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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
COREY WILLIS FERGUSON, : No. 1966 MDA 2016
:
Appellant :
Appeal from the PCRA Order, November 28, 2016,
in the Court of Common Pleas of York County
Criminal Division at No. CP-67-CR-0006179-2014
BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 07, 2017
Corey Willis Ferguson appeals, pro se, from the order of
November 28, 2016, denying his PCRA1 petition. We vacate and remand for
appointment of new counsel.
The PCRA court has summarized the procedural history of this matter
as follows:
On July 7, 2015, Appellant pled guilty to
Count 1 Fleeing or Attempting to Elude an Officer[2]
and to Count 10 Driving while Operating Privilege
Suspended or Revoked.[3] On Count 1, the
Appellant was sentenced to a minimum of 11 months
and 15 days to a maximum of 23 months[’]
imprisonment. On Count 10, Appellant was
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
75 Pa.C.S.A. § 3733(a).
3
75 Pa.C.S.A. § 1543(a).
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sentenced on September 29, 2015 to a minimum of
6 months to a maximum 6 months[’] imprisonment.
The counts were to run consecutive for an aggregate
total of 17½ months to 23 months. A motion for
reconsideration of sentence was filed on October 5,
2015, which was cancelled and then later re-filed on
May 26, 2016. Following a hearing, this Court
denied the motion. A [PCRA] Petition was filed on
July 18, 2016, which was denied on November 28,
2016. Appellant filed the notice of appeal on
December 2, 2016. On December 22, 2016, the
Appellant filed the Statement of Matters Complained
of on Appeal.
PCRA court opinion, 4/7/17 at 1-2.
The record reflects that on July 18, 2016, appellant filed a timely
pro se PCRA petition, his first. Therein, appellant alleged that trial counsel,
William H. Graff, Esq., was ineffective for failing to file a pre-trial
suppression motion and in connection with the entry of an invalid and
involuntary plea. Appellant requested appointment of PCRA counsel.
On July 26, 2016, George H. Margetas, Esq., was appointed to
represent appellant in the PCRA proceedings. Attorney Margetas did not file
a counseled amended petition on appellant’s behalf. On November 7, 2016,
an order was entered granting appellant in forma pauperis status and
scheduling a PCRA hearing for November 28, 2016. In addition, the
November 7 order specifically directed PCRA counsel to file either an
amended petition or a petition to withdraw and Turner/Finley “no merit”
letter:
Appointed counsel is directed to review the record
and the pro se Motion filed by [appellant] and,
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WITHIN 30 DAYS of the date of this Order, file an
Amended Motion for Post-Conviction Collateral Relief
that specifically sets forth the grounds for relief and
specific averments of fact in support thereof, or a
Finley Letter, if appropriate. See Pa.R.Crim.P.
902(A)(11) and 902(A)(12).
Order, 11/7/16 at 2 (capitalization in original; some emphasis added).
Attorney Margetas did not file an amended petition for appellant, nor
did he file a petition to withdraw accompanied by a Turner/Finley4 no-merit
letter explaining why the issues appellant wished to raise were frivolous. An
evidentiary hearing was held on November 28, 2016, at which both
appellant and trial counsel testified. Appellant was still represented by
Attorney Margetas at this point. Prior to calling appellant to the stand,
Attorney Margetas informed the court that he did not believe appellant’s
petition had any merit: “He is saying that Mr. Graff was ineffective because
he failed to file a suppression motion, which I will note for the Court in my
review of it I also do not see any merit in that claim, but Mr. Ferguson wants
to pursue it.” (Notes of testimony, 11/28/16 at 2.) Attorney Margetas also
opined that Attorney Graff had reasons not to file a suppression motion.
(Id. at 4.) Appellant protested that Attorney Margetas was not providing
effective representation but was cut off by the PCRA court:
THE COURT: He’s been appointed to represent you,
sir.
4
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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[APPELLANT]: Okay, but he is not doing what I
asked him to do. He hasn’t came [sic] and see [sic]
me.
THE COURT: He is an attorney, you are not, and he
is doing what an attorney does. I don’t know what
you have asked him to do, but if you asked him to
jump out the window, he is not going to.
[APPELLANT]: I asked him to do something. He is
telling me it doesn’t have merit.
THE COURT: Sir, do you want to have this hearing?
[APPELLANT]: Yes, I do.
THE COURT: Or do you want me to send you back
downstairs?
[APPELLANT]: I’m trying --
THE COURT: No, you are interrupting everything. I
will explain how this works. He is required by the
rules if he believes as an attorney to tell the Court
that he thinks there’s no merit to your case. He is
telling me that as an attorney he thinks there is no
merit to your case. The real person that decides if
there is merit to your case is who?
[APPELLANT]: You.
THE COURT: Got it. Now, you want to have your
hearing. He is saying my client still wants to have
this hearing. So he is advancing your cause as you
have requested, correct?
[APPELLANT]: Okay. Yes, he is.
THE COURT: All right. So knock it off. Let’s have
the hearing.
Notes of testimony, 11/28/16 at 2-4.
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Following the testimony, the PCRA court denied appellant’s petition
and granted Attorney Margetas permission to withdraw, despite the fact that
Attorney Margetas had not formally petitioned to withdraw and did not
comply with the dictates of Turner/Finley and their progeny. (Id. at
44-45.)
Thereafter, appellant filed an amended pro se PCRA petition on
November 29, 2016, followed by a pro se notice of appeal on December 2,
2016. Appellant was ordered to file a concise statement of errors
complained of on appeal within 21 days pursuant to Pa.R.A.P. 1925(b), and
timely complied by filing a pro se Rule 1925(b) statement on December 22,
2016. On April 7, 2017, the PCRA court issued a Rule 1925(a) opinion.
In his pro se brief on appeal, appellant challenges the legality of his
sentence. Appellant argues that his flat six-month sentence for driving
under suspension violated Section 9756 of the Sentencing Code which
provides that in imposing total confinement, the trial court shall specify a
maximum period, as well as a minimum sentence that does not exceed
one-half of the maximum. 42 Pa.C.S.A. § 9756(a), (b)(1); see
Commonwealth v. Postie, 110 A.3d 1034, 1044 (Pa.Super. 2015)
(defendant’s flat four-month sentence for summary offense of driving while
operating privilege is suspended or revoked was illegal). The PCRA court
acknowledged that appellant’s sentence was illegal and on April 5, 2017,
issued an order modifying appellant’s sentence on Count 10, driving under a
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suspended license, to three to six months’ incarceration. (PCRA court
opinion, 4/7/17, Exhibit 1.)
The Commonwealth claims that any other issues raised in appellant’s
pro se Rule 1925(b) statement are waived, with the exception of the validity
of appellant’s guilty plea, because they were not raised in his pro se PCRA
petition and/or not argued in his pro se brief on appeal. This position is
simply untenable because appellant was not afforded his right to effective
representation on a first PCRA petition.
Defendants have a general rule-based right to
the assistance of counsel for their first PCRA Petition.
Pa.R.Crim.P. 904(C); 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. “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).
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Commonwealth v. Cherry, 155 A.3d 1080, 1082-1083 (Pa.Super. 2017)
(footnote omitted).
“Once appointment has been made,
counsel may seek to withdraw, after a
thorough review of the record has
been made, where non-frivolous issues
justifying the pursuit of post-conviction
collateral relief are lacking.”
[Commonwealth v. Kaufmann, 592
A.2d 691, 698 (Pa.Super. 1991)]
(emphasis added) [, (citing Finley,
supra at 214),] ([stating] post-
conviction counsel may seek to withdraw
by filing “no-merit” letter detailing the
nature and extent of his review, listing
the issues raised by the petitioner, and
explaining why petitioner’s issues are
meritless). Counsel may not, however,
accept appointment, thereby
engendering the reliance of both his
client and the court, without
undertaking of record either to
advance his client’s claims or certify
their lack of merit.
In addressing the petitioner’s right to
counsel under the precursor to the PCRA,
we admonished that “[w]hen appointed
counsel fails to amend an inarticulately
drafted pro se [post conviction] petition,
or fails otherwise to participate
meaningfully, this court will conclude
that the proceedings were, for all
practical purposes, uncounseled and in
violation of the representation
requirement....” [Commonwealth v.
Ollie, 304 Pa.Super. 505, 450 A.2d
1026, 1028 (Pa.Super. 1982)]; [(quoting
Commonwealth v. Sangricco, 490 Pa.
126, 415 A.2d 65 (1980))] (internal
quotation marks omitted). Both this
Court and our Supreme Court have
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recognized that a post conviction petition
is effectively uncounseled under a variety
of circumstances whenever omissions of
record demonstrate that counsel’s
inaction “deprived the petitioner ‘the
opportunity of legally trained counsel to
advance his position in acceptable legal
terms.’” Sangricco, supra at 133, 415
A.2d at 68 [(quoting Commonwealth v.
Fiero, 462 Pa. 409, 413, 341 A.2d 448,
450 (1975)].
[Commonwealth v. Hampton, 718 A.2d 1250,
1252-1254 (Pa.Super. 1998)] (emphasis added).
“This right to representation exists ‘throughout the
post-conviction proceedings, including any appeal
from disposition of the petition for post conviction
relief.’” Commonwealth v. Quail, 729 A.2d 571,
573 (Pa.Super. 1999) (quoting Pa.R.Crim.P. 904(E)).
Commonwealth v. Karanicolas, 836 A.2d 940, 946-947 (Pa.Super. 2003)
(emphasis in Karanicolas; most brackets in original; footnote omitted).
“The right to counsel on an indigent petitioner’s first PCRA petition is not
limited to the mere naming of an attorney. To have any meaning, the rule
also requires appointed counsel to provide meaningful representation.”
Commonwealth v. Perez, 799 A.2d 848, 852 (Pa.Super. 2002), citing
Hampton, supra.
Therefore, where an appellant’s right to
representation has “been effectively denied by the
action of court or counsel, the petitioner is entitled to
a remand to the PCRA court for appointment of
counsel to prosecute the PCRA petition. The remand
serves to give the petitioner the benefit of competent
counsel at each stage of post-conviction review.”
Id., quoting Commonwealth v. Kenney, 732 A.2d 1161, 1164 (Pa. 1999).
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Here, as in Cherry, appointed PCRA counsel neither filed an amended
PCRA petition on appellant’s behalf, nor certified that appellant’s claims
lacked merit and sought leave to withdraw pursuant to Turner/Finley.
Cherry, 155 A.3d at 1083. Appellant did not ask to proceed pro se, and
the PCRA court did not hold a waiver-of-counsel hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). Id. Instead,
Attorney Margetas basically sandbagged his client at the November 28, 2016
PCRA evidentiary hearing, asserting that appellant’s claims were meritless
despite never having actually petitioned to withdraw as counsel. (Notes of
testimony, 11/28/16 at 2-4.) Appellant was effectively denied the
assistance of counsel on his first PCRA petition.
For these reasons, it is necessary to vacate the order denying
appellant’s PCRA petition and remand for appointment of new counsel within
30 days. Appellant’s new counsel shall be permitted to file an amended
PCRA petition or a Turner/Finley letter.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2017
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Com. v. Ferguson, C.
Combined Opinion