Com. v. Rodriguez Areralo, C.

J-S08036-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

CESAR OBDULIO RODRIGUEZ :

ARERALO :

: No. 773 MDA 2021

Appellant :

Appeal from the PCRA Order Entered May 13, 2021

In the Court of Common Pleas of Franklin County Criminal Division at

No(s): CP-28-CR-0000167-2018

BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED: JUNE 7, 2022

Cesar Obdulio Rodriguez Areralo1 (Appellant) appeals, pro se, from the

order entered in the Franklin County Court of Common Pleas, dismissing his

first petition for collateral relief filed pursuant to the Post Conviction Relief Act

(PCRA).2 Appellant seeks relief from the judgment of sentence imposed

following his jury conviction of attempted involuntary deviate sexual

intercourse (IDSI)3 and related charges for his sexual assault of another man

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1 Appellant’s last name is spelled “Arevalo” in most of the trial court

documents, and in the prior appeal to this Court. Appellant, himself, has

spelled his name as both “Arevalo” and “Areralo” in various documents.

Because he spelled his name “Areralo” in the pro se notice of appeal sub

judice, we will refer to him accordingly. See Appellant’s Notice of Appeal,

6/15/21.

2 42 Pa.C.S. §§ 9541-9546.

3 18 Pa.C.S. §§ 901, 3123(a)(1).

J-S08036-22

at a local gym. On appeal, he argues the PCRA court erred when it granted

appointed counsel’s petition to withdraw and dismissed his petition as

untimely filed. For the reasons below, we vacate the order dismissing his

petition and remand for further proceedings.

The relevant facts and procedural history are as follows. On the morning

of January 2, 2018, Appellant sexually assaulted a 29-year-old male, who is

“on the Asperger’s spectrum[,]”4 in the locker room of a local gym. See

Commonwealth v. Rodriguez Arevalo, 96 MDA 2019 (unpub. memo. at 1-

2) (Pa. Super. July 31, 2019). On November 8, 2018, a jury convicted

Appellant of two counts of attempted IDSI, and one count each of attempted

rape, indecent assault and indecent exposure.5 Appellant was sentenced to

an aggregate term of 117 to 540 months’ imprisonment on December 19,

2018.6 At both the jury trial and sentencing hearing, Appellant was assisted

by a Spanish interpreter.

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4 At trial, the victim’s mother described the victim’s “cognitive and social

challenges associated with his Asperger’s, which include severe anxiety and

ADHD, although she [portrayed] him as being ‘on the high [functioning] side

of his disability.’” Rodriguez Arevalo, 96 MDA 2019 (unpub. memo. at 2).

She further explained that he is a “very black-and-white person” who has a

“very strong will to please [and] do good.” Id.

5 See 18 Pa.C.S. §§ 3121(a)(1), 3126(a)(2), 3127(a).

6 Appellant was determined not to meet the criteria for classification as a

sexually violent predator under the Sexual Offender Registration and

Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10 to 9799.75. See Trial Ct.

Op., 8/6/21, at 2 n.5. However, as a Tier III sexual offender, he is required

to register as a sex offender for life. Id.; see 42 Pa.C.S. §§ 9799.14(d)(4),

(Footnote Continued Next Page)

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Appellant filed a timely direct appeal, challenging the trial court’s

admission of the victim’s hearsay statements through his mother, and the

sufficiency of the evidence supporting his convictions. See Rodriguez

Arevalo, 96 MDA 2019 (unpub. memo. at 8). Appellant was represented at

trial and on direct appeal by Shawn M. Stottlemyer, Esquire. On July 31,

2019, a panel of this Court affirmed, concluding Appellant’s claims were

waived or underdeveloped. See id. at 10-14. Appellant did not seek review

in the Pennsylvania Supreme Court; thus, for purposes of collateral review,

his judgment of sentence was final on August 30, 2019. See Pa.R.A.P.

1113(a) (petition for allowance of appeal in Supreme Court must be filed

“within 30 days after entry of the order . . . sought to be reviewed”); 42

Pa.C.S. § 9545(b)(3) (“[A] judgment becomes final at the conclusion of direct

review, including discretionary review in the . . . the Supreme Court of

Pennsylvania, or at the expiration of time for seeking the review.”).

On November 19, 2020, Appellant filed a pro se PCRA petition,7

asserting trial counsel was ineffective for failing to obtain a video of the

incident, failing to call an unnamed witness, and for informing him “the court

would not permit black people” on the jury. Appellant’s Motion for Post

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(14) (conviction of attempted IDSI under 18 Pa.C.S. § 3123 is a Tier III sexual

offense), 9799.15(a)(3) (individual convicted of a Tier III sexual offense shall

register for life).

7This petition, filed more than a year after Appellant’s judgment of sentence

was final, was facially untimely. See 42 Pa.C.S. § 9545(b)(1) (any petition

must be filed within one year of date judgment of sentence is final).

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Conviction Collateral Relief, 11/19/20, at 3. Since this was Appellant’s first

petition, the PCRA court appointed Erich Hawbaker, Esquire, to represent him,

and directed Attorney Hawbaker to file an amended petition within 45 days, if

he deemed an amendment necessary. See Order, 12/2/20. After requesting

and receiving two extensions of time, on March 19, 2021, Attorney Hawbaker

filed a motion to withdraw as counsel and a Turner/Finley8 “no merit” letter.

See Motion to Withdraw, 3/19/21; No Merit Letter, 3/19/21. He asserted that

he reviewed the record and corresponded with Appellant “by mail and by

telephone[,]” but determined that Appellant’s petition was untimely filed, and

that Appellant presented no claim that qualified as an exception to the PCRA’s

one-year timing requirements. No Merit Letter at 2-3 (unpaginated). Notably,

Attorney Hawbaker also stated that although Appellant required a Spanish

interpreter during the trial court proceedings, he “has had no difficulty

communicating with [Appellant] over the telephone, and all of his written

correspondence in English has been clear and fully understandable.” Id. at 2.

On April 22, 2021, the PCRA court issued Pa.R.Crim.P. 907 notice of its

intent to dismiss Appellant’s petition without first conducting an evidentiary

hearing, and an accompanying opinion in which the court determined

Appellant’s petition was untimely filed. See Order, 4/22/21; PCRA Ct. Op.

4/22/21, at 14. The court provided Appellant with 20 days to respond to the

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8Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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proposed dismissal of the petition and its intent to grant counsel’s petition to

withdraw. Order, 4/22/21.

Appellant filed a timely pro se response on May 11, 2021, in which he

asserted the following:9 (1) Attorney Hawbaker failed to consult with him

before petitioning to withdraw; (2) Attorney Hawbaker failed to discover and

raise meritorious claims of trial counsel’s ineffective assistance; (3) Appellant

is “from a foreign country” and is “in need of a translator[;]” (4) the delayed

filing of his petition was due to the prison’s “‘enhanced quarantine’ which

restricted prisoners’ access to [the] facility’s Law Library” as a result of the

Covid-19 pandemic; and (5) Attorney Hawbaker “could have amended

[Appellant’s] Petition to properly and fully plea[d] this claim[.]” See

Appellant’s Response to Proposed Dismissal of [Appellant’s] PCRA Petition &

Attorney Hawbaker’s Motion to Withdraw as Counsel, 5/11/21, at 1-3.

Appellant requested the PCRA court either deny Attorney Hawbaker’s petition

to withdraw or appoint new counsel. Id. at 1.

Two days later, on May 13, 2021, the PCRA court dismissed Appellant’s

petition as untimely filed and granted Attorney Hawbaker’s request to

withdraw. The PCRA court referred to its April 22nd opinion and stated,

summarily, that Appellant’s Rule 907 response and amended petition “fail to

prove any additional cognizable bases for exception to the PCRA’s timeliness

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9 Appellant attached a pro se amended petition to his response.

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requirement.” Order, 5/13/21, at 1 (unpaginated). This timely pro se appeal

followed.10

Appellant raises the following three issues for our review:

a. Whether the [PCRA] court erred in dismissing Appellant’s pro

se [PCRA petition] and granting Attorney Hawbaker’s Motion to

Withdraw as Counsel when Appellant explained the petition

met the exception to the PCRA’s timeliness requirement as the

reason for the petition’s untimeliness was due to governmental

shutdowns related to [the COVID-19] pandemic, and Appellant

requested that counsel not be allowed to withdraw without

assisting Appellant in developing legal arguments relating to

the petition[?]

b. Whether [PCRA] counsel, Attorney Hawbaker, rendered

ineffective assistance of counsel by not counseling with

Appellant concerning [the] reason why the petition met the

exception to the PCRA’s timeliness requirement and for failing

to identify and properly/fully plea[d] Appellant’s legal

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10Although Appellant’s notice of appeal was docketed on June 15, 2021, more

than 30 days after the order dismissing his petition, upon inquiry from this

Court, Appellant provided a cash slip and certificate of service reflecting that

he presented the document to prison authorities on June 7, 2021. Thus,

pursuant to the prisoner mailbox rule, Appellant’s appeal was timely filed. See

Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011)

(“Under the prisoner mailbox rule, we deem a pro se document filed on the

date it is placed in the hands of prison authorities for mailing.”).

We note, too, that Appellant complied with the PCRA court’s directive to

file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

The court issued an opinion pursuant to Pa.R.A.P. 1925(a) on August 6, 2021.

Thereafter, on August 17, 2021, Appellant filed two pro se motions

before this Court: one seeking the appointment of an interpreter, and the

other seeking the appointment of PCRA counsel. This Court denied both

motions on September 14th, without prejudice to Appellant to seek relief in

the trial court. See Order, 9/14/21. The trial court docket reveals Appellant

subsequently filed, in the PCRA court, three motions for the appointment of

both counsel and an interpreter, all of which were denied.

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arguments as well as for abandoning Appellant before the court

actually granted his Motion to Withdraw as Counsel[?]

c. Whether . . . Attorney Hawbaker[ ] rendered ineffective

assistance of counsel by failing to articulate Appellant’s reasons

to the court regarding why the petition met the exception to

the PCRA’s timeliness requirement and failing to submit

documentation in support of Appellant’s claims to prove

governmental shutdowns and institutional shutdowns in

relation to [the COVID-19] pandemic creating [a]

governmental interference regarding Appellant timely filing the

petition[?]

Appellant’s Brief at 2 (unpaginated) (some capitalization omitted).

When considering the propriety of an order dismissing a PCRA petition,

[o]ur standard of review . . . is whether that determination is

supported by the evidence of record and is free of legal error. The

PCRA court’s findings will not be disturbed unless there is no

support for the findings in the certified record.

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

and quotation marks omitted).

In the opinion accompanying its Rule 907 notice, the PCRA court

determined that Appellant’s petition was untimely filed, and Appellant had

failed to prove the applicability of any of the PCRA’s timing exceptions.11 See

PCRA Ct. Op., 4/22/21, at 4-14. The court also indicated its intention to grant

Attorney Hawbaker’s petition to withdraw. In his timely response, Appellant

raised the ineffective assistance of Attorney Hawbaker, asserting counsel

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11 See 42 Pa.C.S. § 9545(b)(1)(i) (PCRA petition must be filed within one-

year of the date the judgment becomes final unless petitioner pleads and

proves, inter alia, “the failure to raise the claim previously was the result of

interference by government officials with the presentation of the claim in

violation of the Constitution or laws of this Commonwealth or the Constitution

or laws of the United States”).

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failed to consult with him before seeking to withdraw, secure the assistance

of an interpreter, and argue the applicability of the governmental interference

exception to the PCRA timeliness requirement as a result of “restrictions and

governmental shutdowns” due to the COVID-19 pandemic. See Appellant’s

Response to Proposed Dismissal of [Appellant’s] PCRA Petition & Attorney

Hawbaker’s Motion to Withdraw as Counsel at 1-3. The PCRA court

acknowledges that it did “not address [Appellant’s] allegations of PCRA

counsel’s ineffective representation” before dismissing the petition, and

“concede[s] that this may have been error.” PCRA Ct. Op., 8/6/21, at 5. We

agree.

It is well-established that a PCRA petitioner has a “rule-based right to

the appointment of counsel for a first PCRA petition.” Commonwealth v.

Bradley, 261 A.3d 381, 391 (Pa. 2021), citing Pa.R.Crim.P. 904. Moreover,

this rule-based right is enforceable regardless of the merits of the underlying

claims, and even when it appears the petition is untimely on its face. See

Commonwealth v. Kelsey, 206 A.3d 1135, 1139 (Pa. Super. 2019);

Commonwealth v. Ramos, 14 A.3d 894, 895 (Pa. Super. 2011) (when

petition is facially untimely, petitioner “is entitled to representation for

assistance in determining . . . whether any exception to the normal time

requirements is applicable.”). As our Supreme Court has explained: “The

guidance and representation of an attorney during collateral review ensures

that meritorious legal issues are recognized and addressed, and that meritless

claims are abandoned.” Bradley, 261 A.3d at 391-92.

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We also recognize, however, that appointed PCRA counsel may petition

to withdraw if, after a “diligent review of the case,” counsel concludes that the

issues the petitioner seeks to raise “lack merit.” Commonwealth v. Muzzy,

141 A.3d 509, 511 (Pa. Super. 2016). Following the dictates of

Turner/Finley, counsel must

submit a “no-merit” letter to the trial court, or brief on appeal to

this Court, detailing the nature and extent of counsel’s diligent

review of the case, listing the issues which petitioner wants to

have reviewed, explaining why and how those issues lack merit,

and requesting permission to withdraw.

Counsel must also send to the petitioner: (1) a copy of the

“no merit” letter/brief; (2) a copy of counsel’s petition to

withdraw; and (3) a statement advising petitioner of the

right to proceed pro se or by new counsel.

Id. at 510–11 (citation omitted). When appointed counsel has satisfied these

technical requirements, the PCRA court (or this Court) “must then conduct its

own review of the merits of the case[, and if it] agrees with counsel[,] the

court will permit counsel to withdraw and deny relief.” Id. at 511 (citation

omitted).

Because they have a right to effective PCRA counsel, petitioners also

have the right to assert counsel’s ineffectiveness. Until recently — and at the

time of the PCRA proceedings in this case — “a petitioner was required to raise

PCRA counsel’s ineffectiveness in response to the PCRA court’s Rule 907 notice

of intention to dismiss the petition.” Bradley, 261 A.3d at 397. Otherwise,

any challenge asserting PCRA counsel’s ineffective assistance was deemed

waived. Id. In Bradley, however, the Supreme Court acknowledged that the

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Rule 907 approach was “largely impractical and ineffective[,]” and held a PCRA

petitioner should be permitted “to raise claims of ineffective assistance of

counsel at the first opportunity to do so, even when on appeal.” Id. at 399,

401. The Court further opined:

In some instances, the record before the appellate court will

be sufficient to allow for disposition of any newly-raised

ineffectiveness claims. However, in other cases, the appellate

court may need to remand to the PCRA court for further

development of the record and for the PCRA court to consider such

claims as an initial matter. Consistent with our prior case law, to

advance a request for remand, a petition would be required to

provide more than mere “boilerplate assertions of PCRA counsel’s

ineffectiveness[;]” however, where there are “material facts at

issue concerning [claims challenging counsel’s stewardship] and

relief is not plainly unavailable as a matter of law, the remand

should be afforded[.]”

Id. at 402 (citations omitted).

Under either approach (Bradley or pre-Bradley), Appellant properly

challenged PCRA counsel’s stewardship. In particular, Appellant argued that

Attorney Hawbaker failed to address Appellant’s claim that COVID-19 related

“restrictions and governmental shutdowns” interfered with his ability to file a

timely petition. See Appellant’s Response to Proposed Dismissal of

[Appellant’s] PCRA Petition & Attorney Hawbaker’s Motion to Withdraw as

Counsel at 3; Appellant’s Brief at 7, 9. Moreover, while the Commonwealth

suggests “[t]his very argument [has been] rejected by this Court” in a recent

unpublished memorandum decision, we conclude that decision is factually

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distinguishable. See Commonwealth’s Brief at 11-12, citing Commonwealth

v. Sturgis, 196 MDA 2021 (unpub. memo.) (Pa. Super. Dec. 22, 2021).12

In Sturgis, like here, the petitioner filed his first PCRA petition more

than one year after the judgment of sentence was final. See Sturgis, 196

MDA 2021 (unpub. memo. at 2). The PCRA court ultimately dismissed the

petition as untimely filed. Id. On appeal, the petitioner argued he satisfied

the “governmental interference” timeliness exception because “he was

prevented from filing his PCRA petition on time due to libraries being closed

at the prison.” Id. at 6. This assertion was based “on a letter he received

from the Acting General Counsel of the Department of Corrections that stated

the general libraries would be temporarily closed due to the COVID-19

pandemic[,]” and the petitioner’s mistaken belief that this notice applied to

the law libraries as well. Id. The letter at issue, however, “clearly state[d]

that services for the law library will continue as needed.” Id. In denying

relief, the Sturgis panel opined:

[T]he letter is not evidence that [the petitioner] was prevented

from accessing the law library to file his PCRA petition. Nor has

[he] presented any arguments regarding an inability to read the

letter, an explanation why he needed to use the law library to

prepare his petition, or if he made any attempt at all to access

services to file his petition and if those attempts were denied. His

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12Although we are not bound by the holding of an unpublished memorandum

decision, we may consider such decisions, filed after May 1, 2019, for their

persuasive value. See Commonwealth v. Holt, 270 A.3d 1230, 1236 n.2

(Pa. Super. 2022); Pa.R.A.P. 126(b) (“non-precedential” Superior Court

decisions filed after May 1, 2019 may be cited for persuasive value).

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apparent misinterpretation of the letter simply does not constitute

governmental interference.

Id. at 6-7.

In the present case, Appellant does not rely solely upon a similar letter

from the Department of Corrections. Rather, he asserts his access to the law

libraries was the result of “enhanced quarantine’ which restricted prisoners’

access to [the] facility’s Law Library and . . . to the Courts.” Appellant’s

Response to Proposed Dismissal of [Appellant’s] PCRA Petition & Attorney

Hawbaker’s Motion to Withdraw as Counsel at 3; Appellant’s Brief at 9

(unpaginated).13 Accordingly, Appellant should be provided the opportunity

to prove his claim of governmental interference with the assistance of

counsel.14

Moreover, while we recognize the PCRA court belatedly addressed

Appellant’s ineffectiveness claims and governmental interference argument in

its Rule 1925(a) opinion, “[b]y that point, the deprivation of Appellant’s right

to counsel was already a fait accompli.” Betts, 240 A.3d at 622 n.11. As in

Betts, here, it is evident that “the PCRA court neither recognized the

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13Appellant also claims that while he has attempted to obtain documents from

the Franklin County Prison supporting his allegations, he has been unable to

obtain all the relevant documents. Appellant’s Brief at 9 (unpaginated). Thus,

he seeks the assistance of counsel to prove his allegations. See id.

14But see Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010)

(appellant failed to demonstrate “restricted incarceration status of capital

inmates . . . constitutes governmental interference” pursuant to PCRA timing

exception because he did not “show any of the conditions of his incarceration

were illegal, as required to meet the . . . exception”).

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significance of [Appellant’s Rule 907 response], nor considered its contents

prior to dismissing Appellant’s PCRA petition.” Id. at 622 (footnote omitted).

Accordingly, we conclude Appellant is entitled to remand for the

appointment of PCRA counsel to assist him in litigating his allegations

concerning Attorney Hawbaker’s ineffective assistance. See Betts, 240 A.3d

at 624. Thus, we vacate the order dismissing Appellant’s PCRA petition, and

remand for the appointment of counsel to review Appellant’s pro se claims

asserting Attorney Hawbaker’s ineffectiveness, and the filing of a

supplemental brief addressing those claims. See id. at 625. “Thereafter, the

PCRA court shall have the discretion to proceed as it deems fit[,]” including

granting new counsel the opportunity to file an amended PCRA petition on

Appellant’s behalf or denying PCRA relief. Id.

Order vacated. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/07/2022

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