Com. v. Morris, V.

• Court: Superior Court of Pennsylvania
• Decided: February 1, 2018
• Docket: 3731 EDA 2016
• Status: Unpublished

Opinion

J-S79022-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : VERNELL MORRIS : : Appellant : No. 3731 EDA 2016

Appeal from the PCRA Order November 3, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1113151-1992

BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

JUDGMENT ORDER BY LAZARUS, J.: FILED FEBRUARY 01, 2018

Vernell Morris appeals from the order, entered in the Court of Common

Pleas of Philadelphia County, dismissing his petition for collateral relief filed

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

vacate and remand.

Following a waiver trial before the Honorable Paul Ribner, Morris was

convicted of first-degree murder, five counts each of aggravated assault and

recklessly endangering another person, and possession of an instrument of

crime. On September 8, 1994, Judge Ribner sentenced Morris to life

imprisonment. This Court affirmed his judgment of sentence.

Commonwealth v Morris, 678 A.2d 831 (Pa. Super. 1996) (Table), and on

January 7, 1997, the Pennsylvania Supreme Court denied his petition for

allowance of appeal. Commonwealth v. Morris, 689 A.2d 232 (Pa. 1997)

(Table). Morris did not seek certiorari in the United States Supreme Court J-S79022-17

and, therefore, his judgment of sentence became final on April 7, 1997, when

the time to file a petition for writ of certiorari with the United States Supreme

Court expired. See 42 Pa.C.S. § 9545(b)(3) (“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.”). See also U.S.Sup.Ct.R. 13, 28

U.S.C.A.

On September 22, 2008, Morris filed a pro se writ of habeas corpus,

which the Honorable Sheila Woods-Skipper dismissed without prejudice to

allow him to file a PCRA petition. On July 20, 2012, Morris filed his first pro

se PCRA petition and the court served him with notice of its intention to

dismiss pursuant to Pa.R.Crim.P. 907(1). Morris did not respond to the Rule

907 notice and the PCRA court dismissed Morris’ petition as untimely on

November 3, 2016. This appeal followed. Thereafter, the PCRA court filed its

opinion, requesting this Court remand for appointment of counsel pursuant to

Pa.R.Crim.P. 904(C) (“[W]hen an unrepresented defendant satisfies the judge

that the defendant is unable to afford or otherwise procure counsel, the judge

shall appoint counsel to represent the defendant on the defendant’s first

petition for post-conviction collateral relief.”).

Here, neither the 2008 petition nor the 2012 petition were counseled.

Morris has not been afforded the assistance of counsel in a prior post-

conviction proceeding. We agree with the PCRA court that remand for

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appointment of counsel is necessary here. See Pa.R.Crim.P. 904(C); see also

Commonwealth v. Guthrie, 749 A.2d 502 (Pa. Super. 2000).

This necessary conclusion . . . implicates a long line of Pennsylvania precedent requiring unequivocally that prisoners seeking post-conviction relief by whatever name be afforded the assistance of counsel. See Commonwealth v. Smith, 572 Pa. 572, 818 A.2d 494, 498 (2003) (“[T]he rules of criminal procedure require the appointment of counsel in PCRA proceedings.”); Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 699 (1999) (“The denial of PCRA relief cannot stand unless the petitioner was afforded the assistance of counsel.”); [Commonwealth v.] Kutnyak, 781 A.2d [1259,] 1262 [(Pa. Super. 2001)] (holding that appellant is entitled to representation of counsel on first PCRA petition “despite any apparent untimeliness of the petition or the apparent non-cognizability of the claims presented”); Guthrie, 749 A.2d at 504 (remanding for appointment of counsel); Commonwealth v. Quail, 729 A.2d 571, 573 (Pa. Super. 1999) (same); Commonwealth v. Ferguson, 722 A.2d 177, 180 (Pa. Super. 1998) (same). These holdings follow from the mandatory language contained in Pa.R.Crim.P. 904, formerly Pa.R.Crim.P. 1504.

Commonwealth v. Evans, 866 A.2d 442, 444 (Pa. Super. 2005).

We remand for the appointment of counsel and the preparation of an

amended petition as well as further proceedings as directed by the PCRA court.

Order vacated. Case remanded for proceedings consistent with this

decision. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/1/18

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