J-S02007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

RODERICK LOPEZ,

                        Appellant                   No. 3260 EDA 2014


             Appeal from the PCRA Order September 25, 2014
              In the Court of Common Pleas of Lehigh County
            Criminal Division at No(s): CP-39-CR-0001802-2012


BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED MARCH 07, 2016

      Appellant, Roderick Lopez, appeals from the order denying his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541-9546. We vacate and remand for further proceedings.

      We summarize the procedural history of this case as follows.      In an

information filed on June 6, 2012, Appellant was charged with one count of

persons not to possess a firearm, and three counts each of possession of a

controlled substance with intent to deliver, simple possession of a controlled

substance, and criminal conspiracy. On November 13, 2012, Appellant pled

guilty to one count of persons not to possess a firearm and two counts each

of possession of a controlled substance with intent to deliver and criminal

conspiracy. On January 3, 2013, Appellant was sentenced to an aggregate

term of incarceration of six to twenty years. Appellant filed a timely post-
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sentence motion, which the trial court denied in an order entered on January

14, 2013. Appellant did not file a direct appeal.

       Appellant filed a pro se PCRA petition, which the court of common

pleas docketed on April 29, 2014.              In an order filed on May 1, 2014, the

PCRA court appointed counsel to represent Appellant and simultaneously

issued notice of the court’s intent to dismiss the PCRA petition without a

hearing pursuant to Pa.R.Crim.P. 907. On June 2, 2014, prior to appointed

counsel taking any action on Appellant’s behalf, the PCRA court issued an

order dismissing Appellant’s PCRA petition as untimely filed.

       Appellant then filed another pro se document raising claims of

ineffective assistance of prior counsel, which the court of common pleas

docketed on July 25, 2014, and treated as a second PCRA petition.                On

August 19, 2014, the PCRA court issued notice of its intent to dismiss the

PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907.              Appellant

then filed a pro se response with the PCRA court. On September 26, 2014,

the PCRA court entered an order dismissing Appellant’s PCRA petition and

mailed the order to Appellant. This timely appeal followed. 1 Appellant filed

____________________________________________


1
  We note that Appellant needed to file his appeal by Monday, October 27,
2014, because October 26, 2014, was a Sunday. See 1 Pa.C.S. § 1908
(explaining that, for computations of time, whenever the last day of any
such period shall fall on Saturday or Sunday, or a legal holiday, such day
shall be omitted from the computation). See also Pa.R.A.P. 107; Pa.R.A.P.
108(a); Pa.R.A.P. 903, note. In addition, our review of the certified record
reflects that Appellant dated his notice of appeal October 26, 2014, and the
(Footnote Continued Next Page)


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an untimely pro se concise statement pursuant to Pa.R.A.P. 1925(b). The

PCRA court filed a Pa.R.A.P. 1925(a) opinion prior to Appellant filing his

Pa.R.A.P. 1925(b) concise statement.

      Appellant presents the following issues for our review:

      A. Did the [the PCRA court], abuse its discretion by dismissed
      the First and Second PCRA Petitions for untimely filed and
      became out of Jurisdiction of the Common Pleas Court of Lehigh
      County?

      B. Ineffective assistance of counsel which, in the circumstances
      of the particular case, so undermined the truth determining
      process that no reliable adjudication of guilty or innocence could
      have taken place?

      C. A plea of guilty unlawfully induced where the circumstances
      make     it   likely   that   the     inducement      caused    the
      petitioner/Appellant to plea guilty, and the petitioner/appellant is
      innocence?

Appellant’s Brief at 4 (verbatim).

      Prior   to   addressing       Appellant’s   issues,   we   must   first    address

Appellant’s appearance before this Court without counsel.                       Although

Appellant has not specifically raised an issue regarding his lack of PCRA

counsel, we observe that we may do so sua sponte. See Commonwealth

v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011) (discussing the right of

                       _______________________
(Footnote Continued)

court of common pleas docketed Appellant’s notice of appeal on October 29,
2014. Accordingly, we conclude that, pursuant to the prisoner mailbox rule,
Appellant timely filed his notice of appeal on October 26, 2014. See
Commonwealth v. Wilson, 911 A.2d 942, 944 (Pa. Super. 2006)
(recognizing that under the “prisoner mailbox rule,” a document is deemed
filed when placed in the hands of prison authorities for mailing).



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Superior Court to address the appellant’s lack of counsel sua sponte in PCRA

matter). Moreover, the Commonwealth has raised a valid concern regarding

prior     appointed     PCRA     counsel’s     representation    of    Appellant.

Commonwealth’s Brief at 6-8.

        Under our Commonwealth’s rules of criminal procedure promulgated

by the Pennsylvania Supreme Court, it is mandated that an indigent

petitioner be appointed counsel to represent him on his first PCRA petition.

Pa.R.Crim.P. 904. The comment to Rule 904 states the following:

        Consistent with Pennsylvania post-conviction practice, it is
        intended that counsel be appointed in every case in which a
        defendant has filed a petition for post-conviction collateral relief
        for the first time and is unable to afford counsel or otherwise
        procure counsel.

Pa.R.Crim.P. 904 cmt. The purpose of Rule 904 is to ensure that an indigent

litigant is provided counsel for at least one PCRA petition, which under

ordinary circumstances would be the first such petition.

        This Court has long mandated that “counsel be appointed in every

case in which a defendant has filed a motion for post-conviction collateral

review for the first time and is unable to afford counsel. . . .”

Commonwealth v. Kaufmann, 592 A.2d 691, 695 (Pa. Super. 1991)

(emphasis in original). See Commonwealth v. Lindsey, 687 A.2d 1144,

1144-1145 (Pa. Super. 1996) (reasoning that Pa.R.Crim.P. 904(a) provides

that a PCRA petitioner is entitled to counsel for his first PCRA petition,

regardless of the merits of his claim).       The failure to appoint counsel to


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assist     an   indigent,   first-time   PCRA   petitioner   is   manifest   error.

Commonwealth v. Kutnyak, 781 A.2d 1259, 1262 (Pa. Super. 2001).

This principle has been reinforced in case law on numerous occasions, and

the cases have required appointment of counsel even where the initial pro se

petition is seemingly wholly without merit, Kaufmann, 592 A.2d at 695,

where the issue has been previously litigated or is not cognizable under the

PCRA, Commonwealth v. Luckett, 700 A.2d 1014, 1016 (Pa. Super.

1997), where the petition is untimely, Commonwealth v. Ferguson, 722

A.2d 177, 179-180 (Pa. Super. 1998), and where the petitioner has not

requested appointment of counsel, Commonwealth v. Guthrie, 749 A.2d

502, 504 (Pa. Super. 2000).

         Further, our Supreme Court has explained that this rule-based right is

not simply a right to counsel, but a right to effective assistance of counsel.

Commonwealth v. Haag, 809 A.2d 271, 282-283 (Pa. 2002).                       “The

guidance and representation of an attorney during collateral review ‘should

assure that meritorious legal issues are recognized and addressed, and that

meritless claims are foregone.’”         Id. at 283 (quoting Commonwealth v.

Albert, 561 A.2d 736 (Pa. 1989)).          See also Commonwealth v. Smith,

818 A.2d 494, 500-501 (Pa. 2003) (stating that “Rule 904 mandates that an

indigent petitioner, whose first PCRA petition appears untimely, is entitled to

the assistance of counsel in order to determine whether any of the

exceptions to the one-year time limitation apply”). Thus, the right to post-


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conviction counsel “has not been limited to the mere naming of an attorney

to represent an accused, but also envisions that counsel so appointed shall

have the opportunity and in fact discharge the responsibilities required by

his representation.”      Commonwealth v. Hampton, 718 A.2d 1250, 1253

(Pa. Super. 1998) (quoting Commonwealth v. Fiero, 341 A.2d 448 (Pa.

1975)).

       We have explained that

       when appointed, [PCRA] counsel’s duty is to either (1) amend
       the petitioner’s pro se petition and present the petitioner’s
       claims in acceptable legal terms, or (2) certify that the claims
       lack merit by complying with the mandates of Finley.[2] If
       appointed counsel fails to take either of these steps, our courts
       have not hesitated to find that the petition was effectively
       uncounseled. Under such circumstances, we generally remand
       for appointment of counsel to file either a proper amended PCRA
       petition or a proper Finley letter.

Commonwealth v. Priovolos, 746 A.2d 621, 623-624 (Pa. Super. 2000)

(citing Hampton, 718 A.2d at 1253) (internal citations and quotation marks

omitted).

       In summary, it bears repeating that our courts will not hold an

indigent pro se petitioner responsible for presenting a cognizable claim for

PCRA relief until that petitioner has been given the opportunity to be

represented by appointed counsel.              Commonwealth v. Evans, 866 A.2d

442, 445 (Pa. Super. 2005). Therefore, “before the trial court disposes of a

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2
    Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).



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first post conviction petition, it must first make a determination as to the

petitioner’s indigence and if the petitioner is indigent, the court must appoint

counsel to assist in the preparation of said petition.” Hampton, 718 A.2d at

1253 (quoting Commonwealth v. Van Allen, 597 A.2d 1237 (Pa. Super.

1991)) (emphasis omitted).           Hence, it is axiomatic that appointed PCRA

counsel be given the time and opportunity to comply with these mandates.

       Our review of the record reflects that slightly more than one year after

Appellant’s judgment of sentence became final,3 on April 29, 2014, Appellant

filed a pro se PCRA petition, and the PCRA court appointed PCRA counsel on

May 1, 2014. However, prior to appointed counsel filing an amended PCRA

petition or a Finley letter with a petition to withdraw, the PCRA court

dismissed the PCRA petition on June 2, 2014. Thus, PCRA counsel failed to

act on Appellant’s behalf, and the PCRA court dismissed Appellant’s PCRA

petition a mere thirty-two days after counsel was appointed. Subsequently,

on July 25, 2014, Appellant filed another pro se PCRA petition. The PCRA

court dismissed this PCRA petition on September 26, 2014, without

appointing counsel, and this appeal followed.        This was clearly error and

requires remand for the appointment of counsel to comply with the dictates


____________________________________________


3
  A judgment of sentence “becomes final at the conclusion of direct review,
including 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 review.” 42 Pa.C.S. § 9545(b)(3).



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of Rule 904. Appellant must be given that right currently so that he may file

a counseled PCRA petition.4

       In conclusion, because Appellant was improperly denied the assistance

of counsel for a PCRA petition, we vacate the order below and remand for

appointment of counsel.         Counsel is to be given an opportunity to file an

amended petition raising any possible exceptions to the time requirements

of the PCRA, and any further proceedings that are necessary. Moreover, we

commend the Commonwealth for its candor in conceding that remand for

the appointment of PCRA counsel is an appropriate remedy in this instance.

Commonwealth’s Brief at 9.

       Order vacated. Case remanded for appointment of counsel and further

proceedings consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/2016



____________________________________________


4
  Because Appellant is indigent as evidenced by his current in forma pauperis
status, the PCRA court must appoint counsel to assist him in the preparation
of a PCRA petition. Thus, we are obligated to remand this case to the PCRA
court for the appointment of counsel.



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