Com. v. Rosa, E.

• Court: Superior Court of Pennsylvania
• Decided: August 28, 2019
• Docket: 2095 EDA 2018
• Status: Unpublished

Opinion

J-S39015-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ERIKA ROSA : : Appellant : No. 2095 EDA 2018

Appeal from the PCRA Order Entered December 22, 2016 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0006544-2011

BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.

JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED AUGUST 28, 2019

Appellant, Erika Rosa, appeals pro se from the order entered in the

Bucks County Court of Common Pleas, which denied her first petition filed

under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546.

On February 13, 2012, Appellant entered an open guilty plea to corrupt

organizations, conspiracy, and criminal use of a communication facility. The

court sentenced her on June 18, 2012, to an aggregate 13 to 26 years’

imprisonment, and this Court affirmed the judgment of sentence on August

20, 2013. See Commonwealth v. Rosa, 83 A.3d 1068 (Pa.Super. 2013).

Appellant filed a timely, counseled PCRA petition on April 24, 2014. The

court subsequently let original PCRA counsel withdraw, appointed new PCRA

counsel, and granted Appellant in forma pauperis status. On December 30,

2014, counsel filed an amended petition. The court held a hearing on June 3,

____________________________________ * Former Justice specially assigned to the Superior Court. J-S39015-19

2016 and denied relief on December 22, 2016. The court sent its order to

counsel for the Commonwealth and to PCRA counsel, who was still counsel of

record. On July 31, 2017, Appellant filed a pro se application for speedy

disposition of her PCRA petition, which suggested she did not know the

outcome of her petition. The court responded on August 15, 2017, informing

Appellant that it had denied her petition on December 22, 2016, and sent a

copy of that letter to PCRA counsel. Nothing in the record shows PCRA counsel

contacted Appellant. Appellant then filed pro se correspondence asserting

PCRA counsel had abandoned her, seeking appointment of new counsel, and

requesting a copy of the order denying her petition. The court did not respond.

On March 1, 2018, Appellant filed a notice of appeal.1 This Court issued

a rule to show cause why the appeal should not be dismissed as untimely.

Appellant responded that she did not know the court had denied her petition

until she received the court’s letter. On November 9, 2018, this Court

discharged the rule and referred the issue to the merits panel.2

Preliminarily, a notice of appeal must be filed within 30 days of entry of

the order from which the appeal is taken. Pa.R.A.P. 903(a). The timeliness

of a notice of appeal also implicates this Court’s jurisdiction. Commonwealth

v. Wooden, ___ A.3d ___, 2019 PA Super 220 (filed July 19, 2019).

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1 No Pa.R.A.P. 1925(b) concise statement was ordered or filed.

2 Notwithstanding Appellant’s failure to mention it, the record makes clear she is challenging the December 22, 2016 order denying her PCRA petition.

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Additionally, “a criminal defendant has a right to representation of counsel for

purposes of litigating a first PCRA petition through the entire appellate

process.” Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa.Super.

2009) (en banc). See also Pa.R.Crim.P. 904(C), (F)(2) (stating indigent

defendant is entitled to counsel to litigate first PCRA petition, including on

appeal). “The performance of counsel must comply with some minimum

norms, which would include not abandoning a client for purposes of appeal.”

Commonwealth v. Bennett, 593 Pa. 382, 399, 930 A.2d 1264, 1274 (2007).

Instantly, Appellant is indigent, pursuing her first PCRA petition, and

entitled to counsel on appeal. See Pa.R.Crim.P. 904(C), (F)(2); Bennett,

supra; Robinson, supra. The record supports Appellant’s claim of

abandonment, where PCRA counsel failed to inform Appellant of the denial of

her petition or discuss whether Appellant wanted to appeal. See Bennett,

supra (explaining orders denying relief are not sent directly to prisoner;

rather, counsel is sent notice on presumption counsel will inform petitioner of

court’s action). Under these circumstances, the best resolution of this case is

to vacate and remand for a full hearing per Commonwealth v. Grazier, 552

Pa. 9, 713 A.2d 81 (1998). See Wooden, supra (excusing untimeliness of

appellant’s pro se appeal from denial of first PCRA petition, where record

demonstrated counsel had abandoned appellant; vacating and remanding for

Grazier hearing and further proceedings). If Appellant chooses to proceed

pro se, then the court can reinstate its PCRA order; and Appellant can file a

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notice of appeal. If Appellant wants counsel, then the court shall appoint

counsel and reinstate its PCRA order, with service on counsel and Appellant;

and Appellant can proceed with a counseled appeal. See Robinson, supra

(vacating order denying PCRA relief, remanding for Grazier hearing, and

relinquishing jurisdiction; stating once appropriate proceedings are

conducted, order denying PCRA relief can be reinstated, and appellant or

counsel can appeal).3

Order vacated; case remanded with instructions. Jurisdiction is

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/28/19

3Due to our disposition, we deny the Commonwealth’s motion to quash the appeal as untimely.

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