Commonwealth v. Ezell

258 A.3d 489 (Table)

COMMONWEALTH of Pennsylvania

v.Craig Lamont EZELL, Jr., Appellant

No. 302 MDA 2020

Superior Court of Pennsylvania.

Filed June 2, 2021

MEMORANDUM BY MURRAY, J.:

Craig Lamont Ezell, Jr. (Appellant) appeals from the order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541 - 9546. After careful review, we vacate and remand with instructions.

On January 24, 2017, the Harrisburg Police, accompanied by the United States' Marshal's Fugitive Task Force, entered a rooming house to serve an arrest warrant on Jamel Taylor. N.T., 6/19/18, at 5. While searching for Taylor, they detained the residents of the rooming house; they also discovered two 22-caliber rifles in different bedrooms during a safety sweep. Id. at 5-6. After obtaining a search warrant, the police found additional firearms as well as marijuana and drug paraphernalia in Appellant's room. Id. at 6.

On May 1, 2017, the Commonwealth charged Appellant with three counts of possession of firearms prohibited, and one count each of altering or obliterating marks of identification, possession of drug paraphernalia, and possession with intent to deliver.¹ On January 26, 2018, Plea Counsel filed a motion to suppress.

On June 19, 2018, Appellant entered a negotiated guilty plea to all charges. Plea Counsel explained that the U.S. Attorney was threatening to indict Appellant on federal charges if Appellant did not plead to the state charges. N.T., 6/19/18, at 3. He stated, "[t]his plea is in lieu of a federal indictment, per [the United States Attorney]." Id. Plea Counsel withdrew his suppression motion and reiterated that Appellant was entering his plea because of the threat of a federal indictment with the possibility of a harsher federal sentence. Id. at 3-4. He repeated, "This is in lieu of federal indictment. ... [Appellant] has made this decision knowingly (sic ) that federal indictment is not coming down now, and should he withdraw his plea, it will be." Id. at 4. The U.S. Attorney did not appear at the plea hearing and the record does not contain any communication or documentation from their office.

Sentencing took place on December 28, 2018. In the interim between Appellant's guilty plea and sentencing, the trial court granted the suppression motions filed by Appellant's co-defendants and the Commonwealth dropped the charges against them. N.T., 12/28/18, at 3. Plea Counsel acknowledged the state charges against Appellant could be dropped, but noted that the U.S. Attorney was still threatening to press federal charges against Appellant and Plea Counsel was unsure if a motion to suppress would be successful in federal court.² Id. at 3-4. Plea Counsel stated he was advising Appellant not to withdraw his guilty plea; Appellant agreed, and the court sentenced him to 5-10 years' imprisonment in accordance with the terms of the plea agreement. Id. at 3-9. Appellant did not file a direct appeal.

On May 17, 2019, Appellant, acting pro se , filed the instant timely PCRA petition. Appellant used the DC-198 form supplied by the Department of Corrections. On page 2, Appellant checked the boxes indicating he was entitled to relief because of ineffective assistance of counsel; an unlawfully induced guilty plea; and the unavailability of exculpatory evidence. PCRA Petition, 5/17/19, at 2. On page 4, Appellant stated:

On Jan 24^th, 2017 when the task force forced entry without a search warrant and the fact of the residence being a rooming house with separate apartments. The evidence obtained on the 2^nd fl[oor] should not hold merit on petitioner [undecipherable] his separate address. It's a direct violation of petitioner 4^th Amendment[.]

* * *

The following facts were known to me after petitioner agreed to a term of 5 to 10 yrs. And I obtain my knowledge [undecipherable] my own research.

Id. at 4 (unnecessary capitalization omitted). The petition did not further indicate what claim(s) Appellant wished to raise.

On May 21, 2019, the PCRA court appointed PCRA Counsel and gave him 30 days to file an amended petition. Order, 5/21/19. Less than 30 days later, on June 17, 2019, PCRA Counsel filed a motion to withdraw pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc ). PCRA Counsel indicated that he reviewed Appellant's pro se PCRA petition, "the docket sheet and file at the Dauphin County Clerk of Court's Office," and corresponded with Appellant. Motion to Withdraw as Counsel, 6/17/19, at unnumbered page 3.³ Counsel did not attempt to rephrase, explain, or expand on Appellant's issue(s), but instead quoted Appellant's language from his pro se petition, supra , and concluded Appellant's guilty plea was knowing, intelligent, and voluntary. Id. at unnumbered pages 4-9.

Approximately two days later, without giving Appellant an opportunity to respond to Plea Counsel's motion to withdraw, the PCRA court granted the motion and contemporaneously issued notice of intent to dismiss pursuant to Pa.R.Crim.P. 907.

After receiving extensions of time, Appellant, on November 11, 2019, filed a response to the Rule 907 notice; Appellant explained "Inmate Legal Reference Aids" helped him prepare the response. Response to Rule 907 Notice, 11/11/19, at 3. Appellant asserted PCRA Counsel sent him a single letter and ignored Appellant's request for "privileged calls." Id. at 6. Appellant also sought leave to file an amended PCRA petition to raise the issue of Plea Counsel's ineffectiveness because he "never informed [Appellant] that federal authorities retained full authority to criminally charge him under federal laws, whether or not [Appellant] elected to enter into a negotiated plea bargain under state law." Id. at 12. Finally, Appellant sought to raise a claim of ineffective assistance of PCRA Counsel. Id. at 12, 17.

On January 14, 2020, the PCRA court dismissed the petition. This timely appeal followed. On February 24, 2020, the PCRA court directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). However, despite having granted PCRA Counsel's motion to withdraw more than eight months prior, it served the order on PCRA Counsel, not Appellant. The PCRA court did not rectify the error until two weeks later. On March 19, 2020, Appellant filed a timely Rule 1925(b) statement; on April 24, 2020, the PCRA court issued an opinion.

On appeal, Appellant presents the following four issues:

I. Did the PCRA court violate [Appellant's] Federal and State Due Process rights and err by granting [PCRA counsel's] Motion to Withdraw as PCRA Counsel when the court gave [Appellant] no opportunity to receive and respond to that Motion, and improperly dismissed [Appellant's] PCRA petition, consistent with Commonwealth v. Bush , 2018 PA Super 271, 197 A.3d 285 and similar Pennsylvania laws; further, does the PCRA court's failure to serve [Appellant] with its Concise Statement Order after the withdrawal of PCRA Counsel excuse any alleged waiver of this issue?

II. Certain that this issue would satisfy the mootness doctrine if necessary: Did the PCRA court err under Pa.R.Crim.P. 907(1) by dismissing [Appellant's] pro se petition without "grant[ing] leave to file an amended petition" and without "direct[ing] that the proceedings continue," where correctable material-defects existed if the PCRA court considered the pro se petition "defective" and where [Appellant] corrected those defects in his timely raised claim of PCRA Counsel's ineffectiveness; further, should this Court announce a mandatory procedural-requirement that PCRA proceedings must continue below when petitioners timely raise PCRA counsel's ineffectiveness in a 907(1) response in the interest of judicial economy?

III. Did the PCRA court err by finding [PCRA Counsel] effective^[4] as PCRA Counsel for unreasonably failing to discover and raise [Plea Counsel's] ineffectiveness as Plea Counsel for affirmatively misadvising [Appellant] to plead guilty under federal duress, after independently reviewing the record and before seeking leave to withdraw, which would have afforded [Appellant] PCRA relief?

IV. Did the PCRA court err by finding [Plea Counsel] effective as Plea/Sentencing Counsel for affirmatively misadvising [Appellant] to plead guilty "under federal duress" when [Plea Counsel] never informed [Appellant] about the Dual-Sovereignty doctrine and its application to his plea decision-making process, which invalidates [Appellant's] guilty plea under the circumstances of this particular case?

Appellant's Brief at 4 (unnecessary capitalization omitted).⁵

It is well-settled law that in reviewing the denial of PCRA relief, "we examine whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Fears , 86 A.3d 795, 803 (Pa. 2014) (quotations and citations omitted). "To be entitled to PCRA relief, [an] appellant must establish, by a preponderance of the evidence, [that] his conviction or sentence resulted from one or more of the enumerated errors in 42 Pa.C.S.A. § 9543(a)(2)." Id.

In his first issue, Appellant contends the PCRA court violated his due process rights by granting PCRA Counsel's motion to withdraw without giving Appellant an opportunity to respond. Appellant's Brief at 13-20. We agree.

PCRA Counsel filed his Turner /Finley letter on June 17, 2019. His letter to Appellant advising him of his rights is dated the same day. There is no certificate of service attached to the motion to withdraw. The PCRA court granted the motion to withdraw and issued a Rule 907 notice two days later, on June 19, 2019.

In Commonwealth v. Bush , 197 A.3d 285 (Pa. Super. 2018), this Court was faced with the same situation. It was unclear when the petitioner was served with the letter advising him of his rights, yet the PCRA court granted counsel's request to withdraw and issued Rule 907 notice three days after the motion was filed. Bush , 197 A.3d at 288...