Commonwealth v. Gillins

• Decision Date: 24 December 2020
• Docket Number: No. 1145 EDA 2019,1145 EDA 2019
• Citation: 245 A.3d 1100 (Table)
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Bruce GILLINS a/k/a/ Robert Bruce Gillins, Appellant
• Court: Pennsylvania Superior Court

245 A.3d 1100 (Table)

COMMONWEALTH of Pennsylvania, Appellee v. Bruce GILLINS a/k/a/ Robert Bruce Gillins, Appellant

No. 1145 EDA 2019

Superior Court of Pennsylvania.

Filed: December 24, 2020

MEMORANDUM BY KING, J.:

Appellant, Bruce Gillins a/k/a Robert Bruce Gillins, appeals pro se from the order entered in the Philadelphia County Court of Common Pleas, which denied his first petition brought pursuant to the Post Conviction Relief Act ("PCRA"). ¹ We vacate and remand for further proceedings.

The relevant facts and procedural history of this case are as follows. On October 3, 1996, Appellant entered a negotiated guilty plea to third-degree murder. In exchange for his guilty plea, the Commonwealth agreed to a sentence of 10 to 20 years' imprisonment to run concurrent to a federal sentence Appellant was serving. Appellant did not file a direct appeal from his judgment of sentence.

On June 6, 2017, Appellant filed the current PCRA petition pro se . Appellant alleged ineffective assistance of plea counsel, breach of his plea agreement, and an unlawful guilty plea. Specifically, Appellant claimed that all parties agreed his third-degree murder sentence would run concurrent to his federal sentence. Appellant insisted that in March 2012, he sought commutation of his federal sentence. On or around April 5, 2012, Appellant discovered his federal and state sentences were not running concurrent to each other. Appellant subsequently contacted plea counsel for assistance, who advised Appellant to file a claim with the Bureau of Prisons. After doing so, Appellant learned by letter dated April 17, 2017, that the state court had lacked authority to impose a state sentence concurrent to a federal sentence and that Appellant's sentences would run consecutively, not concurrently. Appellant sought appointment of PCRA counsel.

Appellant also filed a pro se application for the appointment of counsel on September 13, 2018. The court appointed PCRA counsel on January 8, 2019. Less than one week later, on January 14, 2019, counsel filed a petition to withdraw and "no-merit" letter pursuant to Commonwealth v. Turner , 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988) ( en banc ). In the "no-merit" letter, counsel stated he reviewed the Quarter Session file, corresponded with Appellant, researched the applicable law, and decided Appellant's claims were time-barred under the PCRA. PCRA counsel initially conceded that Appellant, the Commonwealth, and the court had agreed Appellant's third-degree murder sentence would run concurrent to his federal sentence. PCRA counsel further admitted that the state court had lacked authority to order Appellant's state sentence to run concurrent to the federal sentence. Nevertheless, PCRA counsel maintained Appellant had failed to exercise due diligence by waiting 20 years to seek clarification of his sentence, rendering Appellant's PCRA petition time-barred. PCRA counsel also noted that Appellant's federal sentence was a life sentence, so as a practical matter, Appellant was not prejudiced by consecutive rather than concurrent sentences.

On January 18, 2019, the PCRA court issued notice of its intent to dismiss the petition without a hearing per Pa.R.Crim.P. 907. Appellant filed a pro se response on February 12, 2019. In his response, Appellant claimed he thought his federal and state sentences were running concurrently until 2012, when he sought commutation of the federal sentence. Appellant did not file a PCRA petition at that time because plea counsel advised him to file a claim with the Bureau of Prisons, which Appellant did. Appellant insisted he did not learn until April 2017, that the state court had lacked authority to impose concurrent sentences and that his sentences were running consecutively.

Appellant further alleged that he received a letter from PCRA counsel on January 11, 2019, indicating PCRA counsel's appointment in the matter. Appellant was unable to call PCRA counsel right away to discuss his case because the prison does not immediately process requests to add phone numbers to Appellant's list of approved phone calls. Consequently, Appellant asked a friend to reach out to PCRA counsel and to ask PCRA counsel to set up a phone appointment with Appellant. When PCRA counsel was dismissive of Appellant's friend on the phone, Appellant next asked his brother to contact PCRA counsel. PCRA counsel was also dismissive of Appellant's brother. Appellant emphasized that PCRA counsel never reached out to him to discuss the case, even though in his appointment letter, PCRA counsel had stated that he would contact Appellant once he reviewed Appellant's file. Instead, PCRA counsel simply filed the "no-merit" letter. Appellant also averred that failure to run the sentences concurrently did prejudice Appellant because under the recent federal "First Step Act," Appellant might be eligible for a reduction in his federal sentence. Appellant alleged PCRA counsel's performance was deficient and requested the appointment of new PCRA counsel.

On March 15, 2019, the court denied PCRA relief and let counsel withdraw. Appellant timely filed a pro se notice of appeal on April 5, 2019. The court did not order, and Appellant did not file, a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant raises three issues for our review:

Was the PCRA court's dismissal of Appellant's PCRA petition unsupported by the record and based on legal error because Appellant's appointed PCRA counsel was ineffective for failing to raise Appellant's due process violations, [plea counsel's] ineffectiveness, breach of plea agreement, governmental interference, trial court issued an unlawful sentence and Appellant's actual innocence claims given these claims had arguable merit and if so, should Appellant's conviction be vacated?

Was the PCRA court's dismissal of Appellant's PCRA petition without a hearing and granting appointed PCRA counsel's Finley letter or not appointing new PCRA counsel an error?

Was the PCRA court's dismissal of Appellant's PCRA petition without a hearing an error because the court failed to file an independent opinion?

(Appellant's Brief at 5).

As a preliminary matter, we must address Appellant's allegations of PCRA counsel's ineffectiveness raised in response to the Rule 907 notice. This Court has recently explained:

"[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." Commonwealth v. Stossel , 17 A.3d 1286, 1290 (Pa.Super. 2011).

As this is Appellant's first PCRA petition, he enjoys a well-recognized right to legal representation during this initial collateral review of his judgment of sentence. See Commonwealth v. Albert , 561 A.2d 736, 738 (Pa. 1989) ("[I]n this Commonwealth one who is indigent is entitled to the appointment of counsel to assist with an initial collateral attack after judgment of sentence"). In this context, "the right to counsel conferred on initial PCRA review means ‘an enforceable right’ to the effective assistance of counsel." See Commonwealth v. Holmes , 79 A.3d 562, 583 (Pa. 2013) (quoting Commonwealth v. Albrecht , 720 A.2d 693, 699-700 (Pa. 1998) ).

While the existence of this right is well-established, the procedure for its enforcement, i.e. , raising allegations of PCRA counsel's ineffectiveness, remains ill-defined under Pennsylvania law:

[T]here is no formal mechanism in the PCRA for a second round of collateral attack focusing upon the performance of PCRA counsel, much less is there a formal mechanism designed to specifically capture claims of previous counsel's ineffectiveness defaulted by initial-review PCRA counsel. Frankly, this Court has struggled with the question of how to enforce the "enforceable" right to effective PCRA counsel within the strictures of the PCRA[.] The question of whether and how to vindicate the right to effective PCRA counsel has been discussed at length in majority opinions and in responsive opinions .... But, the Justices have not been of one mind respecting how to resolve the issue, and no definitive resolution has emerged.

Holmes, supra at 583-84. Stated more succinctly, "since petitioners are not authorized to pursue hybrid representation and counsel cannot allege [their] own ineffectiveness, claims of PCRA counsel ineffectiveness cannot ordinarily be raised in state post-conviction proceedings[.]" Commonwealth v. Rykard , 55 A.3d 1177, 1188 (Pa.Super. 2012) (emphasis added).

However, our Supreme Court also concomitantly requires counseled PCRA petitioners to raise allegations of PCRA counsel's ineffectiveness in response to a Rule 907 notice of intent to dismiss, or risk waiver. See Commonwealth v. Pitts , 981 A.2d 875, 880 n.4 (Pa. 2009).

* * *

Subsequent interpretation of Pitts by both the Supreme Court and this Court have reaffirmed this aspect of the holding. See Commonwealth v. [A.] Robinson , 139 A.3d 178, 184 n.8 (Pa. 2016) ; Commonwealth v. Henkel , 90 A.3d 16, 25 (Pa.Super. 2014) ( en banc ) ("[T]he Pitts majority mandated that a petitioner raise any allegations of PCRA counsel ineffectiveness in response to the PCRA court's notice of dismissal").

Commonwealth v. Betts , 240 A.3d 616, 621-22 (Pa.Super. 2020) (some internal citations omitted).

Additionally, this Court has emphasized the importance of effective assistance of counsel regarding a petitioner's first PCRA petition:

While the right to legal representation in the PCRA context is not constitutionally derived, the importance of that right cannot be diminished merely due to its rule-based derivation. In the post-conviction setting, the defendant normally is seeking redress for trial counsel's errors and omissions. Given the current time constraints of [the PCRA], a defendant's first PCRA petition,

...