J-S37013-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EFRAIN MIRANDA III : : Appellant : No. 226 EDA 2022
Appeal from the PCRA Order Entered December 22, 2021 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0004828-2016
BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 18, 2022
Efrain Miranda III appeals from the order dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). We vacate the PCRA
court’s order and remand with instructions.
While serving a prison sentence on a prior conviction, Appellant
developed the plan of soliciting certain individuals to burglarize a judge’s
house, then afterwards providing information to the authorities about those
individuals in the hopes of having his own sentence reduced. After two
unsuccessful attempts, Appellant’s plot was uncovered. On June 6, 2017,
Appellant entered an open guilty plea to conspiracy to commit burglary and
received a sentence of eight and one-half to twenty years of imprisonment.
The sentence was imposed consecutively to the sentence Appellant was
already serving. J-S37013-22
Appellant filed an untimely direct appeal, which this Court quashed. On
July 5, 2018, Appellant filed a pro se PCRA petition seeking reinstatement of
his post-sentence motion and direct appellate rights, which the PCRA court
granted after appointed counsel filed an amended petition. Appellant filed a
timely post-sentence motion, which the trial court granted in part and denied
in part. Specifically, the trial court granted Appellant’s request to impose a
recidivism risk reduction incentive (“RRRI”) minimum sentence but denied his
request to otherwise modify the sentence. A timely direct appeal followed.
On February 26, 2020, this Court affirmed Appellant’s judgment of sentence.
See Commonwealth v. Miranda, 227 A.3d 441 (Pa.Super. 2020) (non-
precedential decision).
On March 5, 2021, Appellant filed the pro se PCRA petition that is the
subject of this appeal. Therein, Appellant claimed that he received a
statement from an individual who plotted the burglary which would prove his
innocence. On June 30, 2021, the PCRA court issued Pa.R.Crim.P. 907 notice
of its intent to dismiss Appellant’s “second” PCRA petition without a hearing
as untimely and insufficiently pled. Appellant filed a response, attaching the
statement he received and claiming that his petition should be considered a
timely first PCRA petition. Appellant also requested that the court appoint
counsel to assist him. The PCRA court dismissed the PCRA petition as
untimely, and this timely appeal followed.
On March 7, 2022, this Court directed the trial court to determine
Appellant’s eligibility for court-appointed counsel. See Pa.R.Crim.P. 904(C)
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(providing that when an unrepresented defendant demonstrates an inability
to afford counsel, the PCRA court must appoint counsel to represent the
defendant on his first PCRA petition.). On March 28, 2022, the PCRA court
entered an order finding Appellant ineligible for appointed counsel as this was
a second or subsequent petition. On April 14, 2022, Appellant informed this
Court that he would proceed pro se with this appeal due to the PCRA court’s
March 28, 2022 order. Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
Appellant raises the following issue for our review: “Whether the court
erred as a matter of law in dismissing Appellant’s first PCRA petition as
untimely and as his second subsequent PCRA petition without the assistance
of counsel.” See Appellant’s brief at 4.
We consider Appellant’s question mindful of the following. “This Court
is limited to determining whether the evidence of record supports the
conclusions of the PCRA court and whether the ruling is free of legal error.”
Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa.Super. 2018). It is well-
established that a PCRA petition, including a second or subsequent petition,
must be filed within one year of the date that the petitioner’s judgment
becomes final. See 42 Pa.C.S. § 9545(b)(1). A judgment becomes final “at
the conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). However,
“[t]his court has explained that when a PCRA petition’s direct appeal rights
-3- J-S37013-22
are reinstated nunc pro tunc in his first PCRA petition, a subsequent PCRA
petition will be considered a first PCRA petition for timeliness purposes.”
Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa.Super. 2013) (citation
omitted). In these circumstances, the one-year PCRA time clock does not
begin to run until the direct appeal nunc pro tunc renders the appellant’s
judgment of sentence final. See Commonwealth v. Fowler, 930 A.2d 586,
591 (Pa.Super. 2007).
In the case sub judice, the court granted Appellant’s request for an
appeal nunc pro tunc. The direct appeal concluded on February 26, 2020,
when this Court affirmed Appellant’s judgment of sentence. Accordingly,
Appellant’s judgment of sentence became final thirty days later, on March 27,
2020, when the time for filing a petition of allowance of appeal to our Supreme
Court expired. See Pa.R.A.P. 1113(a). Thereafter, Appellant had until March
27, 2021, to file a timely first PCRA petition. See 42 Pa.C.S. § 9545(b)(1).
Therefore, on March 5, 2021, when Appellant submitted his petition, the filing
should have been construed as a timely first PCRA petition and the PCRA court
erred by concluding otherwise.
The PCRA court further erred when it denied Appellant’s request for the
appointment of counsel to assist him with the litigation of his first PCRA
petition. It is well-settled that criminal defendants who demonstrate an
inability to afford counsel have a right to representation of counsel for the
litigation of their first PCRA petition. See Pa.R.Crim.P. 904(C). Herein,
Appellant proceeded with court-appointed counsel during his plea and direct
-4- J-S37013-22
appeal. Additionally, the PCRA court granted Appellant in forma pauperis
(“IFP”) status in its order denying this petition. See Order, 12/22/21.
Accordingly, Appellant has already made the necessary showing that he
cannot afford counsel and is entitled to court-appointed counsel for the
duration of his first PCRA petition.
Based on the foregoing, we vacate the order dismissing Appellant’s first
PCRA petition and remand for the appointment of counsel.1 Appointed counsel
shall either file an amended PCRA petition or submit a “no-merit” letter that
complies with the requirements set forth in Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213
(Pa.Super. 1988) (en banc). The PCRA court shall then review counsel’s
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J-S37013-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EFRAIN MIRANDA III : : Appellant : No. 226 EDA 2022
Appeal from the PCRA Order Entered December 22, 2021 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0004828-2016
BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 18, 2022
Efrain Miranda III appeals from the order dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). We vacate the PCRA
court’s order and remand with instructions.
While serving a prison sentence on a prior conviction, Appellant
developed the plan of soliciting certain individuals to burglarize a judge’s
house, then afterwards providing information to the authorities about those
individuals in the hopes of having his own sentence reduced. After two
unsuccessful attempts, Appellant’s plot was uncovered. On June 6, 2017,
Appellant entered an open guilty plea to conspiracy to commit burglary and
received a sentence of eight and one-half to twenty years of imprisonment.
The sentence was imposed consecutively to the sentence Appellant was
already serving. J-S37013-22
Appellant filed an untimely direct appeal, which this Court quashed. On
July 5, 2018, Appellant filed a pro se PCRA petition seeking reinstatement of
his post-sentence motion and direct appellate rights, which the PCRA court
granted after appointed counsel filed an amended petition. Appellant filed a
timely post-sentence motion, which the trial court granted in part and denied
in part. Specifically, the trial court granted Appellant’s request to impose a
recidivism risk reduction incentive (“RRRI”) minimum sentence but denied his
request to otherwise modify the sentence. A timely direct appeal followed.
On February 26, 2020, this Court affirmed Appellant’s judgment of sentence.
See Commonwealth v. Miranda, 227 A.3d 441 (Pa.Super. 2020) (non-
precedential decision).
On March 5, 2021, Appellant filed the pro se PCRA petition that is the
subject of this appeal. Therein, Appellant claimed that he received a
statement from an individual who plotted the burglary which would prove his
innocence. On June 30, 2021, the PCRA court issued Pa.R.Crim.P. 907 notice
of its intent to dismiss Appellant’s “second” PCRA petition without a hearing
as untimely and insufficiently pled. Appellant filed a response, attaching the
statement he received and claiming that his petition should be considered a
timely first PCRA petition. Appellant also requested that the court appoint
counsel to assist him. The PCRA court dismissed the PCRA petition as
untimely, and this timely appeal followed.
On March 7, 2022, this Court directed the trial court to determine
Appellant’s eligibility for court-appointed counsel. See Pa.R.Crim.P. 904(C)
-2- J-S37013-22
(providing that when an unrepresented defendant demonstrates an inability
to afford counsel, the PCRA court must appoint counsel to represent the
defendant on his first PCRA petition.). On March 28, 2022, the PCRA court
entered an order finding Appellant ineligible for appointed counsel as this was
a second or subsequent petition. On April 14, 2022, Appellant informed this
Court that he would proceed pro se with this appeal due to the PCRA court’s
March 28, 2022 order. Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
Appellant raises the following issue for our review: “Whether the court
erred as a matter of law in dismissing Appellant’s first PCRA petition as
untimely and as his second subsequent PCRA petition without the assistance
of counsel.” See Appellant’s brief at 4.
We consider Appellant’s question mindful of the following. “This Court
is limited to determining whether the evidence of record supports the
conclusions of the PCRA court and whether the ruling is free of legal error.”
Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa.Super. 2018). It is well-
established that a PCRA petition, including a second or subsequent petition,
must be filed within one year of the date that the petitioner’s judgment
becomes final. See 42 Pa.C.S. § 9545(b)(1). A judgment becomes final “at
the conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). However,
“[t]his court has explained that when a PCRA petition’s direct appeal rights
-3- J-S37013-22
are reinstated nunc pro tunc in his first PCRA petition, a subsequent PCRA
petition will be considered a first PCRA petition for timeliness purposes.”
Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa.Super. 2013) (citation
omitted). In these circumstances, the one-year PCRA time clock does not
begin to run until the direct appeal nunc pro tunc renders the appellant’s
judgment of sentence final. See Commonwealth v. Fowler, 930 A.2d 586,
591 (Pa.Super. 2007).
In the case sub judice, the court granted Appellant’s request for an
appeal nunc pro tunc. The direct appeal concluded on February 26, 2020,
when this Court affirmed Appellant’s judgment of sentence. Accordingly,
Appellant’s judgment of sentence became final thirty days later, on March 27,
2020, when the time for filing a petition of allowance of appeal to our Supreme
Court expired. See Pa.R.A.P. 1113(a). Thereafter, Appellant had until March
27, 2021, to file a timely first PCRA petition. See 42 Pa.C.S. § 9545(b)(1).
Therefore, on March 5, 2021, when Appellant submitted his petition, the filing
should have been construed as a timely first PCRA petition and the PCRA court
erred by concluding otherwise.
The PCRA court further erred when it denied Appellant’s request for the
appointment of counsel to assist him with the litigation of his first PCRA
petition. It is well-settled that criminal defendants who demonstrate an
inability to afford counsel have a right to representation of counsel for the
litigation of their first PCRA petition. See Pa.R.Crim.P. 904(C). Herein,
Appellant proceeded with court-appointed counsel during his plea and direct
-4- J-S37013-22
appeal. Additionally, the PCRA court granted Appellant in forma pauperis
(“IFP”) status in its order denying this petition. See Order, 12/22/21.
Accordingly, Appellant has already made the necessary showing that he
cannot afford counsel and is entitled to court-appointed counsel for the
duration of his first PCRA petition.
Based on the foregoing, we vacate the order dismissing Appellant’s first
PCRA petition and remand for the appointment of counsel.1 Appointed counsel
shall either file an amended PCRA petition or submit a “no-merit” letter that
complies with the requirements set forth in Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213
(Pa.Super. 1988) (en banc). The PCRA court shall then review counsel’s
submission, provide the Commonwealth with the opportunity to file an answer,
and decide whether an evidentiary hearing is warranted.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/18/2022 ____________________________________________
1 The Commonwealth concedes that the PCRA court erred and that remand for the appointment of counsel is required. See Commonwealth’s brief at 5.
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