Com. v. Smith

• Decision Date: 06 March 2003
• Citation: 572 Pa. 572,818 A.2d 494
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Charles H. SMITH, Jr., Appellee.
• Court: Pennsylvania Supreme Court

818 A.2d 494

572 Pa. 572

COMMONWEALTH of Pennsylvania, Appellant v. Charles H. SMITH, Jr., Appellee.

Supreme Court of Pennsylvania.

Submitted December 5, 2002.

Decided March 6, 2003.

Andrea F. McKenna, D. Michael Fisher, Jerome T. Foerster, William H. Ryan, Rober A. Graci, Harrisburg, for the Com., Appellant. David Russell Yoder, Chambersburg, for Charles H. Smith, Appellee.

Before: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and LAMB, JJ.

OPINION

Justice NEWMAN.

The Commonwealth of Pennsylvania (the Commonwealth) seeks review of an Order of the Superior Court, which vacated a decision of the Court of Common Pleas of Franklin County (PCRA court) that dismissed a pro se petition filed by Charles H. Smith Jr. (Smith) pursuant to the Post Conviction Relief Act (PCRA).¹ After reviewing the claim raised by the Commonwealth, we affirm the decision of the Superior Court.

FACTS AND PROCEDURAL HISTORY

On April 1, 1996, Smith pled guilty to four counts of burglary,² and the trial court sentenced him to an aggregate term of twelve to twenty-four years' imprisonment. Smith did not file a direct appeal. On May 1, 1996, Smith's Judgment of Sentence became final. See Pennsylvania Rule of Criminal Procedure 1410(A)(3) (a defendant has thirty days from sentencing to seek appellate review).

On June 4, 1999, more than three years after sentencing, Smith filed his first pro se petition for relief pursuant to the PCRA, in which he alleged ineffective assistance of counsel resulting from his trial counsel's failure to file a direct appeal. Smith specifically averred that he made several explicit requests to counsel to file a direct appeal. In the petition, Smith requested an evidentiary hearing, a restoration of his right to file a direct appeal nunc pro tunc, and a reconsideration of the sentence imposed on him by the trial court. Additionally, Smith sought appointment of counsel.

On July 11, 1999, the PCRA court notified Smith, in accordance with Pennsylvania Rule of Criminal Procedure 907,³ that it intended to dismiss his PCRA petition because it was not filed within the one-year period and none of the statutory exceptions to the one-year time limitation, enumerated in 42 Pa.C.S. § 9545(b)(1)(i)-(iii), appeared to apply. Rule 907 (Disposition Without Hearing) provides as follows:

Except as provided in Rule 909 for death penalty cases,

(1) the judge shall promptly review the petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant's claim(s). If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice. The judge thereafter shall order the petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue.

(2) A petition for post-conviction collateral relief may be granted without a hearing when the petition and answer show that there is no genuine issue concerning any material fact and that the defendant is entitled to relief as a matter of law.

(3) The judge may dispose of only part of a petition without a hearing by ordering dismissal of or granting relief on only some of the issues raised, while ordering a hearing on other issues.

(4) When the petition is dismissed without a hearing, the judge shall issue an order to that effect and shall advise the defendant by certified mail, return receipt requested, of the right to appeal from the final order disposing of the petition and of the time within which the appeal must be taken.

Pa.R.Crim.P. 907.

On August 1, 1999, Smith filed a Notice of Objection, arguing that he had an absolute right to a direct appeal. Smith stated that he believed that trial counsel filed a direct appeal when, in fact, his trial counsel did not. Smith requested that the PCRA court appoint counsel and reconsider its intention to dismiss. Additionally, Smith asked for a hearing to determine whether his trial counsel was instructed, but unjustifiably failed, to file a direct appeal. On August 23, 1999, the PCRA court dismissed the petition and appointed counsel to represent Smith on appeal only.⁴

After an intervening remand, the Superior Court filed an unreported Judgment Order. The Superior Court made no findings regarding the timeliness of Smith's PCRA petition. The Superior Court explained that the PCRA court's appointment of counsel to represent Smith on appeal did not satisfy the requirements of Pennsylvania Rule of Criminal Procedure 904 (Rule 904),⁵ which provides for the appointment of counsel to represent an indigent petitioner during post-conviction relief proceedings. Rule 904 (Entry of Appearance and Appointment of Counsel; In Forma Pauperis) provides as follows:

(A) Counsel for defendant shall file a written entry of appearance with the clerk of courts promptly after being retained or appointed, and serve a copy on the attorney for the Commonwealth. If a firm name is entered, the name of an individual lawyer shall be designated as being responsible for the conduct of the case.

(B) Except as provided in paragraph (G), 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.

(C) On a second or subsequent petition, when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, and an evidentiary hearing is required as provided in Rule 908, the judge shall appoint counsel to represent the defendant.

(D) The judge shall appoint counsel to represent a defendant whenever the interests of justice require it.

(E) An appointment of counsel shall be effective throughout the post-conviction collateral proceedings, including any appeal from disposition of the petition for post-conviction collateral relief.

(F) When a defendant satisfies the judge that the defendant is unable to pay the costs of the post-conviction collateral proceedings, the judge shall order that the defendant be permitted to proceed in forma pauperis.

(G) Appointment of Counsel in Death Penalty Cases.

(1) At the conclusion of direct review in a death penalty case, which includes discretionary review in the Supreme Court of the United States, or at the expiration of time for seeking the review, upon remand of the record, the trial judge shall appoint new counsel for the purpose of post-conviction collateral review, unless:

(a) the defendant has elected to proceed pro se or waive post-conviction collateral proceedings, and the judge finds, after a colloquy on the record, that the defendant is competent and the defendant's election is knowing, intelligent, and voluntary;

(b) the defendant requests continued representation by original trial counsel or direct appeal counsel, and the judge finds, after a colloquy on the record, that the petitioner's election constitutes a knowing, intelligent, and voluntary waiver of a claim that counsel was ineffective; or

(c) the judge finds, after a colloquy on the record, that the defendant has engaged counsel who has entered, or will promptly enter, an appearance for the collateral review proceedings.

(2) The appointment of counsel shall be effective throughout the post-conviction collateral proceedings, including any appeal from disposition of the petition for post-conviction collateral relief.

(3) When the defendant satisfies the judge that the defendant is unable to pay the costs of the post-conviction collateral proceedings, the judge shall order that the defendant be permitted to proceed in forma pauperis.

Comment: If a defendant seeks to proceed without an attorney, the court may appoint standby counsel. See Rule 121.

Consistent with Pennsylvania post-conviction practice, it is intended that counsel be appointed in every case in which a defendant has filed a petition for post-conviction collateral relief for the first time and is unable to afford counsel or otherwise procure counsel. However, the rule now limits appointment of counsel on second or subsequent petitions so that counsel should be appointed only if the judge determines that an evidentiary hearing is required. Of course, the judge has the discretion to appoint counsel in any case when the interests of justice require it.

Paragraph (G) was added in 2000 to provide for the appointment of counsel for the first petition for post-conviction collateral relief in a death penalty case at the conclusion of direct review.

Pa.R.Crim.P. 904.

Accordingly, the Superior Court vacated the Order of the PCRA court and remanded the matter for appointment of counsel. The Judgment Order of the Superior Court specifically provided that, "counsel should address the applicability of the section 9545(b) timeliness exceptions in [Smith's] amended petition...." Commonwealth v. Smith, No. 1540 MDA 1999, slip op. at 3, 792 A.2d 618 (Pa.Super. November 14, 2001) (Judgment Order). The Commonwealth appealed to this Court.

The Commonwealth challenges the jurisdiction of a PCRA court to appoint counsel for an indigent petitioner where the petition is untimely.

DISCUSSION

The Commonwealth contends that Smith was not entitled to the appointment of counsel because the PCRA's timeliness requirements are jurisdictional in nature and, therefore, a petitioner must first establish that his petition is not time-barred in order to qualify for court-appointed counsel pursuant to Rule 904. The argument advanced by the Commonwealth is that the timeliness requirements of the PCRA supersede Rule 904...