J-S40024-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Cour t. COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : RAVANNA SPENCER, : : Appellant : No. 1912 WDA 2014

Appeal from the PCRA Order October 10, 2014, Court of Common Pleas, Erie County, Criminal Division at No. CP-25-CR-0000433-2013 BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and STRASSBU RGER*, JJ. MEMORANDUM BY DONOHUE, J.: FILED JULY 27, 2015 Ravanna Spencer (“Spencer”) appeals from the order of court dismissing his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). For the following reasons, we vacate and remand for further proceedings. While incarcerated on an unrelated conviction, Sp encer threw urine on a corrections officer. He was subsequently charged with multiple offenses in relation to that incident. On July 3, 2013, Spence r pled guilty to disorderly conduct and harassment. 1 The matter proceeded immediately to sentencing and the trial court sentenced Spencer to six to twe lve months of

incarceration. 2 At the conclusion of the plea and sentencing hear ing,

1 18 Pa.C.S.A. §§ 5503(a)(4), 2709(a)(1).

2 This is an aggravated-range sentence. The statuto ry maximum is twelve months of incarceration. See Guideline Sentencing Form, 7/5/13.J-S40024-15

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Spencer’s counsel stated that Spencer waived his po st-trial and appellate rights “so that he [could] be shipped back to his h ome prison as soon as possible.” N.T., 7/3/13, at 15. There was no furt her mention of Spencer’s purported waiver of appeal rights, in either oral o r written form. On June 9, 2014, Spencer filed a timely pro se PCR A petition. On June 16, 2014, the PCRA court appointed counsel (“Counse l”). On August 22, 2014, Counsel filed a motion seeking to withdraw fr om representation pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1998), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988). In response to Counsel’s Turner/Finley letter, Spencer sent the trial court a letter contesting Counsel’s motion to withdraw, in which h e argued against Counsel’s conclusion that the issues he raised in h is pro se petition were without merit. Spencer mailed this document to the trial court on September 8, 2014. On the same date, the PCRA cour t granted Counsel’s petition to withdraw and issued its notice of inten t to dismiss Spencer’s PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907 (“Rule 907 notice”). 3 Spencer then filed a response to the Rule 907 notic e of intent to dismiss, in which he reiterated not only his defense of the iss ues he raised in his PCRA petition, but also raised new allegations of trial counsel ineffectiveness and

3 In connection with granting Counsel’s request to w ithdraw, the PCRA court authored a detailed opinion addressing the issues r aised by Counsel in his Turner/Finley

letter and agreeing with Counsel that they were wi thout merit. PCRA Court Opinion, 9/8/14.J-S40024-15

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claims of Counsel’s ineffectiveness. On October 10 , 2014, the PCRA court denied Spencer’s PCRA petition without addressing a ny of the claims Spencer raised for the first time in his response t o the Rule 907 notice. This timely appeal follows. Spencer raises seven issues for our review. 4 As we address them, we are mindful that “there is no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a heari ng is not necessary.” Commonwealth v. Springer , 961 A.2d 1262, 1264 (Pa. Super. 2008). “A reviewing court must examine the issues raised in t he PCRA petition in light of the record in order to determine whether the PCR A court erred in concluding that there were no genuine issues of mat erial fact and in denying relief without an evidentiary hearing.” Id. Spencer raises two claims in which he alleges that the trial court lacked jurisdiction over him. Spencer’s Brief at 5 . As a general matter, when a defendant has pled guilty, the only claims h e may bring under the PCRA relate to the validity of his plea or the lega lity of his sentence. Commonwealth v. Rounsley , 717 A.2d 537, 538 (Pa. Super. 1998) (“[A]fter a defendant has entered a plea of guilty, the only cognizable issues in a post-conviction proceeding are the validity of the plea of guilty and the legality of the sentence.”). As these issues chall enge the authority of the

4 We have reordered these issues for purposes of our discussion.J-S40024-15

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trial court to impose Spencer’s sentence, they impl icate the legality of his sentence; accordingly, Spencer can raise them in a PCRA action. Commonwealth v. Archer , 722 A.2d 203, 209 (Pa. Super. 1998) (en banc); Rounsley , 717 A.2d at 538. Nonetheless, they afford him no relief. Spencer first argues that because the district atto rney did not sign the criminal complaint, it was void and therefore the c ase “should have been dismissed for lack of jurisdiction.” Spencer’s Bri ef at 27. Spencer cites Commonwealth v. Belcher , 392 A.2d 730 (Pa. Super. 1978), in support of his position. This reliance is misplaced. Belcher provides that the criminal information, not the criminal complaint, must be si gned by a district attorney for it to be valid. Id. at 731. 5 Even if Spencer meant to challenge the validity of the criminal information, our review of the record reveals that the signature of a member of the Erie County District A ttorney’s office is clearly affixed to Spencer’s criminal information. Thus, t here is no merit to this claim. Spencer also argues that the trial court lacked jur isdiction over him because Pennsylvania’s constitution “lacks a saving s clause permitting it to enact laws, statutes and [a] penal code.” Spencer’ s Brief at 27. This is an

5 We further note that this Court overruled Belcher in Commonwealth v. Veneri, 452 A.2d 784, 788 (Pa. Super. 1982) (“[W]e believe that Belcher is incorrect law and must be overruled. We instead hol d that the signature requirement of Pa.R.Crim.P. 225(b) is directory onl y and that its absence renders an information merely voidable and curable by amendment if properly raised in a pre-trial motion to quash.”).J-S40024-15

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argument that pro se appellants frequently raise, w hich we have consistently and roundly rejected. This Court recently detailed the faults in this argument and explained precisely why it is a frivol ous claim in Commonwealth v. Stultz , 114 A.3d 865, 873-75 (Pa. Super. 2015). We now turn to Spencer’s two claims that the PCRA c ourt erred by denying his petition without considering his allega tions of Counsel’s ineffectiveness. Spencer’s Brief at 10. 6 As noted above, the PCRA court did not address any of the new claims that Spencer rais ed in his response to the Rule 907 notice. It reasoned that “as [Spencer] ha s had the benefit of filing a pro se petition and a review by [Counsel], he may not add new claims now apparently because he is unhappy with this Court’s determination that the original claims lack merit.” PCRA Court Order, 10/ 10/14, at n.1. The PCRA court is partially correct.

Where the petitioner does not seek leave to amend his petition after counsel has filed a Turner/Finley no-merit letter, the PCRA court is under no obligat ion to address new issues. In contrast, where the new issue is one concerning PCRA counsel's representation, a petitioner can preserve the issue by including that claim in his Rule 907 response or raising the issue while the PCRA court retains jurisdiction.

6 Specifically, Spencer alleges that Counsel was ine ffective for failing to raise trial counsel’s ineffectiveness for (1) not filing an appeal when Spencer requested that he do so and (2) not moving to withd raw Spencer’s guilty plea. Spencer’s Brief at 11.J-S40024-15

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Commonwealth v. Rigg , 84 A.3d 1080, 1085 (Pa. 2014) (internal citations omitted). Accordingly, Spencer properly raised cla ims of Counsel’s ineffectiveness in his response to the Rule 907 not ice. The PCRA court should have considered these before denying Spencer ’s petition. Accordingly, we remand this case so that the PCRA c ourt can review and decide the issues Spencer raised regarding Counsel’ s ineffectiveness, including the appointment of counsel and holding an evidentiary hearing if it should determine that either issue merits a hearing

. 7 See Commonwealth v. Johnson , 64 A.3d 622, 623-24 (Pa. 2014) (holding that PCR A court improperly found issues raised by pro se petitioner waived and remanding case for consideration of issues and appointment of counsel and evidentiary hearing if necessary).

7 One of these issues alleges that trial counsel did not file a direct appeal when Spencer requested that he do so, and that Coun sel was ineffective for failing to raise this claim on his behalf. Spencer ’s Brief at 11. In support of this claim, Spencer points to a letter he sent to t rial counsel, which he attached to his pro se PCRA petition, in which he t old trial counsel that he wanted to withdraw his plea and file an appeal. See id. ; PCRA Petition, 6/9/14, at Attachment 2. Our law provides that fai ling to file an appeal when requested to do so by a defendant amounts to i neffectiveness per se. See Commonwealth v. Halley , 870 A.2d 795, 801 (Pa. 2005); Commonwealth v. Lane , 81 A.3d 974, 981 (Pa. Super. 2013). Yet, as noted above, Spencer purportedly waived his direct appeal rights at the time of sentencing. See N.T., 7/3/13, at 15. For such a waiver to be vali d, however, it must be made knowingly, voluntarily and intelligently. Commonwealth v. Doty , 997 A.2d 1184, 1187 (Pa. Super. 2010). The only evidence of Spencer’s supposed waiver is a sta tement made by trial counsel, as detailed above. Accordingly, it appear s that there are genuine issues of fact as to whether trial counsel was inef fective for failing to file an appeal or whether there was a valid waiver of appel late rights.J-S40024-15

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Spencer’s remaining issues challenge the PCRA court ’s dismissal of his claims that trial counsel was ineffective for faili ng to “challenge a presumptive chemical test,” “investigate [his] ment al state” with regard to a possible “mental health/insanity defense,” “obtain exculpatory video evidence”

8 and promising that he would receive a sentence of only three to six months. Spencer’s Brief at 4, 24. Spencer alle ges that these instances of ineffectiveness induced him to plead guilty. We begin with Spencer’s claim that trial counsel in duced his plea by promising that he would receive a three to six mont h sentence. Spencer’s Brief at 15. The PCRA Court rejected this claim on the basis that at the plea hearing, Spencer acknowledged that he could receive a sentence up to the statutory maximum, both orally and in writing. PCR A Court Opinion, 9/8/14, at 6. The record supports this conclusion, as it r eveals that the trial court informed Spencer that he could be sentenced up to o ne year and ninety days of incarceration on the charges, and he acknowledge d this. N.T., 7/3/13, at 11; Statement of Understanding Rights Prior to Guil ty/No Contest Plea,

8 When presenting these three issues in his stateme nt of questions raised on appeal in his appellate brief, Spencer did not p hrase his challenges to these instances of alleged ineffectiveness in terms of inducing his plea. See Spencer’s Brief at 4. However, he makes this argum ent in his discussion of these issues. We could find these claims waived fo r failure to include them in his statement of questions involved. See Pa.R.A.P. 2116(a). We decline to do so in this instance. As we explain infra , Spencer preserved these issues by raising them obliquely in his initial PCR A petition and then directly in his response to the Rule 907 notice. We decline to let his failure to precisely frame the issues in this one instance for eclose our review thereof.J-S40024-15

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7/3/13, ¶ 4. Further, the record reveals Spencer’s acknowledgement that the trial court was not bound by any sentencing rec ommendation and that he was not made any promises as to the sentence he would receive. Statement of Understanding Rights Prior to Guilty/N o Contest Plea, 7/3/13, ¶¶ 5, 6. Accordingly, we find no error in the PCRA court’s determination that this issue is without merit. The PCRA court did not address the remaining three claims of ineffectiveness in its opinion, as it was of the op inion that they did not extend so far as to implicate the validity of Spenc er’s plea. PCRA Court Opinion, 9/8/14, at 7. However, a close reading of Spencer’s initial, pro se PCRA petition and his response to the Rule 907 noti ce reveals that Spencer did allege that trial counsel’s failure in these re gards induced his decision to enter a guilty plea. Accordingly, Spencer is entit led to have the PCRA court consider them. Therefore, on remand, the PCRA court shall consider these claims and hold a hearing on them if so required. Order vacated. Case remanded for further proceedin gs. Jurisdiction relinquished.J-S40024-15

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 7/27/2015