Com. v. Williams, L.

• Court: Superior Court of Pennsylvania
• Decided: June 22, 2018
• Docket: 1641 WDA 2017
• Status: Unpublished

Opinion

J-S30024-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

LAWRENCE WILLIAMS

Appellant No. 1641 WDA 2017

Appeal from the PCRA Order entered October 6, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No: CP-02-CR-0008470-2009

BEFORE: BENDER, P.J.E., STABILE, J. AND STRASSBURGER,* J.

JUDGMENT ORDER BY STABILE, J.: FILED JUNE 22, 2018

Appellant, Lawrence Williams, appeals from an order dismissing his

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

9546, without a hearing. We vacate the order of dismissal and remand for

further proceedings.

On October 26, 2010, Appellant pleaded guilty to one count each of

person not to possess a firearm, carrying a firearm without a license, receiving

stolen property, escape, possession of a controlled substance (heroin) and

possession of drug paraphernalia.1 The trial court sentenced Appellant to an

aggregate term of 3½-10 years’ imprisonment. Appellant did not file post-

sentence motions or a direct appeal. ____________________________________________

* Retired Senior Judge assigned to the Superior Court. 118 Pa. C.S. §§ 6105(a)(1), 6106(a)(1), 3925(a), 5121(a), and 35 P.S. § 780-113(a)(16) and (a)(32), respectively. J-S30024-18

On January 24, 2017, Williams filed a pro se PCRA petition alleging his

trial counsel’s ineffectiveness with regard to his guilty plea. The certified

record does not contain the PCRA court’s notice of intent to dismiss Williams’

petition without a hearing pursuant to Pa.R.Crim.P. 907. Nevertheless, it

appears that the PCRA court filed a Rule 907 notice, because Williams’ brief

includes a copy of a Rule 907 notice time-stamped March 2, 2017. On March

30, 2017, Williams filed a pro se document entitled “Supplement and Answer

to Notice of Intent to Dismiss” which appears to be a response to the Rule 907

notice. On May 8, 2017, one month after Appellant’s response, the PCRA court

appointed Suzanne M. Swan, Esquire, to represent Appellant in further

proceedings.

These facts demonstrate that the PCRA court erred by issung a Rule 907

notice without first appointing counsel for Williams. This was Williams’ first

PCRA petition, so he was entitled to counsel throughout these PCRA

proceedings. Commonwealth v. Cherry, 155 A.3d 1080, 1082-83 (Pa.

Super. 2017); Pa.R.Crim.P. 904(C). To its credit, the Commonwealth

recognizes this error by requesting that this Court remand this matter to

ensure that Williams receives the benefit of counsel. Commonwealth’s Brief

at 7-8.

Accordingly, we vacate the order of dismissal and remand the case to

the PCRA court with instructions to give attorney Swan the opportunity to

either “(1) amend the petitioner’s pro se [p]etition and present the petitioner’s

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claims in acceptable legal terms, or (2) certify that the claims lack merit by

complying with the mandates of Turner/Finley.”2 Cherry, 155 A.3d at 1083.

Order vacated. Case remanded for further proceedings in accordance

with this judgment order. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/22/2018

____________________________________________

2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

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