and (3) [the
appellant] suffered prejudice because of counsel’s action or
inaction.

Commonwealth v. Brown, 161 A.3d 960, 965 (Pa. Super. 2017) (citations

and quotation marks omitted). The failure to prove any single element is fatal

to an ineffectiveness claim. Id.

The PCRA court found that the underlying Rule 708 claim lacked

arguable merit and Napper suffered no prejudice. By resolving necessary

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elements of ineffectiveness in the context of Rule 708 – which had been

advanced in substance by PCRA counsel – the PCRA court addressed the

merits of a counseled PCRA claim of ineffectiveness. Napper makes no

argument that the PCRA court’s decision on the merits was incorrect.

Accordingly, we conclude that Napper’s amended PCRA petition was

properly dismissed, his PCRA counsel was not ineffective per se, and he is not

entitled to re-file a counseled claim of ineffective probation counsel.

Order affirmed.

Judge Kunselman joins the memorandum.

President Judge Emeritus Bender concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/2/2020

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