J-S48020-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

BRUCE GILLINS A/K/A/ ROBERT 

BRUCE GILLINS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1145 EDA 2019

Appeal from the PCRA Order Entered March 15, 2019

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0513171-1994

BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.

MEMORANDUM BY KING, J.: Filed: December 24, 2020

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.

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1 42 Pa.C.S.A. §§ 9541-9546. 
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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, 
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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 
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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 
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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 wellrecognized 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 
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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).
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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, where the rulebased right to counsel unconditionally attaches, may well be 

the defendant’s sole opportunity to seek redress for such 

errors and omissions. Without the input of an attorney, 

important rights and defenses may be forever lost.

Commonwealth v. J. Robinson, 970 A.2d 455, 458-59 (Pa.Super. 2009) 

(en banc). See also Commonwealth v. Perez, 799 A.2d 848, 851-52

(Pa.Super. 2002) (explaining indigent petition is entitled to appointment of 

counsel on first PCRA petition, even where petition appears untimely on its 

face, to determine whether petition is indeed untimely and if any timeliness 

exception applies). 

Further, we recognize that “a collateral petition to enforce a plea 

agreement is regularly treated as outside the ambit of the PCRA and under 

the contractual enforcement theory of specific performance. The designation 

of the petition does not preclude a court from deducing the proper nature of 

a pleading.” Commonwealth v. Kerns, 220 A.3d 607, 611-12 (Pa.Super. 

2019) (internal citations and quotation marks omitted). Plea bargains play a 

critical role in the criminal justice system of this Commonwealth:

Accordingly, it is critical that plea agreements are enforced, 

to avoid any possible perversion of the plea bargaining 
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system. The disposition of criminal charges by agreement 

between the prosecutor and the accused, ...is an essential 

component of the administration of justice. Properly 

administered, it is to be encouraged. 

In this Commonwealth, the practice of plea bargaining is 

generally regarded favorably, and is legitimized and 

governed by court rule.... A “mutuality of advantage” to 

defendants and prosecutors flows from the ratification of the 

bargain.

Assuming the plea agreement is legally possible to fulfill, 

when the parties enter the plea agreement and the court 

accepts and approves the plea, then the parties and the 

court must abide by the terms of the agreement. Specific 

enforcement of valid plea bargains is a matter of 

fundamental fairness. The terms of plea agreements are 

not limited to the withdrawal of charges, or the length of a 

sentence. Parties may agree to—and seek enforcement of—

terms that fall outside these areas.

Although a plea agreement occurs in a criminal context, it 

remains contractual in nature and is to be analyzed under 

contract-law standards. Furthermore, disputes over any 

particular term of a plea agreement must be resolved by 

objective standards. A determination of exactly what 

promises constitute the plea bargain must be based upon 

the totality of the surrounding circumstances and involves a 

case-by-case adjudication.

Any ambiguities in the terms of the plea agreement will be 

construed against the Government. Nevertheless, the 

agreement itself controls where its language sets out the 

terms of the bargain with specificity. ...

Commonwealth v. Snook, 230 A.3d 438, 444 (Pa.Super. 2020) (internal 

citations omitted). See also Commonwealth v. Koch, 654 A.2d 1168 

(Pa.Super. 1995) (explaining that Commonwealth’s legal inability to fulfill 

promise made in plea bargain resulted in breach of plea agreement such that 

defendant’s guilty plea was not knowing and voluntary). 
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In Betts, supra, the appellant had complied with Pitts by asserting 

PCRA counsel’s ineffectiveness in response to the PCRA court’s issuance of 

Rule 907 notice, and before entry of a final PCRA order. Betts, supra at 622. 

Nevertheless, the PCRA court did not consider the allegations of PCRA 

counsel’s ineffectiveness prior to dismissing his PCRA petition, so the 

appellant’s “concerns were not reviewed or investigated by the PCRA court in 

a meaningful way.” Id. at 623. Consequently, this Court held that the 

appellant “never received the assistance of counsel in arguing the merits of 

these ineffectiveness claims to the PCRA court.” Id. This Court reasoned:

Appellant’s rule-based right to effective counsel extends

throughout the entirety of his first PCRA proceeding. See 

Holmes, supra at 583; Henkel, supra at 22-23 (citing 

Pa.R.Crim.P. 904(F)(2)). Necessarily, Appellant had a right 

to effective counsel when he alleged [PCRA counsel’s] 

ineffectiveness in response to the PCRA court’s Rule 907 

notice. Id. However, as a matter of Pennsylvania law, he 

could not rely upon [PCRA] counsel to assist him in this 

specific context. See Commonwealth v. Spotz, 18 A.3d 

244, 329 n.52 (Pa. 2011) (“[C]ounsel cannot argue his or 

her own ineffectiveness”); see also, e.g., Commonwealth 

v. Ellis, 626 A.2d 1137, 1138-39 (Pa. 1993) (“[U]nder no 

other circumstances are counsel and client permitted to 

present opposing arguments”).

In this specific context, Appellant’s timely allegations of 

ineffectiveness created a “substantial” and “irreconcilable” 

conflict in his relationship with [PCRA counsel]. See

Pa.R.Crim.P. 122(C) (“A motion for change of counsel by a 

defendant for whom counsel has been appointed shall not 

be granted except for substantial reasons”); 

Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032, 

1041 n.10 (2011) (“To satisfy this standard, a defendant 

must demonstrate he has an irreconcilable difference with 

counsel that precludes counsel from representing him”). 

Our case law is replete with instances where allegations of 
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ineffectiveness have necessitated the appointment of 

substitute counsel in the post-collateral context. See, e.g., 

Commonwealth v. Fox, 383 A.2d 199, 200 (Pa. 1978) 

(“[W]e cannot assume that appellant’s [post-conviction] 

counsel adequately advised appellant of his own 

inadequacies ....”) (citing Commonwealth v. Sherard, 

384 A.2d 234, 234 (Pa. 1977) (same)).

* * *

In sum, we believe that Appellant is entitled to remand for 

the appointment of substitute PCRA counsel to prosecute 

these abeyant claims of ineffectiveness. Our Supreme Court 

has opined that remand and appointment of new PCRA 

counsel is appropriate in such circumstances:

An indigent petitioner has the right to appointment of 

counsel to assist in prosecuting a first PCRA petition. 

Where that right has been effectively denied by the 

action of court or counsel, the petitioner is entitled to 

remand to the PCRA court for appointment of counsel 

to prosecute the PCRA petition. The remand serves 

to give the petitioner the benefit of competent counsel 

at each stage of post-conviction review.

Commonwealth v. Kenney, 732 A.2d 1161, 1164 (Pa. 

1999); see also Commonwealth v. Cox, 204 A.3d 371, 

390 (Pa. 2019) (affirming Kenney for the proposition that 

“remand for appointment of counsel is appropriate remedy 

when the right to appointment [of] counsel has been 

effectively denied”).

Betts, supra at 623-24 (internal footnote omitted). 

Instantly, the record confirms that Appellant is indigent and that the 

current petition is his first PCRA petition. After receiving counsel’s “no-merit” 

letter and the Rule 907 notice, Appellant alleged PCRA counsel’s 

ineffectiveness in his February 12, 2019 pro se response. Notwithstanding 

Appellant’s allegations, the court did not address Appellant’s claims of PCRA 
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counsel’s ineffectiveness in its order denying PCRA relief or Rule 1925(a) 

opinion. Rather, the PCRA court adopted counsel’s timeliness analysis and 

decided Appellant’s current claims were time-barred under the PCRA. 

Notably, the Commonwealth concedes on appeal that Appellant’s claim 

that his guilty plea was invalid has arguable merit based on the terms of the 

parties’ negotiated plea agreement. (See Commonwealth’s Brief at 4, 6, 9). 

Nevertheless, the Commonwealth agrees with PCRA counsel and the court that 

Appellant’s claims are time-barred under the PCRA. Significantly, however, 

neither PCRA counsel nor the PCRA court considered whether Appellant’s 

current claims, which arguably sound in breach of his plea agreement, fall 

outside of the PCRA. See Snook, supra; Kerns, supra; Koch, supra. 

In light of the PCRA court’s failure to confront Appellant’s allegations of 

PCRA counsel’s ineffectiveness and the possibility that Appellant’s claims fall 

outside of the PCRA, the best resolution of this case is to vacate the order 

denying PCRA relief and remand for further proceedings. See Kenney, 

supra; Betts, supra. On remand, the court shall appoint substitute PCRA 

counsel who must: (1) review Appellant’s pro se allegations of PCRA counsel’s 

ineffectiveness;2 (2) discern whether Appellant’s claims fall outside of the 

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2 As this Court acknowledged in Betts, “Appellant’s assertions of [PCRA 

counsel’s] ineffectiveness may ultimately prove meritless. Our holding is 

concerned only with ensuring those claims are given proper consideration. 

Due to the nature of our holding, we express no opinion on the arguable merit 

of Appellant’s assertions.” Betts, supra at 624 n.13. 
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PCRA, such that the PCRA’s timeliness constraints would not apply;3 (3) file 

supplemental briefing limited to these issues within a reasonable time frame; 

and (4) continue to represent Appellant for the duration of these PCRA 

proceedings. The Commonwealth shall have a reasonable opportunity to 

respond. Thereafter, the PCRA court shall proceed as it deems appropriate. 

See id. (issuing similar instructions upon remand). 

Order vacated. Case remanded with instructions. Jurisdiction is 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/24/20

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3 To the extent Appellant’s claims are cognizable under the PCRA, we 

recognize that Appellant might not even be eligible for PCRA relief if he has 

finished serving his state sentence, timeliness considerations aside. See 42 

Pa.C.S.A. § 9543(a)(i) (explaining that to be eligible for PCRA relief, petitioner 

must be currently serving sentence of imprisonment, probation or parole for 

crime at issue). If substitute PCRA counsel decides Appellant’s claims are 

cognizable under the PCRA, counsel should analyze Appellant’s eligibility for 

PCRA relief in addition to the relevant timeliness analysis.