Com. v. Jones, S.

• Court: Superior Court of Pennsylvania
• Decided: January 11, 2018
• Docket: 1266 EDA 2017
• Status: Unpublished

Opinion

J-S71026-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

SHAMEL LEROY JONES

Appellant No. 1266 EDA 2017

Appeal from the PCRA Order Entered March 24, 2017 In the Court of Common Pleas of Northampton County Criminal Division at No: CP-48-CR-0001920-2000; CP-48-CR-0001057- 2003

BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.: FILED JANUARY 11, 2018

Appellant Shamel Leroy Jones, pro se, appeals from the March 24, 2017,

order entered in the Court of Common Pleas of Northampton County (“PCRA

court”), which dismissed as untimely his request for collateral relief under the

Post Conviction Relief Act (the “PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon

review, we vacate and remand.

Briefly, on September 8, 2003, Appellant pleaded guilty at dockets

1920-2000 and 1057-2003. Specifically, at docket 1920-2000, he entered

into a negotiated guilty plea to robbery carrying a sentence of 36 to 72

months’ imprisonment. At docket 1057-2003, Appellant entered into a

negotiated guilty plea to possession of contraband carrying a sentence of 18

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* Retired Senior Judge assigned to the Superior Court. J-S71026-17

to 36 months in prison. The trial court ordered the sentences to run

concurrently to each other and consecutively to any sentence that he was

serving. Appellant did not file a direct appeal.

On February 27, 2017, Appellant filed the instant, his first, PCRA

petition, challenging the voluntariness of his guilty plea and asserting

ineffectiveness assistance of counsel claims. In his petition, Appellant

asserted that he did “not have a lawyer” and was “without financial resources

or otherwise unable to obtain a lawyer.” Appellant thus requested that the

PCRA court “appoint a lawyer to represent” him. The PCRA court did not

appoint counsel. Following the PCRA court’s issuance of a Pa.R.Crim.P. 907

notice of its intent to dismiss the petition without a hearing, the PCRA court

denied Appellant PCRA relief on March 24, 2017. Appellant timely appealed

to this Court.

At the outset, we observe that Pennsylvania Rule of Criminal Procedure

904 requires the appointment of counsel for an indigent petitioner on his first

PCRA petition. See Pa.R.Crim.P. 904(c). An indigent defendant must be

represented “throughout the post-conviction proceedings, including any

appeal from disposition of the petition for post-conviction relief. Once counsel

has entered an appearance on a defendant’s behalf, counsel is obligated to

continue representation until the case is concluded or counsel is granted leave

by the court to withdraw his appearance.” Commonwealth v. Brown, 836

A.2d 997, 998-99 (Pa. Super. 2003) (citations and quotation marks omitted).

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Moreover, and most important, “[a]n indigent petitioner is entitled to

appointment of counsel on his first PCRA petition, even where the petition

appears untimely on its face.” Commonwealth v. Perez, 799 A.2d 848,

851 (Pa. Super. 2002) (emphasis added). “In such cases, counsel is appointed

principally to determine whether the petition is indeed untimely, and if so,

whether any exception to the timeliness requirements . . . applies.” Id. at

852.

Additionally, Rule 904 requires appointed counsel to provide meaningful

representation. As we explained in Perez “when appointed counsel fails to

amend an inarticulately drafted pro se [post-conviction] petition, or fails

otherwise to participate meaningfully, this [C]ourt will conclude that the

proceedings were, for all practical purposes, uncounseled and in violation of

the representation requirement. Id. at 852 (emphasis in original). “[T]o

provide meaningful representation, appointed counsel must at least address

the timeliness of a PCRA petition and determine whether the petition fits any

exception to the PCRA’s timeliness provision, where the subject petition is

untimely on its face.” Id. at 849. Counsel’s failure to discuss the timeliness

issue renders the “representation virtually meaningless” and effectively denies

an appellant the right to assistance of counsel. Id. at 853. Where the record

fails to demonstrate “meaningful participation by counsel appointed to

represent an indigent petitioner filing his first petition, [this Court] will remand

for appointment of new counsel.” Id. at 852, (citation omitted). Indeed,

“where an indigent, first-time PCRA petitioner was denied his right to counsel

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. . . this Court is required to raise this error sua sponte and remand for the

PCRA court to correct that mistake.” Commonwealth v. Stossel, 17 A.3d

1286, 1290 (Pa. Super. 2011).

Instantly, our review of the record reveals that the PCRA court failed to

appoint counsel to represent Appellant on the instant—his first—PCRA petition,

despite Appellant’s request for counsel. As stated, Appellant specifically

asserted that he was without resources to hire an attorney. In fact, Appellant

is proceeding in forma pauperis in this appeal. Accordingly, the PCRA court

erred in failing to appoint counsel to represent Appellant on his first PCRA

petition. We, therefore, remand this case to the PCRA court to appoint counsel

to represent Appellant and to hold further proceedings. See Pa.R.Crim.P.

904(c).

We recognize that Appellant pro se filed his PCRA petition over a decade

after his time for filing it had expired. As stated earlier, the record reflects

Appellant’s judgment of sentence became final on October 8, 2003. See 42

Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Because Appellant had one year

from October 8, 2003, to file his PCRA petition, the current filing is facially

untimely given it was filed on February 27, 2017. Yet, despite his PCRA

petition being facially untimely, Appellant still was entitled to counsel. See

Perez, supra.

Order vacated. Case remanded. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/11/18

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