J-S07007-22
2022 PA Super 53
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID RYAN BATES :
:
Appellant : No. 981 WDA 2021
Appeal from the PCRA Order Entered August 16, 2021
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003421-2016
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
OPINION BY OLSON, J.: FILED: March 29, 2022
Appellant, David Ryan Bates, appeals pro se from the order entered on
August 16, 2021, which dismissed his petition filed under the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We vacate the PCRA court’s
order and remand.
On March 1, 2016, Appellant pleaded guilty to theft by unlawful taking
at the discrete docket number of CP-25-CR-0002443-2015 (hereinafter
“Docket Number 2443-2015”). As the PCRA court explained, “[o]n May 6,
2016, [Appellant] was sentenced [at Docket Number 2443-2015] . . . to 30
days to [six] months’ incarceration, followed by [two] years of supervised
probation. . . . [Appellant] was paroled on May 18, 2016.” PCRA Court
Opinion, 4/4/18, at 2.
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* Retired Senior Judge assigned to the Superior Court.
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On November 28, 2016, the Commonwealth charged Appellant at the
current docket number – docket number CP-25-CR-0003421-2016
(hereinafter “Docket Number 3421-2016”) – with a number of crimes,
including: possession of a controlled substance with the intent to deliver
(“PWID”), receiving stolen property, persons not to possess firearms, firearms
not to be carried without a license, and possession of cocaine.1 As we
explained:
At the first trial, the jury (1) found Appellant guilty of
possession of a firearm prohibited, firearms not to be carried
without a license, and possession of a controlled substance;
(2) acquitted him of receiving stolen property; and (3) was
unable to agree on a verdict as to PWID. On April 7, 2017,
the trial court sentenced Appellant to concurrent sentences
on his three convictions, yielding an aggregate term of five
to ten [years’] imprisonment.
A new jury trial was held on the PWID charge on June 22,
2017, resulting in a conviction. On August 7, 2017, Appellant
was sentenced on the PWID conviction to eighteen to
thirty-six months incarceration, set to run consecutively to
the five-to-ten-year sentence imposed on April 7, 2017.
Commonwealth v. Bates, 195 A.3d 1032 (Pa. Super. 2018) (unpublished
memorandum) at 3 (footnote omitted).
Appellant filed a timely notice of appeal at Docket Number 3421-2016,
where he challenged the sufficiency of the evidence supporting his convictions
and claimed that his sentence was illegal. See id. at 4. On August 27, 2018,
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1 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 3925(a), 18 Pa.C.S.A.
§ 6105(a)(1), 18 Pa.C.S.A. § 6106(a)(1), and 35 P.S. § 780-113(a)(16),
respectively.
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this Court held that Appellant’s sufficiency claims failed, but that his sentence
was illegal because his simple possession conviction merged with his PWID
conviction for sentencing purposes. Nevertheless, since the trial court ordered
Appellant’s sentence for simple possession to run concurrently with his other
sentences, we simply vacated Appellant’s sentence for simple possession and
did not remand for resentencing, as our order did not upset the trial court’s
sentencing scheme. Id. at 10-11; see also Commonwealth v. Robinson,
817 A.2d 1153, 1163 n.14 (Pa. Super. 2003) (holding: “our disposition does
not upset the [trial] court's sentencing scheme as the sentence we reverse
here had been ordered to run concurrent to the sentence imposed on
[another] conviction. Under these circumstances, there is no need to remand
for resentencing”).
Appellant filed a timely petition for allowance of appeal at Docket
Number 3421-2016 with our Supreme Court. The Supreme Court denied
Appellant’s petition for allowance of appeal on March 13, 2019. See
Commonwealth v. Bates, 204 A.3d 364 (Pa. 2019).
As the PCRA court explained:
As a result of [Appellant’s] charges at [Docket Number
3421-2016], on April 7, 2017, [the trial court] revoked
[Appellant’s] parole/probation at [Docket Number
2443-2015] and re-sentenced him to [one to five] years’
incarceration. . . . This sentence was made consecutive to
[Appellant’s] sentence at [Docket Number 3421-2016].”
PCRA Court Opinion, 4/4/18, at 2-3.
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On February 16, 2018 – while Appellant’s direct appeal at Docket
Number 3421-2016 was pending before this Court – Appellant filed a PCRA
petition and claimed that “he was awarded an illegal sentence upon revocation
because his revocation sentence was greater than his original sentence.” Id.
at 3. Appellant’s PCRA petition listed both Docket Number 2443-2015 and
Docket Number 3421-2016 in the caption and the PCRA petition was filed at
both docket numbers. See Appellant’s Supplement to Motion for PCRA Relief,
3/27/18, at 1 (listing both docket numbers in the caption). Nevertheless, the
post-conviction claim and the PCRA petition pertained solely to Docket Number
2443-2015, as that was the docket where the trial court “revoked [Appellant’s]
parole/probation . . . and re-sentenced him to [one to five] years’
incarceration.” See PCRA Court Opinion, 4/4/18, at 2-3. Further, since
Appellant’s direct appeal at Docket Number 3421-2016 was pending before
this Court when Appellant filed his PCRA petition, the PCRA court lacked
jurisdiction to consider any PCRA petition relating to Docket Number
3421-2016 until the direct appeal at Docket Number 3421-2016 was resolved.
See Commonwealth v. Leslie, 757 A.2d 984, 985 (Pa. Super. 2000)
(holding: a “PCRA court [does] not have jurisdiction to proceed in [a PCRA]
action while [an] appeal to the Superior Court [is] pending”); see also
Commonwealth v. Smith,
244 A.3d 13, 16-17 (Pa. Super. 2020) (“[i]t is
well-settled that a PCRA petition may only be filed after an appellant has
waived or exhausted his direct appeal rights. Indeed, the PCRA provides
petitioners with a means of collateral review, but has no applicability until the
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judgment of sentence becomes final. Furthermore, this Court has explained:
‘If a petition is filed while a direct appeal is pending, the PCRA court should
dismiss it without prejudice towards the petitioner's right to file a petition once
his direct appeal rights have been exhausted’”) (citations, corrections, and
some quotation marks omitted).
The PCRA court recognized that the petition related solely to Docket
Number 2443-2015 and acknowledged that it did not have jurisdiction to
consider any post-conviction collateral claims pertaining to Docket Number
3421-2016, as Appellant’s direct appeal at that docket was still pending before
the Superior Court. PCRA Court Opinion, 4/4/18, at 1 n.1 (the PCRA court
declared: “[w]e note that [the] related [Docket Number 3421-2016],
pertaining to drug and gun charges, is currently on appeal to the Pennsylvania
Superior Court. . . . As such, we are without jurisdiction to hear any
substantive issues with regard to that docket. However, the judgment of
sentence at [Docket Number 2443-2015], pertaining to retail theft charges
and a revocation based on [new charges] . . . , has not been appealed”). The
PCRA court eventually dismissed this PCRA petition on June 22, 2018. See
PCRA Court Order, 6/22/18, at 1.
As noted above, on August 27, 2018, this Court affirmed in part and
vacated in part Appellant’s judgment of sentence at Docket Number
3421-2016. The Pennsylvania Supreme Court then denied Appellant’s petition
for allowance of appeal on March 13, 2019. See Commonwealth v. Bates,
195 A.3d 1033 (Pa. Super. 2018), appeal denied,
204 A.3d 364 (Pa. 2019).
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On February 21, 2020, Appellant filed a timely, pro se, first PCRA petition at
Docket Number 3421-2016. Although this was Appellant’s first PCRA petition
– and Appellant, thus, had a rule-based right to have counsel represent him
during the PCRA proceedings2 – the PCRA court neither appointed counsel for
Appellant nor held a hearing to determine whether Appellant wished to waive
his right to counsel. See Pa.R.Crim.P. 904(C) (“when an unrepresented
defendant satisfies the judge that the defendant is unable to afford or
otherwise procure counsel, the judge shall appoint counsel to represent the
defendant on the defendant's first petition for post-conviction collateral
relief”); Commonwealth v. Stossel, 17 A.3d 1286 (Pa. Super. 2011)
(“where 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”).
Indeed, the PCRA court expressly refused to appoint counsel to represent
Appellant during the proceedings because, it reasoned: “counsel was
appointed to represent [Appellant] on his first PCRA [petition], filed on
February 16, 2018. Counsel filed a supplement to the PCRA [petition] on
March 27, 2018. [Appellant] is not entitled to have counsel appointed to him
on subsequent PCRAs.” PCRA Court Opinion, 5/5/20. However, as was
explained above, Appellant’s February 16, 2018 PCRA petition did not relate
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2 Appellant has been indigent throughout all proceedings and, in his first PCRA
petition, Appellant averred that he remained indigent. See Appellant’s First
PCRA Petition, 2/21/20, at 8.
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to the current docket number. Instead, the earlier petition related solely to
Docket Number 2443-2015.
On May 21, 2020, the PCRA court finally dismissed Appellant’s petition
and Appellant filed a timely, pro se, notice of appeal. See PCRA Court Order,
5/21/20, at 1; Notice of Appeal, 6/17/20, at 1.
Before this Court, Appellant twice requested that we appoint counsel to
represent him on appeal and, twice, we erroneously denied his requests in per
curiam orders. See Superior Court Order at 50 WDM 2020, 6/23/20, at 1
(“[a]s it appears that this is an appeal from [Appellant’s] second PCRA, his
request for appointment of counsel is denied) (emphasis omitted); Superior
Court Order at 654 WDA 2020, 7/13/20, at 1 (“[t]o the extent that Appellant
seeks to have counsel appointed to him for the purpose of the appeal at 654
WDA 2020, the application is denied as it appears that Appellant is not entitled
to counsel as this is an appeal from his second or subsequent PCRA petition”)
(emphasis and some capitalization omitted). We then dismissed Appellant’s
appeal on October 14, 2020 because Appellant failed to file a docketing
statement. See Superior Court Order, 10/14/20, at 1.
Following the dismissal of Appellant’s appeal, Appellant filed, in this
Court, a pro se application to reinstate his appeal. He requested that his
appeal be reinstated because: “I was never granted representation on [the]
above docket and [I am] also indigent.” Appellant’s Application to Reinstate
Appeal, 1/11/21, at 1. We denied Appellant’s application on January 26, 2021.
Superior Court Order, 1/26/21, at 1.
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On July 12, 2021, Appellant filed a pro se petition in the PCRA court,
entitled “Motion for Writ of Error Requesting Re-Appointment of Counsel – For
PCRA Not Filed on Feb. 16, 2018 as Court Proclaims Which Docket Entries of
Feb. 16, 2018 Proves” (hereinafter “Appellant’s Current PCRA Petition”).3
Within this petition, Appellant requested that the PCRA court “reinstate his
first PCRA [petition] under this docket and to appoint him counsel to review
the claims he has raised and possibly submitting any required amendment
thereto.” Appellant’s Current PCRA Petition, 7/12/21, at 2 (emphasis in
original). The PCRA court believed that this petition constituted Appellant’s
third PCRA petition and, thus, the PCRA court did not appoint counsel to
represent Appellant. See PCRA Court’s Notice of Intent to Dismiss, 7/15/21,
at 1. The PCRA court finally dismissed Appellant’s Current PCRA Petition on
August 16, 2021 and Appellant filed a timely, pro se, notice of appeal.
Appellant raises two claims to this Court:
1. Was the [PCRA] court in error to dismiss Appellant’s first
PCRA [petition] filed under [Docket Number 3421-2016],
when [Appellant] had informed the court that [Appellant] has
never filed a PCRA [petition] directly under said docket . . . ?
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3 Regardless of the title, Appellant’s motion constitutes a petition under the
PCRA. See, e.g., 42 Pa.C.S.A. § 9542 (the PCRA “is the sole means of
obtaining collateral relief and encompasses all other common law and
statutory remedies . . . including habeas corpus and coram nobis”);
Commonwealth v. Pagan, 864 A.2d 1231, 1233 (Pa. Super. 2004) (“if the
underlying substantive claim is one that could potentially be remedied under
the PCRA, that claim is exclusive to the PCRA”) (emphasis in original).
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2. Is [Appellant] not thus entitled to file his “first” PCRA
[petition] in reference to said docket, due to either the court’s
clerk being in error to file both Appellant’s motion for
reconsideration and PCRA [petition] directly under [Docket
Number 2443-2015], or the court’s refusing to accept
Appellant’s informing the court the docket entries clearly
prove[] Appellant has never filed an actual PCRA [petition] in
reference to [Docket Number 3421-2016], which the court
never should have dismissed?
Appellant’s Pro Se Brief at 5.
“[I]t is undisputed that first time PCRA petitioners have a rule-based
right to counsel.” Commonwealth v. Figueroa, 29 A.3d 1177, 1180 n.6
(Pa. Super. 2011). This right to counsel “exists throughout the
post-conviction proceedings, including any appeal from [the] disposition of the
petition for post-conviction relief.” Commonwealth v. Quail,
729 A.2d 571,
573 (Pa. Super. 1999) (internal citations and quotation marks omitted); see
also Pa.R.Crim.P. 904(C).
Further, our Supreme Court has explained that “[t]he denial of PCRA
relief cannot stand unless the petitioner was afforded the assistance of
counsel.” Commonwealth v. Albrecht, 720 A.2d 693, 699 (Pa. 1998). In
following, our Supreme Court has held: “if a court dismisses a pro se [PCRA]
petition prior to the appointment of counsel, a subsequent counseled petition
may not be treated as an untimely second petition.” Commonwealth v.
Williams,
828 A.2d 981, 990 (Pa. 2003); see also Commonwealth v.
Duffey,
713 A.2d 63 (Pa. 1998) (holding: “[t]he [PCRA] court erred when it
declined to appoint counsel to assist [the petitioner] with the first PCRA
Petition, and the court should have permitted [the petitioner] to litigate the
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Amended PCRA Petition with the assistance of counsel. Accordingly, we hold
that the [PCRA] court committed an error of law when it granted the motion
to strike the Amended PCRA Petition. We must therefore remand this case to
the trial court to consider [the petitioner’s] Amended PCRA Petition”);
Commonwealth v. Tedford, 781 A.2d 1167 (Pa. 2001) (holding: “where an
appellant files his first PCRA Petition without the assistance of counsel, the
appellant shall be permitted to file an amended PCRA Petition with the
assistance of counsel”); Commonwealth v. Andress,
260 A.3d 99 (Pa.
Super. 2021) (non-precedential decision) at *3 (holding: “we vacate the order
dismissing appellant's second PCRA petition, and remand for nunc pro tunc
relief so that appellant may proceed in the same position he was in prior to
the breakdown in the court process that began when the PCRA court failed to
appoint counsel to represent appellant in his first petition”) (quotation marks
and some capitalization omitted).
As explained above, on February 21, 2020, Appellant filed a timely, pro
se, first PCRA petition at Docket Number 3421-2016 and both the PCRA court
and this Court erroneously allowed Appellant to litigate the entirety of the
petition pro se. Given our failures, Appellant’s Current PCRA Petition “may
not be treated as an untimely second petition.” Williams, 828 A.2d at 990.
Instead, pursuant to our Supreme Court’s precedent and in view of Appellant’s
prior uncounseled and erroneously-dismissed PCRA petition, Appellant’s
Current PCRA Petition must be considered a timely, first petition under the
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PCRA. We thus vacate the PCRA court’s order and remand the matter for
further proceedings.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2022
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