Commonwealth v. Williams

*634 JUSTICE CASTILLE,

CONCURRING AND DISSENTING.

I concur in the Majority’s ultimate judgment, which remands for a determination on the merits, with the case to be treated as a timely first petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. However, I would confine our discussion to much narrower grounds and would not address or decide alternative and/or contingent issues which become irrelevant. Moreover, because I disagree with the Majority’s reasoning on some points, including those points which I believe the Court should not reach at all, I find myself in a posture of partial and respectful dissent.

In my view, the narrowest sufficient basis of decision in this case is one simply holding that the PCRA court erred in treating this as a serial PCRA petition, subject to the jurisdictional time constraints of the amended PCRA, see 42 Pa.C.S. § 9545(b), because the petition the court deemed to be appellant’s first petition was: (1) not decided on the merits and (2) not dismissed with prejudice. Appellant’s initial pro se PCRA petition was filed six days after his initial post-conviction pleading, which was comprised of a request to be granted in forma pauperis status and to be appointed PCRA counsel. The PCRA petition, as well as the anticipatory pleadings respecting indigency and counsel, remained pending with no action by the PCRA court, as appellant sought to pursue federal habeas corpus remedies. The request(s) to withdraw were never acted upon by the court, much less was any order entered dismissing the initial pleadings with prejudice. Contrast, Commonwealth v. Rienzi, 573 Pa. 503 , 827 A.2d 369 , 2003 WL 1337334 (filed March 19, 2003) (untimely second petition cannot be deemed amendment of timely first petition where first petition was withdrawn at behest of petitioner’s counsel without prejudice). On these facts alone, I would hold that appellant is now, and always was, pursuing a single PCRA petition which was timely filed and which must be analyzed by the PCRA court upon the merits as a timely first petition.

*635 The Majority holds as much, see Op. at 987, but goes on to reach additional and alternative arguments raised by appellant which, in my view, are not strictly necessary to our decision. I understand why appellant forwarded these additional arguments, faced as he was with a very late, retroactive finding by the PCRA court that his petition was a serial one subject to the PCRA time-bar. The injustice of the decision below is so patent that I also understand the Court’s temptation to address appellant’s additional arguments. But, I believe that the better course is for the Court not to pass upon questions nonessential to our mandate. This is particularly so because the timing of this case—the amendments to the PCRA, including the time-bar and serial petition restriction, became effective as the matter was pending—render this situation distinctly unlikely to occur again.

Preliminarily, I offer some comment on the Majority’s discussion of then-Rule 1505 of the Rules of Criminal Procedure, which governed the withdrawal of PCRA petitions. 1 Construing the plain language of the Rule, the Majority correctly notes that it “explicitly demanded action from a judge allowing amendment or withdrawal of a petition.” Op. at 987. Accord id. at 989. This is certainly true so far as the Rule goes. However, I think it is important to emphasize that the Rule does not necessarily preclude a would-be PCRA litigant from unilaterally discontinuing an action by notice or praecipe. The Majority overlooks the fact that a court cannot force a petitioner to litigate a PCRA action against his or her will any more than it can force the plaintiff or moving party in any action to continue with a suit. The reason to seek court approval of a withdrawal, it seems to me, is precisely to ensure against unintended and deleterious collateral consequences— ie. , it affords the party an opportunity to receive court assurance that the withdrawal will be without prejudice. In this case, appellant did not elect to simply discontinue this matter; instead, he sought leave of court to do so. Having invoked this avenue of withdrawal, I agree with the Majority *636 that the matter cannot be deemed to have been effectively withdrawn without court approval—much less withdrawn with prejudice (in the sense of counting as a first PCRA petition). That the matter cannot be deemed to have been withdrawn with prejudice on this record is particularly the case because, as the Majority correctly notes, the PCRA court never acted upon appellant’s anticipatory pro se filing, which requested recognition of in forma pauperis status and the concomitant appointment of counsel.

The Majority also suggests that appellant’s motion to withdraw cannot have been effective because counsel had not been appointed. The Majority would hold that appellant was entitled to appointment of counsel. Op. at 989-90. However, the entitlement to appointed counsel at the relevant time was not automatic. At the times relevant here, a PCRA petitioner (including a petitioner in a capital case) was entitled to appointment of PCRA counsel on a first petition only if he satisfied the judge that he “is unable to afford or otherwise procure counsel.” Pa.R.Crim.P. 904(B) (formerly Rule 1504(B)). Nevertheless, appellant here specifically requested both a determination of indigency and appointment of counsel: under these specific factual circumstances, it certainly would have been error for the court to dismiss the PCRA petition with prejudice, and it was no less erroneous to deem it withdrawn with prejudice. However, since the court did not in fact dismiss the petition or rule upon the motions, we need not reach this question or the other derivative questions the Majority goes on to discuss.

The Majority further suggests in very broad terms that a capital PCRA petitioner cannot effectively withdraw a PCRA petition without the court first conducting a colloquy. Again, since the motion to withdraw this PCRA petition was never granted, this question of “the necessity for a colloquy "with a defendant seeking to waive significant rights” is necessarily academic. Moreover, because the Rules of Criminal Procedure were amended in 2000 to address this very issue in capital cases, it is an issue we should take pains not to address. This is even more so the case because the right to file a PCRA petition is not peculiar to capital convicts; it *637 applies to non-capital cases as well. The Rules of Criminal Procedure applicable here did not require a colloquy before a PCRA petition could be withdrawn. Indeed, before the PCRA was amended in 1996 to include the time-bar, and so long as a withdrawal was understood to be without prejudice, there would simply be no reason to conduct a colloquy. It was up to the petitioner—be he sentenced to death, or to county prison, or to state time, or to probation—to determine if and when to pursue collateral relief. Moreover, even after the time-bar was enacted, a petitioner can still effectively waive PCRA review entirely simply by never filing a petition. If a colloquy were required to make a waiver of PCRA review valid, then PCRA petitions must by extension be self-filing.

In summary, I agree with the Majority that the request to withdraw, never having been acted upon by the Court, did not convert appellant’s initial pro se filing into a first petition which was dismissed with prejudice. Accordingly, I join in the court’s mandate. However, I respectfully disagree with the decision to address additional issues not necessary to effect our mandate, and I do not agree with all that the Majority says upon those questions. Accordingly, I dissent in part.

Justice EAKIN joins this concurring and dissenting opinion.

. The Rules have since been renumbered, effective April 1, 2001. Former Rule 1505 is now renumbered as Rule 905. Pa. R.Crim.P. 905, Note.