Com. v. Oliver, B.

• Court: Superior Court of Pennsylvania
• Decided: December 15, 2016
• Docket: 846 MDA 2016
• Status: Unpublished

Opinion

J-S82042-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

BRADLEY OLIVER,

Appellant No. 846 MDA 2016

Appeal from the PCRA Order April 27, 2016 in the Court of Common Pleas of Dauphin County Criminal Division at No.: CP-22-CR-0000253-1996

BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

JUDGMENT ORDER BY PLATT, J.: FILED DECEMBER 15, 2016

Appellant, Bradley Oliver, appeals pro se from the order dismissing his

first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546, as untimely. We vacate the order of the PCRA

court, and remand for the appointment of counsel and further proceedings.

The relevant facts and procedural history of this case are as follows.

On August 13, 1996, a jury convicted Appellant of four counts each of

involuntary deviate sexual intercourse, indecent assault, and corruption of

minors, and one count of aggravated indecent assault.1 On September 18,

1996, the trial court sentenced Appellant to an aggregate term of not less

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* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 3123, 3126, 6301, and 3125, respectively. J-S82042-16

than thirty-two nor more than 130 years’ incarceration. Appellant filed a

direct appeal, and this Court affirmed the judgment of sentence on May 5,

1998. (See Commonwealth v. Oliver, 718 A.2d 860 (Pa. Super. 1998)

(unpublished memorandum)). Our Supreme Court denied Appellant’s

petition for allowance of appeal on September 30, 1998. (See

Commonwealth v. Oliver, 727 A.2d 1119 (Pa. 1998)).

On December 2, 2015, Appellant filed the instant first PCRA petition

pro se. The PCRA court did not appoint counsel, but instead entered a

memorandum opinion and order notifying Appellant of its intention to

dismiss the petition without a hearing pursuant to Pennsylvania Rule of

Criminal Procedure 907. See Pa.R.Crim.P. 907. Appellant did not respond.

The PCRA court entered its order dismissing Appellant’s PCRA petition as

untimely on April 27, 2016. This timely appeal followed.2

“On review of orders denying PCRA relief, our standard is to determine

whether the PCRA court’s ruling is free of legal error and supported by the

record.” Commonwealth v. Boyer, 962 A.2d 1213, 1215 (Pa. Super.

2008) (citation omitted). It is well-settled that a PCRA petitioner is entitled

to the appointment of counsel for his or her first petition, even if it appears ____________________________________________

2 The PCRA court did not order Appellant to file a concise statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). It filed a statement in lieu of a Rule 1925(a) opinion on July 7, 2016, indicating that Appellant’s PCRA petition is untimely, and he failed to establish the applicability of any of the three exceptions to the PCRA’s time-bar. See Pa.R.A.P. 1925(a); (PCRA Court Opinion, 7/07/16, at unnumbered pages 1-2).

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untimely on its face. See Pa.R.Crim.P. 904(C); Commonwealth v. Stout,

978 A.2d 984, 988 (Pa. Super. 2009). Additionally, this Court has held

“where [a] . . . first-time PCRA petitioner was denied his right to counsel . . .

this Court is required to . . . remand for the PCRA court to correct that

mistake.” Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super.

2011).

Here, the record reflects that this was Appellant’s first PCRA petition

and the PCRA court failed to appoint counsel as required by Rule 904(C) and

the case law of this Commonwealth. Accordingly, we vacate the PCRA

court’s order dismissing the petition, and remand the case with instructions,

consistent with this judgment order.

Order vacated; case remanded for further proceedings consistent with

this Judgment Order. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/15/2016

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