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[W] Commonwealth v. Malone4/7/2003
fter review of the PCRA Petition filed in this case and the relevant portions of the record, this Court is satisfied that there are no genuine issues of material fact, that Petitioner is not entitled to relief, and that no purpose would be served by further proceedings. Accordingly, this Court intends to dismiss the Petition with twenty (20) days of this Notice. Petitioner may respond within those twenty (20) days should he wish to do so. Pa.R.Cr.P. 1507(a). Order of Court, 1/15/02.
Thereafter, on February 4, 2002, the PCRA court dismissed Malone's PCRA petition, without a hearing, for "fail to state a claim upon which relief may be granted under the PCRA." Order of Court, 2/4/02. On March 5, 2002, the PCRA court appointed the Allegheny County Public Defender to represent Malone on appeal. Ms. Candace Cain, Esq., Malone's present counsel, filed a notice of appeal on Malone's behalf on March 6, 2002 and a concise statement of matters complained of on appeal.
In his appeal from the denial of PCRA relief, Malone raises the following issues for our consideration:
I. Did plea counsel render ineffective assistance when he failed to object to a defective plea colloquy which failed to inform [Malone] of the elements of the offenses or the punishment[,] resulting in an unknowing and involuntary plea[,] and for failure to move to withdraw the plea?
II. Did the [PCRA] court abuse its discretion in dismissing the post-conviction petition without a hearing where [Malone] presented facts that if proven would entitle him to relief?
Brief for Appellant, at 5.
In conjunction with his second issue, Malone argues, alternatively, that "if this court determines that the legal issues and facts as presented in the post conviction proceedings were not sufficiently pled or that the issue on appeal was not adequately preserved below, then post-conviction counsel was ineffective. . . ." Id. at 21. For the reasons set forth below, we find that Malone is entitled to relief based upon his alternative argument.
II. DISCUSSION
"When examining a post-conviction court's grant or denial of relief, our scope of review is limited to determining whether the court's findings were supported by the record and the court's order is otherwise free of legal error." Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa. Super. 1999), appeal denied, 759 A.2d 383 (Pa. 2000) (citation omitted).
To prevail on a claim alleging counsel's ineffectiveness under the PCRA, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's course of conduct was without any reasonable basis designed to effectuate his client's interest; and (3) that he was prejudiced by counsel's ineffectiveness, i.e., there is a reasonable probability that but for the act or omission in question the outcome of the proceeding would have been different. Commonwealth v. Abdul-Salaam, 808 A.2d 558, 561 (Pa. 2001) (citations omitted).
In Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 700 (Pa. 1998), our Supreme Court recognized that a PCRA petitioner's right to appointed counsel, guaranteed by Pennsylvania Rule of Criminal Procedure 904 (formerly 1504), requires "an enforceable right to effective post-conviction counsel." Therefore, PCRA counsel's assistance may be examined on appeal from the denial of PCRA relief. Commonwealth v. Lauro, ___ A.2d ___, 2003 WL 549892, at *6 (Pa. Super. 2003) (citation omitted). Similarly,
Pennsylvania courts have recognized expressly that every post-conviction litigant is entitled to "at least one meaningful opportunity to have . . . issues reviewed, at least in the context of
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