Com. v. Carter, R.

• Court: Superior Court of Pennsylvania
• Decided: January 11, 2019
• Docket: 66 WDA 2018
• Status: Unpublished

Opinion

J-S50024-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RALPH JUSTIN CARTER : : Appellant : No. 66 WDA 2018

Appeal from the PCRA Order December 15, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0008812-2012

BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY OTT, J.: FILED JANUARY 11, 2019

Ralph Justin Carter appeals, pro se, from the order entered December

15, 2017, in the Allegheny County Court of Common Pleas dismissing his first

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

(“PCRA”).1, Carter seeks relief from the aggregate sentence of 86 to 172

months’ incarceration, imposed after a jury convicted him of person not to

possess firearm, possession of a controlled substance with intent to deliver

(“PWID”), possession of a controlled substance, and possession of drug

paraphernalia.2 On appeal, Carter raises claims that the PCRA court failed to

provide him with a copy of its Pa.R.Crim.P. 907 notice of intent to dismiss

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1 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. § 6105(a)(1), and 35 P.S. §§ (a)(30), (a)(16), and (a)(32), respectively. J-S50024-18

order, counsel provided ineffective assistance, and the court erred in

dismissing the petition because genuine issues of material fact existed. For

the reasons below, we vacate the order and remand with instructions.

The facts underlying Carter’s convictions are well-known to the parties

and we need not reiterate them in detail herein. Commonwealth v. Carter,

131 A.3d 93 (Pa. Super. 2015) (unpublished memorandum), appeal denied,

135 A.3d 582 (Pa. 2016). To summarize, on October 23, 2013, a jury

convicted Carter of the above-mentioned crimes. On January 30, 2014, the

trial court sentenced Carter to a term of five to 10 years’ incarceration for the

person not to possess a firearm conviction, a concurrent term of eight to 16

years’ imprisonment for the PWID count, and no further penalty on the

remaining crimes. Carter filed a post-sentence motion, which was denied on

February 25, 2014. On direct appeal, a panel of this Court upheld the

convictions, but remanded for resentencing due to the unconstitutionality of

Pennsylvania’s sentencing scheme. On March 17, 2017, the trial court

resentenced Carter to an aggregate term of 86 to 172 months’ imprisonment,

and denied his post-sentence motion on March 22, 2017.3

3 Subsequently, Carter filed a notice of appeal but discontinued his direct appeal on June 12, 2017.

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On June 8, 2017, Carter filed a pro se PCRA petition. Counsel was

appointed, but later filed a motion to withdraw as counsel and Turner/Finley4

“no merit” letter on November 17, 2017. On November 21, 2017, the PCRA

court issued a notice of intention to dismiss Carter’s petition without a hearing

pursuant to Rule 907. On December 15, 2017, the PCRA court dismissed the

petition and granted counsel’s request to withdraw. This appeal followed.5

In his first argument, Carter argues he was deprived of the right to a

period of 20 days between the PCRA court’s Rule 907 notice and its December

15, 2017, dismissal order so that he could respond to counsel’s motion to

withdraw and/or the court’s order. See Carter’s Brief at 11½ -16. Carter

alleges he did not receive the court’s Rule 907 notice at all, and he did not

obtain counsel’s no-merit letter until December 6, 2017, which was only nine

days before the court issued its dismissal order. Id.

Rule 907 provides, in relevant part:

(1) the judge shall promptly review the petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant’s claim(s). If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post- conviction collateral relief, and no purpose would be served by any ____________________________________________

4 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

5 On January 10, 2018, the PCRA court ordered Carter to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Carter filed a concise statement on January 26, 2018, and amended statement on March 12, 2018. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on April 3, 2018.

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further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice. The judge thereafter shall order the petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue.

Pa.R.Crim.P. 907(1) (emphasis added). “It is … clear that the notice

requirement of the intention to dismiss, is mandatory[.]” Commonwealth

v. Feighery, 661 A.2d 437, 439 (Pa. Super. 1995), appeal denied, 701 A.2d

575 (Pa. 1997).6

Here, the Commonwealth concedes7 the record supports Carter’s

contention that he did not receive the court’s Rule 907 notice. The court’s

November 21, 2017, order, contains no indication who was sent the

document, i.e., there is no carbon copy line indicating who was mailed the

order. Moreover, there is no certificate of service or return receipt in the

certified record demonstrating Carter received the Rule 907 notice, and there

is also nothing on the docket that would indicate the notice was mailed to

Carter or how it was sent.

Additionally, we note counsel’s no-merit letter and motion to withdraw

contain an incorrect Department of Corrections (“DOC”) inmate number for

6 See also Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000). “The failure to challenge the absence of a Rule 907 notice constitutes waiver.” Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013), citing Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa. Super. 2007).

7 See Commonwealth’s Brief at 10-18.

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Carter. Compare Carter’s Pro Se PCRA Petition, 5/23/2017, at Verification

Page (“MV-1754”) with Motion to Withdraw as Counsel and “No Merit” Letter

Pursuant to Turner/Finley, 11/17/2017, at 19 (“MG-8840”).

Consequently, based on the Commonwealth’s concession that Carter is

entitled to relief, and in the interests of justice, we conclude the PCRA court

erred in failing to provide Carter with proper Rule 907 notice, and permit him

the opportunity to file a response. Therefore, we vacate the court’s order

denying Carter’s petition, and remand for further proceedings. We direct the

court to serve a new Rule 907 notice on Carter, and permit him 20 days to file

a response, raising any challenges to PCRA counsel’s Turner/Finley letter,

claims of PCRA counsel’s ineffectiveness, and/or arguments concerning the

merits of his underlying issues.

Order vacated. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/11/2019

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