J-A09011-24
2024 PA Super 244
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS FRANCIS COOK :
:
Appellant : No. 510 WDA 2023
Appeal from the PCRA Order Entered April 12, 2023
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0018195-2009
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J
OPINION BY DUBOW, J.: FILED: October 25, 2024
Appellant, Thomas Francis Cook, appeals pro se from the April 12, 2023
order entered in the Allegheny County Court of Common Pleas denying his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-46, as meritless. After careful review, we are constrained to find that
the PCRA court erred in concluding that Appellant forfeited his right to counsel
for his first PCRA petition and thus, denying his request to appoint new counsel
to represent Appellant. We, thus, vacate the PCRA court’s order and remand
with instructions.
A detailed recitation of the facts and convoluted procedural history of
this matter is immaterial to our disposition, so we only provide the facts that
are relevant to our analysis. On February 1, 2011, Appellant entered an open
guilty plea to one count each of Burglary, Aggravated Assault, and Kidnapping
J-A09011-24
for Ransom. In exchange for his plea, the Commonwealth withdrew a Robbery
charge and agreed that it would not seek the imposition of a mandatory
“second strike” sentence. That same day, the trial court sentenced Appellant
to a term of 7½ to 212/3 years of incarceration followed by 3 years of
probation.1, 2 Kathleen Miskovich, Esquire, represented Appellant at the guilty
plea/sentencing hearing. Appellant did not file a post-sentence motion or
direct appeal from his judgment of sentence. His judgment of sentence, thus,
became final on March 3, 2011.
On January 3, 2012, the lower court clerk docketed a pro se letter from
Appellant as a “Request for Sentencing Order” because Appellant sought, inter
alia, credit for time served. Pro Se Letter, 1/3/12, at 1 (unpaginated). The
court took no action in response to this letter.
____________________________________________
1 The court sentenced Appellant to a term of 5 to 162/ years of incarceration
3
for his Aggravated Assault conviction and a consecutive term of 2½ to 5 years
for his Kidnapping for Ransom conviction. Appellant received a consecutive
3-year probationary sentence for his Burglary conviction. As part of his
sentence, the court also ordered Appellant to comply with DNA registration.
2 At the hearing, the trial court also sentenced Appellant at two other docket
numbers. In particular, Appellant pleaded guilty to Burglary at Docket No
18198-2009 and the court sentenced him to 9 to 18 months of incarceration
and credited him with 274 days of time served in Allegheny County Jail from
November 30, 2009, to August 20, 2010. Appellant also pleaded guilty to
Escape at Docket No. 169-2010 and the court sentenced him to 6 to 12
months of incarceration and the court credited him with 156 days for time
served from August 30, 2010, to February 1, 2011. Appellant’s total
aggregate sentence was, thus, 105 months to 290 months of incarceration
followed by 3 years of probation.
-2-
J-A09011-24
More than one year later, on August 29, 2013, Appellant filed a pro se
“Motion for Time Credit and Corrected Commitment” requesting that the trial
court issue an order directing the clerk of courts to award him credit for time
served from December 4, 2009, to February 17, 2011.3, 4 The court took no
action on this motion.
On January 29, 2021, Appellant pro se filed the instant PCRA petition
raising claims that his guilty plea was unlawfully induced and that his plea
counsel was ineffective for advising him to plead guilty. At this point, the
PCRA court, determined that the pro se letter Appellant sent to the court in
2012 was, in fact, a timely first PCRA petition because it raised a claim
cognizable under the PCRA. Because that 2012 “petition” remained
outstanding on its docket, the court deemed the instant PCRA petition to be
an amendment to the “petition” filed in 2012, and appointed Jacob C. McCrea,
Esquire to represent Appellant.
On September 23, 2021, Attorney McCrea filed an amended PCRA
petition in which Appellant contended that plea counsel was ineffective
____________________________________________
3 Although Attorney Miskovich suggested at Appellant’s sentencing hearing
that Appellant “has over a year and 73 days that could be credited,” N.T.
Sentencing, 2/1/11, at 11, neither the notes of testimony nor the sentencing
documents in the certified record reflect that the court awarded Appellant any
credit for time served.
4 Over the course of the next 9 years, Appellant filed numerous pro se letters
and petitions, and motions the dispositions of which are not relevant to this
appeal.
-3-
J-A09011-24
because she misrepresented to Appellant that he would be subject to a
“second strike” mandatory minimum sentence if he did not plead guilty.
On February 28, 2022, the Commonwealth filed an answer to Appellant’s
amended PCRA petition in which it argued that Appellant’s plea counsel had
not been ineffective because, based on the state of the “second strike” law at
the time of Appellant’s plea, counsel properly advised Appellant that he would
be subject to a “second strike” minimum sentence if he proceeded to trial and
was convicted.
On March 9, 2022, the PCRA court issued a Rule 907 notice indicating
that it intended to dismiss as meritless the instant PCRA petition without a
hearing.
On March 28, 2022, Appellant pro se filed a motion for substitution of
counsel averring that he and Attorney McCrea had a “severe breakdown in
trust and communication” and that Attorney McCrea is “not willing and/or able
to provide effective counsel” to Appellant. Motion, 3/28,22, at ¶ 2. Appellant
asserted that Attorney McCrea had sent him a letter in which Attorney McCrea
indicated that he would not file a supplement to the amended PCRA petition
as Appellant requested. Accordingly, Appellant requested the appointment of
new counsel and leave to further amend his PCRA petition in response to the
Commonwealth’s answer to Appellant’s petition.
On April 8, 2022, Attorney McCrea filed a motion to withdraw as counsel
and appoint new counsel. He explained in the motion that, following his review
of the Commonwealth’s answer to the amended PCRA petition and subsequent
-4-
J-A09011-24
research pertaining to the “second strike” statute’s applicability to Burglary
convictions, Attorney McCrea now believed that Appellant’s claim that his plea
counsel was ineffective for advising Appellant to plead guilty to avoid being
subject to a “second strike” mandatory minimum sentence did not have
arguable merit. Attorney McCrea did, however, find other issues Appellant
sought to raise “not plainly frivolous as a matter of law.” Motion to Withdraw,
4/8/22, at ¶ 7. Due to the deterioration of the attorney-client relationship,
Attorney McCrea sought to withdraw. However, because Appellant sought to
raise other “not plainly frivolous” issues, Attorney McCrea asked the court to
appoint Appellant new counsel.
On July 12, 2022, the PCRA court held a hearing on the motion to
withdraw at which both Attorney McCrea and Appellant testified. Throughout
his testimony, Appellant vehemently disagreed with Attorney McCrea’s legal
analysis of the pertinent case law and statutes. At the conclusion of
testimony, the PCRA court found that there had been an “irretrievable
breakdown” in the relationship between Appellant and Attorney McCrea and,
therefore, it granted Attorney McCrea’s motion to withdraw as counsel. N.T.
Hr’g, 7/12/22, at 41, 49-50.
The Court also found that “based on his conduct, [Appellant]
demonstrated that he wishes to represent himself and thinks that he can do
a better job than his attorney.” Id. at 50. Appellant objected to this
characterization and denied that he forfeited his right to counsel. The PCRA
court then reiterated that “[b]y his conduct [Appellant has] indicated that he
-5-
J-A09011-24
would not be willing to cooperate with any future attorney who disagrees with
his own analysis of case law.” Id. Appellant again objected, noting that the
court’s ruling was “highly inappropriate.” Id. at 51. The PCRA court did not
appoint Appellant counsel but permitted Appellant to pro se file an amended
PCRA petition. We highlight the fact that although Appellant engaged in
oppositional and intransigent conduct during the hearing, his conduct was not
violent and did not delay the proceedings.
On July 21, 2022, Appellant filed a motion for reconsideration of the
PCRA court’s order denying Appellant the appointment of new counsel. The
PCRA court denied the motion on August 1, 2022.
On October 17, 2022, Appellant pro se filed an amended PCRA petition.
On January 3, 2023, the Commonwealth filed an answer to the amended PCRA
petition in which it argued that most of Appellant’s ineffectiveness claims
lacked merit but conceded that Appellant’s ineffective claim that trial counsel
failed to file a post-sentence motion or direct appeal might have merit.
On April 6, 2023, the PCRA court held a hearing on Appellant’s amended
petition at which Appellant represented himself. Appellant and plea counsel
testified. On April 12, 2023, the PCRA court dismissed Appellant’s petition as
meritless.
This timely appeal followed. Both Appellant and the PCRA court
complied with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
-6-
J-A09011-24
1. Did the PCRA [c]ourt abuse its discretion/commit an error of
law when it determined that Appellant had forfeited his right to
counsel for doing nothing more than raise claims of PCRA
[c]ounsel McCrea’s ineffectiveness at the first opportunity to do
so?
2. Did the PCRA [c]ourt abuse its discretion/commit an error of
law when it determined that PCRA [c]ounsel McCrea wasn’t
ineffective counsel for failing to raise claims of plea counsel
Miskovich’s ineffectiveness as requested by Appellant?
3. Did Appellant’s right to counsel reattach pursuant to
Pa.R.Crim.P. 904(D) once the PCRA [c]ourt determined that an
evidentiary hearing was required regarding Appellant’s pro se
claims?
4. Was plea counsel Miskovich ineffective counsel in advising
Appellant to accept the Commonwealth’s plea offer in order to
avoid the mandatory sentencing provisions of 42 Pa.C.S. §
9714(a)(1) when Appellant did not qualify for said mandatory
sentences, resulting in an unknowing plea and manifest
injustice?
5. Was plea counsel Miskovich ineffective for failing to seek
withdrawal of Appellant’s guilty plea once the Commonwealth
violated its agreement not to make a sentencing
recommendation?
Appellant’s Brief at 2-3 (renumbered).
In his first issue, Appellant challenges the PCRA court’s determination
that, by his conduct, Appellant forfeited his right to counsel and thus, the
PCRA court erred in refusing to appoint new counsel.
An indigent petitioner has a rule-based right to counsel to represent him
on his first PCRA petition. Pa.R.Crim.P. 904(C). An indigent petitioner,
however, may forfeit the right to counsel if the petitioner engages in
-7-
J-A09011-24
“extremely serious misconduct or extremely dilatory conduct.”
Commonwealth v. Staton, 120 A.3d 277, 282, 286 (Pa. 2015).5
When determining whether a defendant has engaged in “extremely
dilatory conduct” to justify the forfeiture of the right to counsel, the courts
have addressed as a threshold issue whether a defendant’s misconduct
resulted in a delay in the proceedings. For example, the Supreme Court has
found that a defendant forfeited his right to counsel when the defendant had
the financial ability to retain private counsel, fired several lawyers that he had
hired, was given over eight months to prepare for trial, and then appeared at
trial without an attorney or an explanation as to why counsel was not present.
Commonwealth v. Lucarelli, 971 A.2d 1173, 1179 (Pa. 2009). The
Pennsylvania Supreme Court held that “where a defendant’s course of conduct
demonstrates his [] intention not to seek representation by private counsel,
despite having the opportunity and financial wherewithal to do so, a
determination that the defendant be required to proceed pro se is mandated
because that defendant has forfeited the right to counsel.”
Id. at 1179.
____________________________________________
5 In Staton, the Supreme Court found that the trial court properly found that
the defendant forfeited his right to counsel when, during a hearing, the
defendant “stood up from his chair and swung his shackled arms suddenly and
violently, striking [PCRA counsel] in the head, eyes, and nose, with such force
that it propelled [counsel] to the floor and momentarily knocked him
unconscious.” Staton,
120 A.3d at 282. The Supreme Court concluded that
Appellant engaged in extremely serious misconduct towards his attorney and
thus, forfeited his right to counsel.
Id. at 285. There is no suggestion that
Appellant engaged in any violent conduct towards his counsel, so we need not
address whether he engaged in “extremely serious misconduct.”
-8-
J-A09011-24
Similarly, this Court found that the defendant engaged in “extremely
dilatory conduct” and thus, forfeited his right to counsel in Commonwealth
v. McLendon, 293 A.3d 658 (Pa. Super. 2023), where the defendant’s
“refusal to cooperate with counsel and the trial court persisted throughout the
trial proceeding . . . [which resulted in] unnecessarily drawn[-]out proceedings
brought about by a defendant’s refusal to cooperate with counsel.”
Id. at
668. In particular, the defendant’s “dilatory conduct spanned eleven months.”
Id.
In contrast, the Superior Court found that a trial court erred in
concluding that a defendant forfeited his right to counsel because “although
[the defendant’s] initial disagreement with the Public Defender’s Officer
resulted in the Public Defender’s withdrawing from representation. . . [the
defendant] . . . maintained the same court-appointed counsel through trial
and sentencing.” Commonwealth v. Fill, 202 A.3d 133, 139 (Pa. Super.
2019). This Court concluded that “there is no evidence, for example, that [the
defendant] failed to seek private counsel or delayed in doing so.”
Id. at 140.
With these cases in mind, we review the PCRA court’s determination
that Appellant engaged in such “extremely dilatory behavior” that Appellant
forfeited his right to counsel. We review the decision whether to appoint new
counsel for an abuse of discretion. Commonwealth v. Spotz, 756 A.2d
1139, 1150 (Pa. 2000).
The PCRA court found that Appellant engaged in “extremely dilatory
conduct” when he made a “frivolous attack on his counsel” and filed a
-9-
J-A09011-24
“substantial number of pro se filings while represented by counsel.” PCRA Ct.
Op., 8/23/23, at 5. At the hearing on counsel’s motion to withdraw, Appellant
argued vehemently that his analysis of the case law was correct and made
numerous allegations that Attorney McCrea was ineffective and refused to
accept Appellant’s argument because counsel “never put the effort in doing
the research or anything.” N.T. Hr’g at 15-20.
Attorney McCrea testified about the significant time and effort he spent
reviewing Appellant’s argument and his reasoning for rejecting Appellant’s
position. Id. at 4-6. Attorney McCrea concluded that he could not “in good
conscience” make the arguments that Appellant was asserting. Id. at 6.
The PCRA Court, after listening to Appellant’s interpretation of the case
law as well as Attorney McCrea’s, concluded that Attorney McCrea “has done
all of the research and fully investigated the merits of any arguments that he
might make[.]” Id. at 41. The PCRA court attempted to explain to Appellant
the reasons why his interpretation of case law was incorrect. Id. at 33-34.
Appellant, however, was unpersuaded and concluded that Attorney McCrea
“does not have a good grasp of these arguments.” Id. at 37.
The PCRA court granted Attorney McCrea’s motion to withdraw as
counsel. The PCRA court also denied Appellant’s motion for substitution of
counsel, concluding that “no counsel could represent Appellant because he
would fight with any attorney who disagreed with [his] understanding and
interpretation of the law.” PCRA Ct. Op. at 5.
- 10 -
J-A09011-24
The record confirms the PCRA’s court finding that Appellant’s
intransigent and obdurate conduct reflected Appellant’s uncompromising view
that he had a better understanding of legitimate legal arguments than his well
respected and experienced counsel. This conduct, however, did not result in
a delay of the criminal proceedings. In fact, Appellant pro se filed an Amended
PCRA petition according to the court’s deadline and attended the hearing on
the PCRA petition. Our review of the relevant case law indicates that our
courts have included in the definition of “extremely dilatory conduct” the
requirement that the defendant’s conduct created some delay in the criminal
proceedings. Because the record reflects that Appellant’s conduct did not
delay the criminal proceedings, we are constrained to find that the trial court
abused its discretion in finding that Appellant forfeited his right to counsel and
denying Appellant’s motion for substitute counsel.6, 7
____________________________________________
6 Appellant’s second issue on appeal pertains to the PCRA court’s
determination that PCRA counsel McCrea was not ineffective in his
representation of Appellant. Appellant did not, however, include this issue in
his June 12, 2023 Rule 1925(b) statement or his July 17, 2023 supplemental
Rule 1925(b) statement. While generally we would find that Appellant waived
this issue by failing to include it in his Rule 1925(b) statement and
supplemental statement, see Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included
in the Statement . . . are waived.”), given our conclusion that the PCRA court
improperly denied Appellant representation of counsel, we decline to find
waiver and instead defer to newly-appointed counsel to determine whether to
raise this issue again on remand.
7 In light of our disposition, we do not need to address Appellant’s other issues
raised on appeal.
- 11 -
J-A09011-24
We note, as a final matter, that it is the Pennsylvania Rules of Criminal
Procedure, and not the U.S. Constitution or Pennsylvania Constitution, that
governs a defendant’s the right to counsel during PCRA proceedings. At this
point, the case law on forfeiture of counsel does not differentiate between the
standard for forfeiting the right to counsel in a post-conviction proceeding and
other criminal proceedings in which the right to counsel is constitutionally
based. We suggest that the Supreme Court or Pennsylvania Criminal
Procedural Rules Committee revisit the issue of forfeiture of counsel in a PCRA
proceeding. In particular, we ask that the Supreme Court or Pennsylvania
Criminal Procedural Rules Committee address whether a defendant has
forfeited his right to counsel in a situation similar to the facts of this case:
where a defendant’s obdurate conduct does not delay the criminal
proceedings, but the PCRA court determines that the defendant, without any
legitimate legal basis, refuses to accept his highly respected attorney’s legal
advice and concludes that the defendant will continue to be unwilling to accept
legitimate legal advice with a new attorney.
Order reversed. Case remanded with instructions to appoint new
counsel for Appellant and hold a hearing on the amended PCRA petition.
Jurisdiction relinquished.
Judge Kunselman joins the memorandum.
Judge Nichols concurs in result.
- 12 -
J-A09011-24
DATE: 10/25/2024
- 13 -
