Opinion
82 EDA 2021 J-S36045-21
06-13-2022
COMMONWEALTH OF PENNSYLVANIA v. MACK DEBOIS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered November 24, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004319-2018
BEFORE: LAZARUS, J., KING, J., and COLINS, J.[*]
MEMORANDUM
COLINS, J.
Mack Debois (Appellant) appeals from the order dismissing his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. His counsel has filed an application to withdraw as counsel along with a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in lieu of a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Upon careful review, we deny counsel's application to withdraw, vacate the dismissal order, and remand for further proceedings.
Counsel is required to file a no-merit letter under Turner/Finley along with an accompanying application to withdraw in order to withdraw from representation during a collateral appeal. Commonwealth v. Kennedy, 266 A.3d 1128, 1130 n.4 (Pa. Super. 2021). Anders instead governs the procedure for withdrawing from representation on direct review. However, because the bar to withdraw under Anders is higher than under Turner/Finley, we have permitted such briefs to be filed in collateral appeals. See Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011) ("Because an Anders brief provides greater protection to a defendant, this Court may accept an Anders brief in lieu of a Turner/Finley letter.").
On February 7, 2019, Appellant pleaded guilty to third-degree murder in connection with the fatal beating of sixty-seven-year-old Mary Ellen Davis Pitman, who had been in an "on and off again relationship" with him. N.T. 2/7/19, 15-18. On the morning of February 13, 2018, paramedics found Ms. Pitman dead and barely clothed on her bed in her apartment in the 7100 block of Oxford Avenue in Philadelphia. Id. at 15. She had sustained multiple blunt impact injuries to her head, face, torso, and extremities, and exhibited signs of manual strangulation. Id. Appellant made multiple calls to 9-1-1 requesting emergency medical services in the area of Ms. Pitman's apartment, but he initially did not provide a correct address. Id. He was thereafter located at a hospital with self-inflicted wounds to his arms. Id. He confessed to detectives that he struck Ms. Pitman multiple times. Id. In exchange for his plea, the Commonwealth recommended a prison term of fifteen to thirty years and agreed to nolle prosse additional charges. Id. at 2-3.
The nolle prossed charges included robbery by infliction of serious bodily injury, involuntary deviate sexual intercourse by forcible compulsion, contempt for violation of a protection from abuse order, theft by receiving stolen property, possessing an instrument of crime, and theft by unlawful taking. Bills of Information, 6/19/18, 1-2.
During an oral guilty plea colloquy, Appellant acknowledged his review and understanding of the terms of a written guilty plea colloquy. N.T. 2/7/19, 4-9. Following the entry of his plea, the trial court imposed the agreed-upon sentence. Id. at 27. Appellant did not file a post-sentence motion or an appeal.
Appellant timely filed a pro se PCRA petition. He asserted that his plea counsel was ineffective for failing to "investigate and question the detective and arresting officers in addition to [investigating] the records of [the] interrogation at the police station, reviewing text messages or other evidence relative to [the] charges … [and] fail[ing] to properly investigate whether [he] was competent enough to plead guilty[, ] … comprehend his position as the accused[, ] and cooperate with counsel in creating a rational defense." Pro Se PCRA Petition, 9/26/19, §§ 6(A), 15. He also requested leave of court to file a motion for reconsideration of sentence. Id. at § 6(C). Counsel was appointed and filed a Turner/Finley no-merit letter and a motion to withdraw as counsel. Following the assignment of a new judge, the PCRA court issued a dismissal notice pursuant to Pa.R.Crim.P. 907. Appellant timely filed a response, citing his lack of contact with PCRA counsel and requesting the court to direct counsel to communicate with him and grant him leave to file an amended PCRA petition. Response to Rule 907 Notice, 10/20/20, at 1. The court thereafter dismissed his petition and granted PCRA counsel's motion to withdraw. Appellant timely filed a pro se notice of appeal.
Appellant incorrectly submitted his Notice of Appeal to this Court and we forwarded the filing to the trial court consistent with Pa.R.A.P. 905(a)(4).
After the PCRA court issued an order for a statement of issues complained of on appeal pursuant to Pa.R.A.P. 1925(b), it appointed present counsel. Rule 1925 Order, 6/22/21; Order, 6/29/21. Present counsel timely filed a Rule 1925(b) statement and subsequently filed copies of the Anders brief and counsel withdrawal application that are presently before this Court.We previously denied the withdrawal application because counsel had failed to provide this Court with a proof of service reflecting that he had forwarded to Appellant copies of the Anders brief, the counsel withdrawal application, and a copy of the Finley/Turner no-merit letter that was attached to the withdrawal application. Memorandum Opinion, 12/10/21, 2-3; Commonwealth v. Debois, 270 A.3d 1131 (Pa. Super. 2021) (table). Consistent with this Court's instructions, counsel refiled the pertinent documents along with a proof of service and a verified statement confirming his service of the filings to Appellant. Verified Statement, 12/11/21; Proof of Service, 12/11/21.
Counsel raised the following issue for review in the Rule 1925(b) statement: "The Defendant did not make a knowing, intelligent, and/or voluntary waiver of his trial rights when he plead[ed] guilty to murder of the third-degree on 2/7/19." Rule 1925(b) Statement, 7/6/21. We note that counsel has failed to comply with Pa.R.A.P. 2111(d) by not appending a copy of the Rule 1925(b) statement to the Anders brief.
On appeal, counsel presents two questions for review:
1. Are there any non-frivolous appealable issues?
2. Should appellate counsel be permitted to withdraw?
Appellant's Brief, at 4. Counsel asks to be granted leave to withdraw from representation because he concludes that there are no non-frivolous issues that can be raised on Appellant's behalf concerning the trial court's jurisdiction, the legality of Appellant's sentence, and the voluntariness of his plea. Id. at 7-8. The Commonwealth notes in its brief that Appellant's counsel "mentioned and analyzed [the] issues based on an incorrect belief that [this] Court had reinstated [Appellant's] direct [appeal] rights." Appellee's Brief, at 4 n.1. In any event, the Commonwealth concludes that the PCRA court properly dismissed Appellant's petition because the oral and written guilty plea colloquies supported the voluntariness of his plea and the colloquies, along with two prior mental health evaluations, demonstrated his competency to enter the plea. Id. at 6-9.
This Court's standard of review regarding an order dismissing a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007).
The parties and the PCRA court properly evaluate a direct challenge to the voluntariness of Appellant's plea and conclude that such a claim would be meritless. Here, the record belied any notion that Appellant entered his plea while incompetent. Competence to plead guilty requires a finding that the defendant comprehends the crime for which he stands accused, is able to cooperate with his counsel in forming a rational defense, and has a rational and factual understanding of the proceedings against him. Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007). The PCRA court aptly directs this Court's attention to the findings of two mental health evaluations, the second of which was filed within a month of the plea hearing, that reflect that Appellant had the requisite mental faculties to enter his plea. PCRA Court's Opinion, 8/12/21, 4-6 (excerpts referring to Appellant's ability to, inter alia, cooperate with his attorney to prepare a defense, understand the charges against him, and discuss the process of plea bargaining, "including the need to plead guilty as well as potentially receiving a longer sentence if found guilty at trial").
Moreover, Appellant made assertions in his plea colloquies that support the conclusion that he was competent to enter his plea. In his oral colloquy, Appellant agreed that, while he had been treated for depression, he had taken his medication for that condition on the morning of plea hearing and the use of that medication was not affecting his ability to understand what was happening at the hearing. N.T. 2/7/19, 7-8. He agreed that he understood what was transpiring in court, that he was there to enter a guilty plea, that he was waiving his right to a trial, that he was making the decision to enter the plea of his own free will, the elements of his offense, and the facts supporting his charge. Id. at 8-19. In his written colloquy, he made those same assertions and additionally agreed, inter alia, that he was not under the influence of drugs or alcohol and "had enough time to talk with [his] lawyer about the case." Written Guilty Plea Colloquy, 2/7/19, 1-3.
Appellant's affirmations as to his ability to understand the events of his plea hearing and participate in that hearing would have undermined any hypothetical collateral review claim alleging incompetency. See, e.g., Commonwealth v. Kasecky, 658 A.2d 822, 824 n.2 (Pa. Super. 1995) (Kasecky's testimony during his plea colloquy that medication did not diminish his ability to understand his plea rendered meritless his subsequent claim that medication rendered him incompetent); Commonwealth v. Jackson, 569 A.2d 964, 966 (Pa. Super. 1990) (holding that Jackson was not entitled to withdraw his plea of nolo contendere on grounds that he was taking medication where the court discussed prescription drugs with Jackson at the time he entered his plea and Jackson showed no signs that he did not understand the court's questions). Given the statements of record, there was no reasonable basis for plea counsel to halt the court proceedings to conduct an unnecessary investigation of Appellant's competency. See Commonwealth v. Willis, 68 A.3d 997, 1009-10 (Pa. Super. 2013) (guilty plea counsel did not provide ineffective assistance in failing to investigate and procure Willis's mental health records prior to a guilty plea hearing where, inter alia, Willis never gave counsel any reason to suspect she should examine his mental health history, Willis was able to communicate effectively, and Willis did not appear to be tranquilized or under the influence of any medication).
In any event, a general challenge to the voluntariness of Appellant's plea would have failed because his oral and written guilty plea colloquies covered all of the essential components for an voluntary plea: (1) the nature of the charge at issue; (2) the factual basis for the plea; (3) the right to a jury trial; (4) the presumption of innocence; (5) the permissible range for the sentence; and (6) the court's power to depart from the recommended sentence unless it accepted the parties' plea agreement. N.T. 2/7/19, 5-19; Written Guilty Plea Colloquy, 2/7/19, 1-3; see Commonwealth v. Pollard, 832 A.2d 517, 522-23 (Pa. Super. 2003) (detailing areas of inquiry required to establish a knowing and voluntary plea; Pa.R.Crim.P. 590, Comment.
The written guilty plea colloquy also included certifications from the trial prosecutor, Appellant's plea counsel, and the lower court judge, attesting to Appellant's ability to understand everything said and done at the plea hearing, and his ability to knowingly, intelligently, and voluntarily enter his plea. Written Guilty Plea Colloquy, 2/7/19, 4. The oral and written plea colloquies together established the voluntariness of the plea. See Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001) ("[W]here the record clearly demonstrates that a guilty plea colloquy was conducted, during which it became evident that the defendant understood the nature of the charges against him, the voluntariness of the plea is established") (citation omitted); Commonwealth v. Sauter, 567 A.2d 707, 708-09 (Pa. Super. 1989) (written guilty plea colloquy supplemented by an oral colloquy suggests most strongly that a defendant's plea was knowing and intelligent); see also Commonwealth v. Pier, 182 A.3d 476, 480 (Pa. Super. 2018) ("A person who elects to plead guilty is bound by the statements he makes in open court while under oath and he may not later assert grounds for withdrawing the plea which contradict the statements he made at his plea colloquy.") (citation omitted).
Despite the apparent voluntariness of the plea, we note that Appellant's Anders brief and the process by which the PCRA court dismissed Appellant's petition are problematic. As for the brief, present counsel incorrectly informs Appellant in the statement of jurisdiction and statement of the case that, following the filing of the notice of appeal, this Court reinstated his direct appeal rights. Appellant's Brief, at 3, 5. The record does not support that assertion. We previously retained jurisdiction while directing counsel to demonstrate proper service of the brief and its accompanying application to withdraw as counsel to Appellant, however, we never engaged in any merits analysis, let alone issued a grant of relief concerning a reinstatement of direct appeal rights.
The fact that counsel incorrectly asserted the reinstatement of Appellant's direct appeal rights and filed an Anders brief instead of Turner/Finley no-merit letter suggests that counsel was mistakenly under the belief that he was filing a brief for a direct appeal rather than a collateral appeal. His application to withdraw as counsel makes it abundant clear that counsel was mistaken in those respects. There, counsel notes that he advised Appellant as if the instant appeal were a direct appeal instead of a collateral appeal: "On 7/6/21, the undersigned spoke to the Defendant and explained that, pursuant to a guilty plea in Pennsylvania, the Defendant retains only three potential claims on direct appeal: jurisdiction, legality of sentence, and the voluntariness of the plea." Application to Withdraw as Counsel, 12/11/21, at 2.
Due to counsel's confusion as to proper procedural posture of this appeal, his Anders brief only addresses claims that Appellant could have raised on direct appeal (challenges to the trial court's jurisdiction, the legality of the sentence, and the voluntariness of the plea), and the conclusion section of the brief explicitly refers to this appeal as a direct appeal. Appellant's Brief, at 7, 9 ("[C]ounsel requests the Court [to] dismiss the Defendant's direct appeal as frivolous pursuant to Anders and allow counsel to withdraw.") (formatting changed). The brief thus fails to address Appellant's desired claim from his pro se petition and his response to the PCRA court's Rule 907 dismissal notice that plea counsel's ineffectiveness caused him to enter an unknowing plea, a claim that was legally distinct from a direct challenge to the voluntariness of the plea. See Commonwealth v. Derk, 913 A.2d 875, 883 n.6 (Pa. Super. 2006) ("[A]n ineffective assistance of counsel claim is a separate legal issue distinct from the underlying substantive claim for which counsel allegedly had provided ineffective assistance.").
Addressing a direct review challenge to the voluntariness of a plea on collateral appeal would be purely an academic endeavor because such a claim would be unreviewable on PCRA review because the claim could have been raised earlier in a post-sentence motion and then reviewed in a direct appeal, and defendant waived such a claim by failing to preserve it in that fashion. See 42 Pa.C.S. § 9544(b) ("For purposes of the subchapter, an issue 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 postconviction proceeding."); see also Commonwealth v. Reid, 117 A.3d 777, 783 (Pa. Super. 2015) (reviewing the voluntariness of a plea on direct review); Commonwealth v. Lincoln, 72 A.3d 606, 611 (Pa. Super. 2013) (holding that Lincoln failed to preserve for direct review his claim that his guilty plea was involuntary by not raising it either by objecting during his plea colloquy or filing a post-sentence motion to withdraw the plea).
When post-conviction relief counsel opines that a petitioner's appeal is without a merit and counsel seeks to withdraw,
Turner/Finley counsel must review the case zealously [and] submit a no-merit [brief] to this Court, detailing the nature and extent of counsel's diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw. … Counsel must also send to the petitioner: (1) a copy of the no-merit [brief]; (2) a copy of counsel's petition to withdraw; and (3) a statement advising petitioner of the [immediate] right to proceed pro se or by new counsel.Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (quotation marks, citations, and original formatting omitted). If counsel satisfies the technical requirements of Turner/Finley, then this Court must conduct its own review of the merits of the case. Id. Here, we cannot proceed with meaningful review of the merits of the case because counsel has failed to review the ineffectiveness claims that Appellant wanted to have reviewed below.
Moreover, by incorrectly advising in the brief that Appellant's direct appeal rights have been reinstated, counsel has misrepresented the correct stage of these appellate proceedings. There is no indication from the record that Appellant has chosen to proceed pro se in response to counsel's Anders brief, however, that may be because Appellant is now under the mistaken belief from the Anders brief and counsel's application to withdraw that this case is on direct review and he still has the right to pursue another round of timely post-conviction review where he could develop an evidentiary record for his ineffectiveness claims. That is not the case.
An affirmance in this instance would effectively close off any avenue for additional state post-conviction collateral review. That result would forever cut off any opportunity for Appellant to create an evidentiary record for his ineffective claims in light of the United States Supreme Court's recent decision in Shinn v. Ramirez, ___ S.Ct. ___, 2022 WL 1611786 (U.S., filed May 23, 2022), which held that a federal court may not conduct an evidentiary hearing or allow new evidence to be considered in connection with a federal habeas petitioner's claim of ineffective state post-conviction review counsel.
We are cognizant that present counsel did not represent Appellant before the PCRA court. Prior post-conviction review counsel addressed Appellant's ineffectiveness claims in a Turner/Finley letter below but, in that filing, PCRA counsel did not demonstrate any attempt to ascertain the extent of plea counsel's investigation of the case and the nature of his advice to Appellant in connection with the entry of the plea. Instead, PCRA counsel merely concluded that based on Appellant's assertions in his plea colloquy, including his agreement to his satisfaction with plea counsel, that counsel "would have [had] no basis for interviewing arresting officers and the detective that took [Appellant's] statement prior to trial." Turner/Finley Letter, 7/28/20, 5. PCRA counsel in those respects failed to appreciate that the focus of any ineffectiveness claim in connection with the entry of Appellant's plea would have been the advice plea counsel offered to Appellant and whether it was constitutionally sound. See Pier, 182 A.3d at 479 ("Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence of attorneys in criminal cases.") (citation omitted); Commonwealth v. Johnson, 179 A.3d 1153, 1160 (Pa. Super. 2018) ("[W]here the claim is that counsel ineffectively advised the defendant to accept a plea, the question is simply whether that advice is constitutionally sound."). By entirely failing to address plea counsel's advice to Appellant, or even ascertain it, PCRA counsel failed to properly address the ineffectiveness claims raised by Appellant.
In addition to concluding that present counsel fails to review Appellant's desired ineffectiveness claims and that PCRA counsel did not properly review those claims to begin with, we find that the largest impediment to our ability to conduct review is the process by which the court below dismissed Appellant's petition. Here, Appellant asserted in his response to the court's Rule 907 dismissal notice that PCRA counsel had never contacted him following the filing of the pro se petition and that there were "many issues that [he] wished to discuss" concerning an ineffectiveness claim concerning the entry of his plea. Pro Se Response to Rule 907 Notice, 10/20/20, ¶¶ 2-3. Based on that alleged lack of communication, Appellant requested, inter alia, leave of court to file an amended PCRA petition:
WHEREFORE: This petitioner/defendant requests that this honorable court grant a motion to compel counsel to communicate with him first to at the least go over the claims he has for review
(the initial PCRA this petitioner filed was rudimentary because petitioner believed counsel would be assigned that would speak with him).
Also[, ] petitioner request[s] that this court grant an extension to file a proper objection and/or amended PCRA [petition] after counsel communicates with this petitioner.
At the very least[, a]llow this petitioner to file an amended PCRA [petition] as pro se should counsel wish not to communicate.Id. at 1. The PCRA court failed to issue a ruling on that request for leave to file an amended petition or address it in its dismissal order and in its opinion. We agree that Appellant is entitled to relief on that basis.
Pennsylvania Rule of Criminal Procedure 905 provides:
Rule 905. Amendment and Withdrawal of Petition for Post-Conviction Collateral Relief
(A) The judge may grant leave to amend or withdraw a petition for post-conviction collateral relief at any time. Amendment shall be freely allowed to achieve substantial justice.
(B) When a petition for post-conviction collateral relief is defective as originally filed, the judge shall order amendment of the petition, indicate the nature of the defects, and specify the time within which an amended petition shall be filed. If the order directing amendment is not complied with, the petition may be dismissed without a hearing.
…
Comment: "Defective," as used in paragraph (B), is intended to include petitions that are inadequate, insufficient, or irregular for any reason; for example, petitions that lack particularity; petitions that do not comply substantially with Rule 902; petitions that appear to be patently frivolous; petitions that do not allege facts that would support relief; petitions that raise issues the defendant did not preserve properly or were finally determined at prior proceedings.
…Pa.R.Crim.P. 905(A)-(B), Comment. This rule provides PCRA petitioners with "a legitimate opportunity to present their claims to the PCRA court in a manner sufficient to avoid dismissal due to a correctable defect in claim pleading or presentation." Commonwealth v. McGill, 832 A.2d 1014, 1024 (Pa. 2003). "Adherence to this liberal standard for amendment is essential because criminal defendants may have just one opportunity to pursue collateral relief in state court." Commonwealth v. Crispell, 193 A.3d 919, 929 (Pa. 2018).
The PCRA court in this case exercised no discretion when it failed to address Appellant's motion to amend his petition. Even if PCRA counsel did not want to adopt and develop the claims raised in Appellant's pro se petition, in the absence of an amended PCRA petition, Appellant's bald pleading in his pro se petition failed to adequately develop and preserve any substantive claims for this Court's review. Accordingly, we conclude that, at a minimum, Appellant has a non-frivolous issue for appeal concerning the lack of a ruling on his request for leave to amend his PCRA petition. On that basis, in addition to the stated issues with counsel's Anders brief, we must deny counsel's application to withdraw from representation. The only option available to this Court, at this juncture, is to remand this case back to the PCRA court, so that the court may consider Appellant's motion for leave to amend his petition in accordance with the liberal standard of Rule 905(A). Cf. Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011) ("[W]here an indigent, first- time PCRA petitioner was denied his right to counsel-or failed to properly waive that right-this Court is required to raise this error sua sponte and remand for the PCRA court to correct that mistake."). We are thus constrained to vacate the order dismissing Appellant's PCRA petition, and remand for further proceedings during which the PCRA court may either appoint new counsel for Appellant or order present counsel to either pursue the amended petition sought by Appellant or fully comply with the requirements of Turner/Finley.
Counsel withdrawal application denied. Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.