Com. v. Mumau, G.

• Court: Superior Court of Pennsylvania
• Decided: March 20, 2018
• Docket: 1485 WDA 2017
• Status: Unpublished

Opinion

J-S05042-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : GLENN MUMAU, : : Appellant : 1485 WDA 2017

Appeal from the Order September 21, 2017 in the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000014-2016

BEFORE: OLSON, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 20, 2018

Glenn Mumau (Appellant) pro se appeals from the order entered

September 21, 2017, denying his motion for reconsideration of sentence nunc

pro tunc. Upon review, we vacate the order and remand for proceedings

consistent with this memorandum.

On August 31, 2016, Appellant entered a guilty plea to one count of

corrupt organizations, one count of operation of a methamphetamine lab, and

four counts of delivery of methamphetamine. On September 7, 2016,

Appellant was sentenced to an aggregate term of 86 months to 30 years of

incarceration. Appellant timely filed a post-sentence motion, which was

denied on September 16, 2016. Appellant did not file a direct appeal.

On September 20, 2017, Appellant pro se filed a motion for

reconsideration nunc pro tunc. The trial court denied this motion on

*Retired Senior Judge assigned to the Superior Court. J-S05042-18

September 22, 2017. This timely-filed appeal followed. Both Appellant and

the court complied with Pa.R.A.P. 1925.

Before we address the issues raised by Appellant, we must first address

whether Appellant is properly proceeding pro se in this Court.1 In doing so,

we are mindful of the following.

“[A]ll motions filed after a judgment of sentence is final are to be

construed as PCRA[2] petitions.” Commonwealth v. Taylor, 65 A.3d 462,

466 (Pa. Super. 2013) (citing Commonwealth v. Fowler, 930 A.2d 586 (Pa.

Super. 2007) (collecting cases)). See also Commonwealth v. Jackson, 30

A.3d 516, 521 (Pa. Super. 2011) (quoting Commonwealth v. Johnson, 803

A.2d 1291, 1293 (Pa. Super. 2002) (“‘We have repeatedly held that ... any

petition filed after the judgment of sentence becomes final will be treated as

a PCRA petition.’”).

Here, Appellant was sentenced on September 7, 2016, and his timely-

filed post-sentence motion was denied on September 16, 2016. Pursuant to

the PCRA, his judgment of sentence became final on October 17, 2016, when

he failed to file a direct appeal. See 42 Pa.C.S. § 9545 (“[A] judgment

1 Although Appellant has not specifically raised an issue regarding his lack of PCRA counsel, we observe that we may do so sua sponte. See Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011) (discussing the right of Superior Court to address an appellant’s lack of counsel sua sponte in PCRA matter). 2 Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.

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becomes final at the conclusion of direct review… or at the expiration of time

for seeking the review.”). Accordingly, the trial court should have treated

Appellant’s September 20, 2017 motion as a first, timely-filed PCRA petition.

Rule 904 of the Rules of Criminal Procedure requires the appointment of

counsel for an indigent petitioner on his first PCRA petition.3 Pa.R.Crim.P.

904(C); Order, 10/6/2017 (granting Appellant’s motion to proceed in forma

pauperis). Because this was Appellant’s first filing, he was entitled to the

appointment of counsel. Therefore, we vacate the order denying the motion

and remand to the trial court for the appointment of counsel. If Appellant

wishes to proceed pro se, a Grazier4 hearing is required.

Order vacated. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

3 This requirement applies irrespective of whether Appellant requested counsel to be appointed. See Commonwealth v. Auchmuty, 799 A.2d 823, 826 (Pa. Super. 2002) (“[This Court] opined that clearly Rule [] 904 does not require petitioners to affirmatively request appointment of counsel and concluded it also was necessary to remand for appointment of counsel.”). 4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/20/2018

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