Com. v. Scott, C.

• Court: Superior Court of Pennsylvania
• Decided: August 21, 2019
• Docket: 1363 EDA 2018
• Status: Unpublished

Opinion

J-S39044-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CARNELL SCOTT : : Appellant : No. 1363 EDA 2018

Appeal from the PCRA Order April 4, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0013278-2012

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

MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 21, 2019

Appellant, Carnell Scott, appeals pro se from the order entered in the

Court of Common Pleas of Philadelphia County dismissing his second petition

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

patently untimely. Specifically, Appellant’s second PCRA petition seeks nunc

pro tunc relief in the form of reinstatement of his right to file an appeal to this

Court from the denial of his first, timely, PCRA petition. We vacate the PCRA

court’s order and remand to permit a nunc pro tunc appeal from the order

denying Appellant’s first PCRA petition.

The parties are familiar with the facts and procedural history pertaining

to Appellant’s 2014 judgment of sentence for third-degree murder and related

offenses, such that we need not discuss them for our present purposes. On

December 28, 2016, Appellant timely filed his first PCRA petition and received

____________________________________ * Former Justice specially assigned to the Superior Court. J-S39044-19

court-appointed counsel. On June 6, 2017, counsel filed a Turner/Finley1

no-merit letter and motion to withdraw. On June 7, 2017, the PCRA court

issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s PCRA

petition without a hearing.

Appellant filed a pro se response to the court’s notice on June 26, 2017,

but the court entered an order of July 11, 2017, dismissing Appellant’s petition

and granting counsel’s motion to withdraw. The order indicates the court

served it upon the stenographer, the Clerk of Courts, the Commonwealth, and

PCRA counsel. There is no demonstration either in the order or on the docket

that the PCRA court served the order on Appellant.

The record shows Appellant filed a pro se communication with the PCRA

court on December 4, 2017, asking for an update on the status of his first

PCRA petition in light of his response to the court’s 907 notice. Upon learning

the court had dismissed his petition, he filed the present, second, PCRA

petition seeking reinstatement of his appeal rights nunc pro tunc from the

order denying him relief on his first petition because the court had failed to

serve him with that order.

On February 6, 2018, the PCRA court issued a Rule 907 notice of its

intent to dismiss Appellant’s second petition as patently untimely. Appellant

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1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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did not file a response, and the PCRA court entered its Order of April 3, 2018,

denying relief on Appellant’s second petition. This timely appeal followed.

Herein, the PCRA court indicates it denied Appellant’s requested relief

because it lacked jurisdiction over the untimely petition and no exception to

the PCRA’s timeliness provisions applied. See 42 Pa.C.S. § 9545(b)(1)

(providing PCRA petition, including a second or subsequent one, shall be filed

within one year of the date the underlying judgment becomes final), and §

9545(b)(1) (i-iii) (providing exceptions in event of: government interference

with filing; newly-discovered facts previously unascertainable by exercise of

due diligence; newly-recognized constitutional right).

Contrary to the learned court’s opinion, however, we discern in

Appellant’s petition the assertion of a newly-discovered fact that the PCRA

court entered an order dismissing his first petition on July 11, 2017 without

ever notifying Appellant of the order. See Commonwealth v. Maddrey, 205

A.3d 323, 326 n. 5 (Pa.Super. 2019) (recognizing newly-discovered fact

exception implicated where petitioner never received notice of Rule 907 order

dismissing previous petition); Commonwealth v. Smith, 181 A.3d 1168,

1173 n.2 (Pa.Super. 2018) (finding no error in lower court’s restoration of

PCRA appellate rights nunc pro tunc, based on breakdown in court, where

appellant never received notice of Rule 907 order). As discussed above, the

record supports Appellant’s assertion that the order was never served upon

him personally, despite the fact that the court had concomitantly granted

appointed counsel’s petition to withdraw.

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Therefore, because Appellant’s second PCRA petition qualifies for an

exception to the PCRA’s timeliness requirements, the PCRA court had

jurisdiction over it. Additionally, we discern no reason under the

circumstances to deny Appellant’s request for reinstatement of his appellate

rights nunc pro tunc. Accordingly, we grant Appellant’s request for nunc pro

tunc relief to file an appeal from the order denying him relief under his first

PCRA petition.

Order vacated. Case remanded for further proceedings consistent with

this decision. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/21/2019

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