OPINION BY GANTMAN, P.J.:
Appellant, Quawi Smith, appeals from the order entered in the Philadelphia Court of Common Pleas, which denied his first petition brought pursuant to the Post Conviction Relief Act ("PCRA").
The relevant facts and procedural history are as follows:
(PCRA Court Opinion, filed January 15, 2015, at 1-2) (internal citations and footnotes omitted).
Appellant raises two issues for our review:
(Appellant's Brief at i-ii).
Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Conway, 14 A.3d 101 (Pa.Super.2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super.2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). "[A] petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuine issue concerning any material fact and the petitioner is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings." Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa.Super.2007), appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008); Pa.R.Crim.P. 907(1). "A reviewing court on appeal must examine each of the issues raised in the PCRA petition in light of the record in order to determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and in denying relief without an evidentiary hearing." Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa.Super.2007), appeal denied, 594 Pa. 685, 934 A.2d 72 (2007).
Appellant asserts he had a constitutional right to effective trial and appellate counsel. Appellant avers he needed an effective initial-review PCRA attorney to develop fully and meaningfully present his trial and appellate counsel ineffectiveness claims, which is a federal due process right. Appellant maintains he had a state-created liberty interest in obtaining relief when he filed his pro-se PCRA petition based on ineffective assistance of counsel, and the Commonwealth had to afford him reasonable procedures to vindicate his liberty interest in obtaining relief based on trial counsel's ineffectiveness. Appellant asserts he had a federal due process right to an effective PCRA attorney to uphold this state-created liberty interest.
Appellant also contends his rule-based right to effective initial review PCRA counsel qualifies as a state-created liberty
As a prefatory matter, we observe that due process requires the post-conviction process to be fundamentally fair, even though procedural due process protections for PCRA proceedings are less stringent than they are for a trial or direct appeal. Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264 (2007). "Thus, petitioners must be given the opportunity for the presentation of claims at a meaningful time and in a meaningful manner." Id. at 398, 930 A.2d at 1273.
Pennsylvania law makes clear:
Commonwealth v. Haag, 570 Pa. 289, 307-08, 809 A.2d 271, 282-83 (2002), cert. denied, 539 U.S. 918, 123 S.Ct. 2277, 156 L.Ed.2d 136 (2003) (internal citations and most quotations marks omitted). The rule-based right to counsel and to effective assistance of counsel extends throughout the post-conviction proceedings, including any appeal from the disposition of the PCRA petition. Commonwealth v. Quail, 729 A.2d 571, 573 (Pa.Super.1999); Pa. R.Crim.P. 904(E). "[O]nce counsel has entered an appearance on a [petitioner's] behalf he is obligated to continue representation until the case is concluded or he is granted leave by the court to withdraw his appearance." Id.
Rule 907 controls the disposition of a PCRA petition without a hearing and states in relevant part:
Pa.R.Crim.P. 907(1), (4). The purpose of a Rule 907 pre-dismissal notice is "to allow a petitioner an opportunity to seek leave to amend his petition and correct any material defects, the ultimate goal being to permit merits review by the PCRA court of potentially arguable claims." Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa.Super.2012), appeal denied, 619 Pa. 714, 64 A.3d 631 (2013). The response to the Rule 907 notice "is an opportunity for a petitioner and/or his counsel to object to the dismissal and alert the PCRA court of a perceived error, permitting the court to discern the potential for amendment." Id. The response is also the opportunity for the petitioner to object to counsel's effectiveness at the PCRA level. Id. When a PCRA court properly issues Rule 907 notice in compliance with the rules of criminal procedure, an appellant is deemed to have sufficient notice of dismissal. Commonwealth v. Ousley, 21 A.3d 1238, 1246 (Pa.Super.2011), appeal denied, 612 Pa. 698, 30 A.3d 487 (2011).
"[A]bsent recognition of a constitutional right to effective collateral review counsel, claims of PCRA counsel ineffectiveness cannot be raised for the first time after a notice of appeal has been taken from the underlying PCRA matter." Commonwealth v. Ford, 44 A.3d 1190, 1201 (Pa.Super.2012). A petitioner's failure to raise an ineffectiveness of counsel claim after receiving Rule 907 notice results in waiver of the claim. Commonwealth v. Pitts, 603 Pa. 1, 9 n. 4, 981 A.2d 875, 880 n. 4 (2009). See also Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.Super.2014) (waiving Appellant's claim of ineffectiveness of derivative PCRA counsel for failure to assert it in response to Rule 907 notice); Ousley, supra at 1245 (stating Pitts prohibits this Court's review of petitioner's ineffectiveness of PCRA counsel claim, where issue was raised for first time in PCRA appeal). With respect to the petitioner's duties, PCRA claims are more civil than criminal in nature, which places the burden of moving the case forward on the party in the plaintiff's position, who in this context is the PCRA petitioner. Commonwealth v. Renchenski, 616 Pa. 608, 620, 52 A.3d 251, 258 (2012). The petitioner bears the burden of pleading and proving claims on their merits, and demonstrating timeliness of a petition. See 42 Pa.C.S.A. §§ 9543(a), 9545(b).
In the instant case, Appellant filed a timely pro-se PCRA petition and hired a private attorney, who filed an amended PCRA petition on October 9, 2012. Subsequently, on January 16, 2014, the PCRA court issued Rule 907 notice to both Appellant and his privately-retained counsel. The Rule 907 notice indicated the court intended to dismiss the petition for lack of merit. The court also informed Appellant and his counsel that they had twenty days to respond to the notice. No response was filed.
Almost five months later, on June 12, 2014, the PCRA court formally dismissed
Initially, we conclude the PCRA court's Rule 907 notice was adequate where the court advised the parties of its reasons for dismissal and informing them of the twenty-day time limit to file a response to the notice. Here, the PCRA court's Rule 907 notice indicated the reason for dismissal was Appellant's issues lacked merit and alerted Appellant to the twenty-day response period. The court sent the Rule 907 notice to Appellant, Appellant's counsel, and the District Attorney's Office. The rule does not impose on the court any duty to explain to Appellant how to proceed or respond to the notice.
Appellant had an affirmative duty to preserve his claims. If Appellant wanted to assert claims of ineffective assistance of PCRA counsel, he should have consulted counsel and/or the court to learn the correct procedure. Instead, Appellant did nothing in the almost five months between the court's Rule 907 notice and dismissal of the petition. Thus, Appellant's substantive issues concerning PCRA counsel's assistance are waived, because Appellant failed to respond to the PCRA court's Rule 907 notice at any time before the court dismissed his petition. See Rykard, supra; Ousley, supra; Pa.R.Crim.P. 907. Once Appellant filed a notice of appeal, he waived his right to complain about PCRA counsel's stewardship, because Appellant was unable to raise those claims for the first time in his Rule 1925(b) statement.
Moreover, throughout the PCRA proceedings Appellant, as petitioner, bore the burden to plead and prove his claims. See 42 Pa.C.S.A. §§ 9543(a), 9545(b); Renchenski, supra (reiterating that petitioner has duty to meet provisions of PCRA). See, e.g., Commonwealth v. Bardo, ___ Pa. ___, 105 A.3d 678 (2014) (explaining counsel is presumed effective and petitioner bears burden to prove ineffective assistance of counsel); Commonwealth v. Pitts, 603 Pa. 1, 981 A.2d 875 (2009) (noting petitioner must satisfy rigorous burden to warrant evidentiary hearing for claims); Commonwealth v. Clark, 599 Pa. 204, 961 A.2d 80 (2008), cert. denied, 558 U.S. 1082, 130 S.Ct. 810, 175 L.Ed.2d 569 (2009) (stating petitioner bears burden to demonstrate his issues have not been previously litigated or waived). Compare Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125 (2009) (plurality) (stating where PCRA petitioner in capital case had evidentiary hearing on his PCRA claims, and Rule 907 notice was not implicated, petitioner could raise ineffective assistance of PCRA counsel claims for first time on appeal from denial of PCRA relief). Given Appellant's affirmative duties to preserve his claims of PCRA counsel's service, in the context of Rule 907 notice, Appellant cannot shift the burden to the court to instruct Appellant how to do so.
Notwithstanding Appellant's rule-based right to effective assistance of PCRA counsel,
Based upon the foregoing, we hold that in the context of Rule 907 notice, Appellant as PCRA petitioner had the duty to raise any claims of ineffective assistance of PCRA counsel in a response to the notice. Once the PCRA court finally adjudicated Appellant's petition, any claims not properly preserved in a response to the Rule 907 notice were waived and could not be raised for the first time in Appellant's Rule 1925(b) statement or in a second PCRA petition filed while the first PCRA petition was still pending on appeal. Accordingly, we affirm the order denying Appellant's PCRA petition.
Order affirmed.
Judge PANELLA joins this opinion.
Judge OLSON concurs in the result.