J-S29015-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHESTER CARR 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 5 WDA 2022

Appeal from the PCRA Order Entered November 30, 2021

In the Court of Common Pleas of Erie County 

Criminal Division at No(s): CP-25-CR-0000788-2018

BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.: FILED: JANUARY 6, 2023

Chester Carr appeals from the order entered in the Erie County Court of 

Common Pleas on November 30, 2021, dismissing his petition filed pursuant 

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Carr’s 

court-appointed counsel seeks to withdraw pursuant to the Pennsylvania 

Supreme Court’s recent holding in Commonwealth v. Bradley, 261 A.3d 

381 (Pa. 2021). After careful review, vacate the PCRA court’s order, grant 

counsel leave to withdraw, and remand for further proceedings consistent with 

this memorandum. 

A previous panel of this Court set forth the factual background of this 

case as follows:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-S29015-22

- 2 -

[Carr’s] charges arose on April 27, 2017, when the victim ... 

purchased heroin laced with [f]entanyl from [Carr] and died from 

an overdose. ... At the time, [Carr] was incarcerated at the Erie 

County Prison. However, he used the prison telephone system [to 

direct his 16-year old girlfriend] where she could find [Carr’s] 

stash of drugs, prepare the drugs for delivery, contact [the 

victim,] and deliver the drugs to her. [Carr’s girlfriend] drove to 

[the victim’s] house and delivered the drugs [pursuant to Carr’s] 

instructions. 

Commonwealth v. Carr, 227 A.3d 11, 12 (Pa. Super. 2020) (citation 

omitted).

On August 14, 2018, following a two-day trial, a jury found Carr guilty 

of conspiracy to commit drug delivery resulting in death, drug delivery 

resulting in death, conspiracy to commit possession with the intent to deliver, 

possession with intent to deliver, possession, paraphernalia, recklessly 

endangering another person, and criminal use of a communication facility. The 

trial court imposed sentence, and Carr filed a timely post-sentence motion to 

modify his sentence, which the trial court denied. On January 21, 2020, we 

affirmed Carr’s judgment of sentence on direct appeal. 

On January 14, 2021, Carr filed a timely pro se PCRA petition. Counsel 

was appointed and filed a supplemental PCRA petition. Evidentiary hearings 

were held in April 2021 and again in June 2021. On November 30, 2021, the 

PCRA court entered an order and opinion denying the PCRA petition. PCRA 

counsel filed a timely notice of appeal on Carr’s behalf. 

Two months later, Carr filed a pro se motion for appointment of new 

counsel in this Court, asserting his PCRA counsel was ineffective. PCRA counsel 
J-S29015-22

- 3 -

then filed a petition for leave to withdraw as counsel and requested a remand 

for appointment of alternative appellate counsel. PCRA counsel conceded that 

Carr had asserted claims of ineffective assistance against him, implicating our 

Supreme Court’s holding in Bradley. Our Court deferred consideration of the 

petition to withdraw to the merits panel. 

PCRA counsel subsequently filed a brief on Carr’s behalf. The brief did 

not include any mention of the claims of PCRA counsel ineffectiveness. 

A few days later, Carr filed a pro se application for relief with this Court, 

seeking new counsel not associated with PCRA counsel. Specifically, he 

asserted there was a conflict of interest with current PCRA counsel since 

counsel had filed a petition to withdraw. This Court denied the application for 

relief based on counsel filing a brief on Carr’s behalf.

A month later, Carr filed a pro se motion for application of enlargement 

of time to file a supplemental amended brief, in which Carr asserted the 

counseled brief was inadequate and that Carr had issues of arguable merit 

that counsel failed to include in the initial brief. This Court again denied relief 

based on counsel filing a brief on Carr’s behalf.

Initially, we address Carr’s allegations of ineffective assistance of PCRA 

counsel. An indigent person is entitled to the appointment of counsel for 

proceedings on a first PCRA petition. See Commonwealth v. Albert, 561 

A.2d 736, 738 (Pa. 1989). “In this context, the right to counsel conferred on 

initial PCRA review means an enforceable right to the effective assistance of 
J-S29015-22

- 4 -

counsel.” Commonwealth v. Betts, 240 A.3d 616, 621 (Pa. Super. 2020) 

(citations and internal quotation marks omitted). A petitioner's “rule-based 

right to effective counsel extends throughout the entirety of his first PCRA 

proceeding.” Id. at 623.

To obtain review of a claim that PCRA counsel provided ineffective 

assistance, a PCRA petitioner is required to raise the challenge at the first 

opportunity to do so. See Bradley, 261 A.3d at 401. Specifically, “a PCRA 

petitioner may, after a PCRA court denies relief, and after obtaining new 

counsel or acting pro se, raise claims of PCRA counsel’s ineffectiveness at the 

first opportunity to do so, even if on appeal.” Id. at 401. 

Here, Carr raised his challenge to PCRA counsel's representation for the 

first time in a pro se motion filed a little over a month after counsel filed a 

notice of appeal on his behalf. When Carr asserted PCRA counsel's 

ineffectiveness, a conflict was created with PCRA counsel. This conflict was 

further reinforced by counsel’s acknowledgment of Carr’s claims against him, 

and request to withdraw as counsel. Nevertheless, this Court accepted PCRA 

counsel’s brief filed on Carr’s behalf, which wholly ignored Carr’s claims of 

ineffectiveness of PCRA counsel. 

We conclude that PCRA counsel has acted appropriately in seeking 

withdrawal and a remand. Carr could not rely on PCRA counsel to assist him 

in pursuing these ineffectiveness claims because counsel cannot argue their 

own ineffectiveness. See Betts, 240 A.3d at 623 (citing Commonwealth v. 
J-S29015-22

- 5 -

Spotz, 18 A.3d 244, 329 n.52 (Pa. 2011)) (“[C]ounsel cannot argue his or 

her own ineffectiveness”). Nor was Carr able to raise these claims with 

alternate counsel or pro se, see Bradley, 261 A.3d at 401, as this Court 

denied him alternate counsel, and denied him the ability to file a pro se 

supplemental brief. 

Under these circumstances, we must remand for the PCRA court to 

appoint Carr new counsel to assist Carr in raising his claims that PCRA counsel 

was ineffective. This remand necessarily includes the opportunity for Carr to 

further develop these claims before the PCRA court and allow the court to rule 

on these claims in the first instance. See Bradley, 261 A.3d at 402. We 

remind all parties that any claims of PCRA counsel ineffectiveness must 

“provide more than mere boilerplate assertions[.]” See id.

Order vacated. Motion to withdraw as counsel granted. Case remanded 

with instructions. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/6/2023 
J-S29015-22

- 6 -