J-S50019-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                        Appellee         :
                                         :
            v.                           :
                                         :
WILLIAM MOORE,                           :
                                         :
                        Appellant        :      No. 34 WDA 2014


         Appeal from the PCRA Order Entered December 17, 2013,
           In the Court of Common Pleas of Allegheny County,
            Criminal Division, at No. CP-02-CR-0006900-2008.


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and ALLEN, JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED OCTOBER 6, 2014

      Appellant, William Moore, appeals pro se from the order entered on

December 17, 2013, denying his petition for relief filed pursuant to the Post

                                                        -9546.   After careful

review, we vacate and remand with instructions.

      On September 21, 2010, Appellant entered a negotiated plea of nolo

contendere on charges of unlawful contact with a minor, statutory sexual

assault, and aggravated indecent assault. Pursuant to the plea agreement,

the trial court sentenced Appellant to an aggregate term of three and one-

half to seven years of incarceration, followed by five years of probation, with

506 days of credit for time served. Sentencing Order, 9/21/10.
J-S50019-14



         On September 20, 2013, Appellant filed a pro se PCRA petition. The

PCRA court appointed counsel, and counsel filed a petition to withdraw

pursuant to Turner/Finley.1          On December 9, 2013, the PCRA court

                                                                       December

17, 2013, it d

followed.

         On appeal, Appellant raises the following issues:

         A. Did the lower court err in determining that Appellant's PCRA
         petition was untimely?

         B. Did the lower [court] err in permitting PCRA attorney to
         withdraw?

         C. Did the Commonwealth breach their plea agreement?

         D. Did plea counsel offer erroneous advice?

Appella

         Our standard of review of an order denying PCRA relief is whether the

findings of the PCRA court are supported by the record and are free of legal

error.    Commonwealth        v.   Spotz,   18   A.3d   244,   259   (Pa.   2011);

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). The



findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).


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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J-S50019-14



        Additionally, a PCRA petition must be filed within one year of the date

that the judgment of sentence becomes final.         42 Pa.C.S. § 9545(b)(1).

This time requirement is mandatory and jurisdictional in nature, and the

court may not ignore it in order to reach the merits of the petition.

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). A judgment of



discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the



        However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.2 A petition invoking one of these exceptions must be filed




2
    The exceptions to the timeliness requirement are:

        (i)    the failure to raise the claim previously was the result of
        interference by government officials with the presentation of the
        claim in violation of the Constitution or laws of this
        Commonwealth or the Constitution or laws of the United States;

        (ii)  the facts upon which the claim is predicated were unknown
        to the petitioner and could not have been ascertained by the
        exercise of due diligence; or

        (iii) the right asserted is a constitutional right that was
        recognized by the Supreme Court of the United States or the
        Supreme Court of Pennsylvania after the time period provided in

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J-S50019-14



within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).      In order to be entitled to the exceptions to the

             -

specific facts that demonstrate his claim was raised within the sixty-day time

                                     Carr, 768 A.2d at 1167.

      As noted above, the PCRA c



in finding the instant PCRA petition untimely, the PCRA court erred in

permitting counsel to withdraw under Turner/Finley                    ition to

withdraw was based on the conclusion that, because the instant PCRA

petition was untimely, no relief was available.      Motion to Withdraw and

Letter to Appellant, 12/2/13. Counsel was incorrect.

      Appellant was sentenced on September 21, 2010. As no direct appeal



October 21, 2010. Therefore, Appellant had until October 21, 2011 to file a

timely PCRA petition. While not titled a PCRA petition, Appellant filed a pro

se motion to withdraw guilty plea on December 10, 2010, and the record

reflects that no ruling was entered on the motion.



      this section and has been held by that court to             apply
      retroactively.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).



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J-S50019-14




collateral review, and that any petition filed after the judgment of sentence

                                                        Commonwealth v.

Johnson

December 10, 2010 motion to withdraw guilty plea should have been

considered a timely first PCRA petition as it was filed within one year from

the date that his judgment of sentence became final. Additionally, because



petition, Appellant was entitled to the appointment of counsel.         See

Pa.R.Crim.P. 904(c) (providing that an indigent defendant shall be appointed

representation for a first PCRA petition).    The appointment of counsel

throughout the litigation of a first petition is mandatory even when it

appears that the petition is untimely or the petition does not present a

cognizable claim. Commonwealth v. Kutnyak, 781 A.2d 1259, 1262 (Pa.

Super. 2001).3

     For these reasons, we vacate the December 17, 2013 order and

remand this matter for the PCRA court to appoint counsel to assist Appellant

in filing an amended and timely first PCRA petition. See Commonwealth v.

Swartzfager, 59 A.3d 616 (Pa. Super. 2012) (vacating and remanding


3

                                                e been treated as a timely
PCRA petition and that this matter should be remanded for the appointment



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J-S50019-14



where the PCRA court erroneously permitted counsel to withdraw from

representing an appellant on an untimely PCRA petition where the record

reflected that an earlier timely petition had been filed but on which there

was no    ruling and the    appellant    had not been provided counsel).



also conduct a hearing at least to analyze whether the delay in filing the



                                                        Id. at 619. Finally,

depending on the issues raised, the PCRA court should also decide whether it

                                                                         Id.

at 619 n.4.

      Order vacated.      Case remanded with instructions.       Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/6/2014




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