J-S36034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 HAROLD LEE FISHER, JR.                    :
                                           :
                    Appellant              :   No. 1289 MDA 2018

                Appeal from the Order Entered July 23, 2018
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0006728-2015


BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                           FILED JULY 19, 2019

      Harold Lee Fisher, Jr. (Fisher) appeals an order entered in the Dauphin

County Court of Common Pleas (trial court) denying his pro se Motion for

Release Due to Illegal Sentence (Motion). We vacate the subject order and

remand so that Fisher may, with the benefit of counsel, reassert the grounds

in his Motion as a request for relief pursuant to the Post Conviction Relief Act,

42 Pa.C.S. §§ 9541-9546 (PCRA). Fisher’s right to appointment of counsel on

remand renders moot his appellate counsel’s Petition for Leave to Withdraw.

      The following factual and procedural background is gleaned from our

independent review of the certified record and the trial court’s opinion. On

October 28, 2008, Fisher pleaded guilty to Involuntary Deviate Sexual

Intercourse and Corruption of Minors and was sentenced in 2009. See 18




____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S36034-19


Pa.C.S. § 4915.1(a)(1). Fisher was required to register as a sexual offender

for the rest of his life. He did not appeal.

       On November 3, 2015, Fisher was charged with failing to comply with

those registration requirements and, on February 4, 2016, pursuant to a

negotiated plea agreement, he pled guilty to one count of that offense. Again,

Fisher did not appeal.

       On March 23, 2018, Fisher filed the subject Motion pro se.1 He argued

that he was entitled to immediate release based on our Supreme Court’s

decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), where it

held that SORNA may not be applied retroactively so as to increase the

penalties for sexual offenders, including the length of the registration period.

Fisher contended that under Muniz, new registration requirements were

retroactively applied to him and that as a result, his judgment of sentence

cannot stand.

       On July 23, 2018, treating the filing as an untimely post-sentence

motion under Pa.R.Crim.P. 720(B)(3)(b), the Clerk of Courts entered an order

denying Fisher’s Motion as a matter of law. Fisher filed a notice of appeal and

then a Rule 1925(b) Statement. On October 3, 2018, the trial court issued a

Rule 1925(a) Opinion noting that the sentencing claim in Fisher’s pro se



____________________________________________


1Fisher filed a pro se Motion for Immediate Release on May 25, 2018, raising
essentially the same grounds for relief.


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motion was exclusive to the PCRA, but had been denied without regard for

PCRA legal standards. See 1925(a) Opinion, 10/3/2018, at 2. The trial court

requested that we remand the case “for consideration as a request for PCRA

relief.” Id.2

       Fisher was appointed an attorney on November 15, 2018, for the

purposes of this appeal. On March 6, 2019, Fisher filed a Petition for Remand

so that he would be able to present his PCRA claims with the benefit of his

present counsel. The Commonwealth did not file an appellate brief but in an

earlier   filing   opposing    Fisher’s   motion   for   bail   pending   appeal,   the

Commonwealth agreed that the claim in Fisher’s Motion was only cognizable

under the PCRA. See Commonwealth’s Response to Petition’s Motion for Bond

Pending Appeal, 11/1/2018, at ⁋ 8.

       Fisher, the Commonwealth and the trial court are correct that the

subject pro se Motion was improperly denied because it should have been

treated as Fisher’s first PCRA petition.         “Pursuant to the rules of criminal

procedure and interpretive case law, 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. McLaughlin, No.

2770 EDA 2018, 2019 WL 2499325, at *1 (Pa. Super. Ct. June 17, 2019)



____________________________________________


2 The filing of Fisher’s notice of appeal divested the trial court of jurisdiction
precluding reconsideration of the subject motion while the case is pending
appellate review.

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

2009)); see also Pa.R.Crim.P. 904(C).

      To remedy that error, we grant Fisher’s Petition for Remand so that he

can reassert his PCRA claims.      On remand, Fisher will be entitled to the

appointment of PCRA counsel. The petition will be treated as if it is Fisher’s

first request for PCRA relief.

      Finally, in addition to the Petition for Remand, Fisher’s appellate counsel

has petitioned to withdraw and filed a brief pursuant to Anders v. California,

386 U.S. 738 (1969), asserting that the grounds in Fisher’s Motion are

frivolous. However, the granting of Fisher’s Petition for Remand renders moot

the Petition to Withdraw as Fisher is now entitled to reassert his PCRA claims

with the assistance of counsel.

      Order vacated.      Petition for Remand granted.    Petition to Withdraw

denied as moot. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2019




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