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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ERNESTO MARTINEZ,
Appellant No. 1736 EDA 2015
Appeal from the PCRA Order May 15, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0015196-2008
BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 24, 2017
Appellant, Ernesto Martinez, proceeding pro se, appeals from the order
entered May 15, 2015, denying his petition filed pursuant to the Post
Conviction Relief Act, 42 Pa.C.S. §§ 9541–9546 (“PCRA”). For the reasons
that follow, we vacate the PCRA court’s May 15, 2015 order and remand the
matter to the PCRA court for additional proceedings consistent with this
memorandum.
The certified record reflects the following relevant procedural
background of this matter. Appellant and a co-defendant, Sameech Rawls,
were tried before a jury for charges stemming from a shooting that killed
one person and wounded two others. On March 10, 2010, Appellant was
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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convicted of first degree murder and lesser offenses and sentenced to
mandatory life imprisonment. We affirmed Appellant’s judgment of sentence
on September 16, 2011. Commonwealth v. Martinez, 2399 EDA 2010, 34
A.3d 229 (Pa. Super. filed September 16, 2011) (unpublished
memorandum), and the Pennsylvania Supreme Court denied Appellant’s
petition for allowance of appeal. Commonwealth v. Martinez, 40 A.3d
1235 (Pa. 2012). On October 1, 2012, the United States Supreme Court
denied Appellant’s petition for writ of certiorari. Martinez v. Pennsylvania,
___ U.S. ___, 133 S.Ct. 369 (October 1, 2012).
On August 22, 2013, Appellant filed a pro se PCRA petition raising an
allegation of ineffective assistance of trial counsel. PCRA counsel entered his
appearance, and on May 9, 2014, filed a no-merit letter and a motion to
withdraw under Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
(en banc) and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).1 In
the no-merit letter, PCRA counsel averred that the PCRA petition was
untimely because it was filed more than one year after Appellant’s judgment
of sentence became final. PCRA counsel’s position on the timeliness was
premised on the following representation to the PCRA court:
In the present matter, [Appellant’s] Petition for Allocatur
was denied by the Pennsylvania Supreme Court on March 21,
2012. His judgment of sentence became final ninety days after
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1
PCRA counsel did not specifically cite Commonwealth v. Turner in his
no-merit letter or in his motion to withdraw as counsel.
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that date when [Appellant] did not file a Petition for Writ of
Certiorari to the United States Supreme Court. Thus, judgment
of sentence became final on or about June 21, 2012.
[Appellant’s] PCRA was filed on August 22, 2013. Thus,
[Appellant’s] PCRA was more than two months late and is
untimely.
Finley No-Merit Letter, 5/9/14, at 3.
The certified docket indicates that the trial court issued a Pa.R.Crim.P.
907 notice of intent to dismiss the petition on May 13, 2014. 2 On June 6,
2014, Appellant filed a pro se motion to change counsel and to amend his
PCRA petition. Appellant refuted PCRA counsel’s representation that his
petition was untimely by explaining that counsel failed to recognize that
Appellant had petitioned the United States Supreme Court for review of his
judgment of sentence, and the Supreme Court denied his petition on
October 1, 2012. Thus, Appellant averred that his PCRA petition was timely.
Appellant also requested leave to amend his PCRA petition to assert two
additional claims of ineffectiveness of counsel.
On June 27, 2014, the PCRA court granted a motion for continuance
citing, “Defense Request for Further Investigation to Petitioner’s Response to
907 Notice.” Docket, 6/27/14. By this language, we deduce that the PCRA
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2
The record certified on appeal is deficient in several respects. The
May 13, 2014 docket entry simply states, “Hearing”, and it is only by
reference to subsequent entries that we can ascertain that Pa.R.Crim.P. 907
notice was issued by the PCRA court on that date. Additionally, except for
the case-concluding May 15, 2015 order dismissing Appellant’s PCRA petition
and permitting PCRA counsel to withdraw, the record on appeal does not
include the text of any orders or notices filed by the PCRA court in these
proceedings.
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court viewed Appellant’s pro se motion to change counsel and amend his
petition as a permissible response to the PCRA court’s proposed dismissal of
his petition. See Pa.R.Crim.P. 907 (“The defendant may respond to the
proposed dismissal [of the petition] within 20 days of the date of the
notice.”). If a response is filed, the PCRA court “thereafter shall order the
petition dismissed, grant leave to file an amended petition, or direct that the
proceedings continue.” Id. A further continuance for the identical reason
was granted by the PCRA court on August 22, 2014.
On October 4, 2014, PCRA counsel filed an amended Finley letter and
a second motion to withdraw. Counsel acknowledged that his original
assertion that Appellant’s petition was untimely was incorrect and proceeded
to address the sole ground for collateral relief raised in Appellant’s original
pro se petition, i.e., that trial counsel was ineffective when he failed to
object to Rawls’s counsel’s cross-examination of one of the victims, Luis
Rodriguez, with a prior statement given by Rodriguez. PCRA counsel
concluded that Appellant’s claim was meritless.
On December 16, 2014, Appellant filed a pro se document in
opposition to the Finley letter challenging PCRA counsel’s legal assessment
of his original ineffectiveness claim and faulting counsel’s failure to address
the two additional assertions of trial counsel’s deficient representation raised
in Appellant’s motion to amend the petition. However, because Appellant
was represented by counsel, the prohibition on “hybrid representation”
precluded the PCRA court from ruling on the merits of this pro se motion.
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See Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007)
(describing counseled defendant’s pro se post-sentence motion as “a nullity,
having no legal effect”).
On January 16, 2015, the PCRA court sent Appellant a second
Pa.R.Crim.P. 907 notice of intent to dismiss his petition. Appellant filed a
pro se response to the Rule 907 notice, reiterating his position that PCRA
counsel’s no-merit letter failed to address his supplementary ineffectiveness
claims. On May 15, 2015, the PCRA court dismissed Appellant’s petition and
granted counsel’s motion to withdraw. Appellant timely appealed.
Appellant raises the following issues on appeal:
A. Was not trial counsel ineffective for failing to object to
the reading and showing of [the victim’s] out-of-court
statement?
B. Was not PCRA counsel ineffective for failing to raise
trial counsel[’s] [ineffectiveness] for failing to object to [the
prosecutor’s] questions, and Officers William Hunter[’s] and
Detective Gregory Santamala testimony concerning [the victim]?
C. Was not trial counsel ineffective for failing to file a
motion [in limine] to exclude the prejudicial .38 caliber revolver?
Appellant’s Brief at 6 (full capitalization omitted).
We begin by reference to the PCRA court’s Pa.R.A.P. 1925(a) opinion
wherein the court rejected Appellant’s assertion that trial counsel was
ineffective for failing to object to Rawls’s counsel’s cross-examination of
Rodriguez. PCRA Court Opinion, 3/11/16, at 4–6. The PCRA court did not
consider Appellant’s other allegations of ineffectiveness or mention
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Appellant’s response to the second 907 notice that cited PCRA counsel’s
failure to address these additional claims.
On December 5, 2016, the Commonwealth filed a letter in lieu of a
brief in this Court. Therein, the Commonwealth represented that it was:
constrained to agree with [Appellant] that his appointed
counsel’s “no merit” letter pursuant to Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) was defective
in that it did not address two of the three issues [Appellant]
attempted to raise pro se. Accordingly, the Commonwealth does
not oppose a remand for the appointment of counsel and the
filing of a new Finley letter or an amended petition.
Commonwealth’s Letter, 12/5/16, at unnumbered 1–2.
Given the general procedural deficiencies in these proceedings, the
PCRA court’s failure to rule on Appellant’s motion to amend his petition, and
the Commonwealth’s characterization of PCRA counsel’s no-merit letter as
defective, in the interest of justice we vacate the PCRA court’s May 15, 2015
order denying Appellant’s petition. Additionally, we direct the PCRA court to
appoint new counsel within fifteen days of the date of this memorandum for
the filing of a counseled PCRA petition, followed by the PCRA court’s review
in the first instance within forty-five days.
Order vacated. Case remanded for consistent proceedings.
Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2017
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Com. v. Martinez, E.
Combined Opinion