Commonwealth v. Rykard

• Decision Date: 18 September 2012
• Citation: 55 A.3d 1177,2012 PA Super 199
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Ernest Wesley RYKARD, Appellant.
• Court: Pennsylvania Superior Court

55 A.3d 1177

2012 PA Super 199

COMMONWEALTH of Pennsylvania, Appellee

v.Ernest Wesley RYKARD, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 23, 2012.

Filed Sept. 18, 2012.

Ernest W. Rykard, appellant, pro se.

Craig W. Stedman, Assistant District Attorney, Lancaster, for Commonwealth, appellee.

BEFORE: BOWES, LAZARUS, and COLVILLE,^* JJ.

OPINION BY BOWES, J.:

Ernest Wesley Rykard appeals pro se from the May 27, 2011 order dismissing his petition for post-conviction relief. Following a remand to determine the status of PCRA counsel, we affirm.

We previously delineated the history of this case as follows.

A jury convicted Appellant of felony murder due to his role in the execution-style killing of Shawn Hutchinson. The underlying facts involve a plan by Appellant and several cohorts to rob Mr. Hutchinson of two eight balls of crack cocaine. Specifically, on November 29, 2006, Appellant, Jacquin Carr, Barbara Hamm, and Lizyvette Rosario–Casanova were smoking crack cocaine.¹ As the group began to run low on the drug, they hatched a plan to rob someone to attain more drugs. They then encountered another individual, Rachel Rakita, who informed Appellant, Mr. Carr, and Ms. Rosario–Casanova that she could acquire more cocaine. Ms. Rakita placed a telephone call to Shawn Hutchinson and agreed to purchase two eight balls of crack cocaine from him. The group then drove to Hutchinson's apartment.

The group, except for Ms. Hamm, agreed that Ms. Rakita would lure Hutchinson outside so that they could rob him.² Once the victim was outside, Appellant and Mr. Carr seized the victim and Ms. Rakita returned to the vehicle. Mr. Carr held the victim's arms behind his back while Appellant held a silver small caliber handgun on the victim and searched him for the drugs. Ms. Rosario–Casanova ultimately removed an eight ball from the victim's back pocket. She then walked back toward the car and prevented Ms. Rakita from attempting to drive away. Mr. Carr remained behind holding the victim down while Appellant pointed the firearm at his head. Appellant then fired a shot into the victim's head, and he and Mr. Carr returned to the vehicle. Afterward, the group traveled to Appellant's sister's home where they proceeded to smoke the stolen crack cocaine. While at his sister's house, Appellant informed his nephews that he believed he killed somebody and showed them a bullet casing. After smoking crack, Appellant and Ms. Rosario–Casanova travelled to another house, where Appellant displayed the gun. Ms. Rosario–Casanova began to play with the weapon and caused it to jam. A short while later, Appellant disposed of the gun. Thereafter, police stopped Appellant and Ms. Rosario–Casanova, and Ms. Rosario–Casanova was arrested and taken into custody. Police did not arrest Appellant at that time.

The Commonwealth later arrested and charged Appellant with criminal homicide, robbery, and conspiracy to commit robbery. Following a jury trial wherein the Commonwealth tried Appellant and Mr. Carr jointly, the jury convicted Appellant of one count of felony murder.³ The court sentenced Appellant to the mandatory term of life imprisonment. Appellant filed post-sentence motions, which the court denied. Thereafter, Appellant neglected to file a timely direct appeal, but filed a motion to reinstate his direct appeal rights nunc pro tunc. The trial court granted that request, and Appellant filed his direct appeal. This Court affirmed, Commonwealth v. Rykard, 976 A.2d 1214 (Pa.Super.2009) (unpublished memorandum), and the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal on November 30, 2009. Commonwealth v. Rykard , 985 A.2d 219 (Pa.2009).

Appellant timely filed a pro se post-conviction petition on October 25, 2010. The PCRA court appointed counsel and directed that he file an amended petition within forty-five days. Counsel, however, petitioned to withdraw and filed a no-merit letter pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa.1988) and Commonwealth v. Finley , 550 A.2d 213 (Pa.Super.1988) (“ Turner/Finley ”), addressing the issues Appellant submitted in his pro se petition and an additional issue raised by Appellant at a meeting he had with counsel. Additionally, counsel averred that he could not find any other issues of merit. The PCRA court agreed with counsel's assessment and issued a notice of intent to dismiss on December 27, 2010. Appellant, pro se, filed a petition for transcripts and a stay of proceedings to allow him to respond.⁴ The court delayed issuing its final order and Appellant, after the lapse of the one-year jurisdictional time-bar, responded to the notice of dismissal on May 23, 2011. In his response, Appellant advanced ineffective assistance of PCRA counsel claims and several other issues not expressed in his original pro se petition. Thereafter, the court dismissed Appellant's petition. This appeal ensued. The PCRA court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and he complied.

Commonwealth v. Rykard, 50 A.3d 235 (Pa.Super.2012) (unpublished memorandum) (filed May 7, 2012).

Although it appeared that the PCRA court allowed counsel to withdraw, no order was contained within the record expressly authorizing counsel's withdrawal. Accordingly, out of an abundance of caution, we remanded to the PCRA court for a determination as to counsel's current status in this case, but retained jurisdiction. The PCRA court conducted a hearing as directed. However, at the conclusion of that hearing it appointed new counsel for the purpose of filing a new amended PCRA petition. This Court voided that order as exceeding the scope of our limited remand and the PCRA court has indicated that Turner/Finleycounsel was permitted to withdraw.¹ The matter is now ready for review. Appellant raises five issues for our consideration.

Instantly, Appellant's claims were neither waived nor previously litigated. It would be logically impossible for Appellant to have argued the ineffective assistance of his post-conviction attorney in his pro se petition as he had not yet been appointed PCRA counsel. In addition, since petitioners are not authorized to pursue hybrid representation and counsel cannot allege his own ineffectiveness, claims of PCRA counsel ineffectiveness cannot ordinarily be raised in the state post-conviction proceeding below. As Appellant's post-conviction matter was his first and was not complete when he filed his response to the PCRA court's pre-dismissal notice, there was no completed prior post-conviction proceeding. Furthermore, only after counsel sought to withdraw was Appellant able to allege that his PCRA attorney was ineffective. Therefore, the rationale behind Lawson is not present where a defendant is raising, in a first-time PCRA proceeding at the PCRA court level, PCRA counsel's ineffectiveness.

In truth, the concern of Lawson and the principal case it relied upon, Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981) (plurality), was with multiple post-conviction proceedings. The plurality in Alexander posited, “the PCHA explicitly contemplates a single post-conviction proceeding in no uncertain terms.” Alexander, supra at 184. It specifically commented that allowing claims cloaked under ineffective assistance of counsel language “would further the proliferation of needless and wasteful multiple post-conviction proceedings.” Id. at 185 (emphasis added). However, the plurality reasoned that “if the ineffectiveness standard is to have any substance at all, it was necessary ... to provide ... at least one meaningful opportunity to have the underlying issues reviewed, at least in the context of an ineffectiveness claim.” Id. at 186. In sum, the Lawson Court was not distressed with the submission of multiple petitions during an initial collateral attack. Although Lawson was handed down prior to the passage of the jurisdictional time-bar, the legislature, in crafting the one-year time limitation, adopted the “second or subsequent petition” language of Lawson and therefore its legally-understood meaning at that time. Both the criminal rules of procedure and the Lawson decision primarily reflect a concern over serial PCRA proceedings instituted by second or subsequent petitions.

It is evident that the original meaning of the “second or subsequent petition” language in the PCRA, at the time of its adoption, did not include a response to a notice of intent to dismiss. It is only as a result of Pitts that defendants were compelled to raise new PCRA counsel ineffectiveness claims in response to a notice of intent to dismiss.⁶ Simply put, the General Assembly did not intend for the “second or subsequent” provision of the PCRA to apply to a response to a Rule 907 notice of intent to dismiss. Indeed, such a conclusion would be logically untenable as invariably, in the vast majority of cases, the permitted response would be filed after the one-year time deadline.⁷

The purpose behind a Rule 907 pre-dismissal notice is to allow a petitioner an opportunity to seek leave to amend his petition and correct any material defects, see Commonwealth v. Williams, 566 Pa. 553, 782 A.2d 517, 526 (2001), the ultimate goal being to permit merits review by the PCRA court of potentially arguable claims. The response is an opportunity for a petitioner and/or his counsel to object to the dismissal and alert the PCRA court of a perceived error, permitting the court to “discern the potential for amendment.” Id. at 527. The response is not itself a petition and the law still requires leave of court to submit an amended petition. SeePa.R.Crim.P. 905(A). Hence, we conclude that a response to a notice of intent to dismiss is not a second or subsequent petition.⁸ Since Appellant's response is not a second petition subject to the PCRA time-bar, and he objected to PCRA counsel's effectiveness at the PCRA level, we may proceed to analyze his...