J-S26039-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES EARL JOHNSON                         :
                                               :
                       Appellant               :   No. 1845 WDA 2019

               Appeal from the Order Entered December 2, 2019
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0003200-2010


BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                             FILED JULY 06, 2020

        James Earl Johnson (Johnson) appeals the order of the Court of Common

Pleas of Erie County (trial court) denying his claim that he received an illegal

sentence. Because the trial court failed to treat Johnson as a petitioner for

post-conviction relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546, the order denying Johnson’s claims must be vacated and the

case remanded for further proceedings.




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*   Retired Senior Judge assigned to the Superior Court.
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                                               I.

        On June 9, 2011, following a bench trial, Johnson was convicted of rape

by forcible compulsion, burglary and terroristic threats.1     He then entered

pleas in a separate case to possession of drugs and possession of drug

paraphernalia.2

        At a global sentencing on October 17, 2011, the trial court initially

imposed the following terms, all of which were to run consecutively: rape by

forcible compulsion (life without the possibility of parole); burglary (life

without the possibility of parole); terroristic threats (30 to 60 months);

possession of drugs (30 days); and possession of drug paraphernalia (six to

12 months). Johnson was also designated a Sexually Violent Predator.

        He appealed and this Court affirmed the judgment of sentence on

October 30, 2012. See Commonwealth v. Johnson, No. 1852 WDA 2011

(Pa. Super. August 10, 2012) (unpublished memorandum). Johnson sought

and was denied post-conviction relief on October 2, 2013, and we affirmed

that denial in Commonwealth v. Johnson, Nos. 1751 WDA 2013, 2004 WDA

2013 (Pa. Super. August 22, 2014) (unpublished memorandum).




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1   18 Pa.C.S. §§ 3121(a)(1), 3502(a), and 2706(a)(1), respectively.

2   35 Pa.C.S. §§ 780-113(a)(31), and (a)(32), respectively.




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       Following a federal decision that overturned Johnson’s sentence, 3 the

trial court resentenced Johnson on December 3, 2018, reducing the life

sentences for the rape and burglary convictions to an aggregate term of 22.5

to 45 years, with credit for all time served. Johnson appealed the discretionary

aspects of the sentence, and this Court affirmed the judgment of sentence on

June 24, 2019. See Commonwealth v. Johnson, No. 1805 WDA 2018 (Pa.

Super. June 24, 2019) (unpublished memorandum). Johnson did not seek

further review and his court-appointed attorney was permitted to withdraw.

       On November 22, 2019, Johnson filed his present claims, pro se, which

he styled as a “motion to correct an illegal sentence.” He primarily argued

that a magisterial district judge, who was not assigned to any of Johnson’s

cases, knew the victim personally and had at one point employed the victim’s

mother. Johnson alleged that the magisterial district judge coordinated the

investigation against him and then advocated for his guilt to the trial court

and other government officers, influencing the result of the bench trial ending

on June 9, 2011.

       As legal grounds to support his claim, Johnson cited the Fourteenth

Amendment of the United States Constitution, and the Pennsylvania codes of



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3See Johnson v. Superintendent Mahanoy SCI, 2018 WL 7246835, at *1
(3d Cir. Aug. 30, 2018) (unpublished opinion) (granting petition for writ of
habeas corpus because original sentences were improperly enhanced to a
mandatory term of life).


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judicial conduct that forbid partiality, the appearance of partiality, and the

abuse of prestige on the part of judicial officers. Johnson attached a separate

motion and affidavit in support of his request to proceed in forma pauperis so

that he could be appointed counsel.

      The trial court denied Johnson’s claim of sentencing error on December

3, 2019. The order itself consisted of the first page of Johnson’s motion, with

handwritten notations by the trial court in the margins. See Trial Court Order,

12/3/2019, at 1. Specifically, the trial court wrote the date of the denial, the

word “Denied,” a signature, and Johnson’s mailing address. Id. Similarly,

the trial court handwrote the separate order denying Johnson’s motion to

proceed in forma pauperis, writing on Johnson’s motion that it was “Denied,

as there is nothing pending before the [trial court].” It appears that the trial

court gave Johnson no advance notice of its intent to deny those motions.

      Johnson timely appealed and the trial court directed him to submit a

1925(b) Concise Statement of Issues Complained of on Appeal. In compliance

with the trial court’s directive, Johnson submitted a 1925(b) Statement

consisting of five grounds:

      1. Was proper judicial procedure used to deny [Johnson’s] motion
      to correct illegal sentence and petition for leave to proceed in
      forma pauperis?

            a. An Order of the Court/Court Order is used to give notice
      to a party of the Court’s decision in a matter and the reason for
      its decision.

      2. Did Trial Court arbitrarily deny [Johnson’s] Motion to correct
      illegal sentence without an evidentiary hearing?

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             a. A simple denial with no appraisal of the Court’s posture
       of [Johnson’s] claims as cognizable or otherwise[.]

       3. Was equal protection afforded [Johnson] during the criminal
       process of the case?

             a. The Fourteenth Amendment provision requiring states …
       to give similarly situated persons or classes similar treatment
       under the law.

       4. Was [Johnson] afforded Due Process under the Fourteenth
       Amendment of the United States Constitution and Article 1,
       Section 9 of the Pennsylvania Constitution?

             a. Where the constitution gives explicit directions as to how
       a thing is to be done, those directions must be followed to the
       exclusion of all other means that may be deemed better or more
       convenient.

       5. Is [Johnson’s] sentence illegal?

            a. Any act that violates the criminal process violates a
       person’s constitutional rights to due process.

1925(b) Statement, 12/27/2019, at 1.

       The trial court filed a 1925(a) opinion explaining that Johnson’s claims

were properly denied because he did not identify a precise error or illegality

in the sentencing process. See 1925(a) Opinion, 1/9/2020, at 1. Further,

the trial court stated that Johnson had waived the claims in his 1925(b)

Statement because it was so vague as to be equivalent to no 1925(b)

statement at all. See id.4


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4Johnson’s appellate brief is equally lacking in specificity as to the arguments
and authorities he relies upon. The Commonwealth did not file an appellate
brief, instead resting on the trial court’s 1925(a) opinion.


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                                               II.

       Although the trial court is correct that Johnson’s claims are somewhat

vague and inartfully crafted, we find that Johnson is nevertheless entitled to

appellate relief.     Johnson titled his filing as a “motion to correct illegal

sentence,” but it should have been treated as a timely PCRA petition.5 As

such, the trial court’s failure to appoint PCRA counsel requires us to vacate

the order on review and remand so that Johnson may benefit from that rule-

based right.

       Johnson’s first sentencing was held in 2011, but significantly, he was

resentenced on December 3, 2018. The direct appeal from the judgment of

sentence entered at the resentencing concluded on June 24, 2019, and

because Johnson did not seek further review, his judgment of sentence

became final 30 days later, on July 24, 2019. Johnson filed his present claims

within a year of that date, on November 22, 2019.

       Regardless of what Johnson called the filing, it was a first and timely-

filed PCRA petition.6 See Commonwealth v. Kutnyak, 781 A.2d 1259, 1261

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5 “In reviewing the propriety of the trial court’s dismissal of the petition, we
are limited to determining whether the court’s findings are supported by the
record and whether the order is free of legal error.” Commonwealth v.
Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001).

6 A PCRA petition is timely if it is “filed within one year of the date the judgment
[of sentence] becomes final.” 42 Pa.C.S. § 9545(b)(1). “[A] judgment
becomes final at the conclusion of direct review, including discretionary review
in the Supreme Court of the United States and the Supreme Court of



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(Pa. Super. 2001) (treating the appellant’s motion as a PCRA petition

“regardless of the manner in which the petition is titled”); see also

Commonwealth v. Fantauzzi, No. 19 EDA 2018 at *5 (Pa. Super. May 22,

2019) (unpublished memorandum) (“Appellant is before us on appeal from

the denial of his first and timely-filed PCRA petition following resentencing.”).

       The PCRA “provides for an action by which persons convicted of crimes

they did not commit and persons serving illegal sentences may obtain

collateral relief.” 42 Pa.C.S. § 9542. When an action is cognizable under the

PCRA, it is the “sole means of obtaining collateral relief and encompasses all

other common law and statutory remedies for the same purpose[.]” Id.; see

also Commonwealth v. Hockenberry, 689 A.2d 283, 288 (Pa. Super. 1997)

(explaining that since a motion to modify a sentence must be filed within ten

days of its imposition, and a direct appeal from a judgment of sentence must

be filed within thirty days, the PCRA is the only vehicle for addressing legality

of a sentence beyond those time limits). “We have repeatedly held that . . .

any petition filed after the judgment of sentence becomes final will be treated

as a PCRA petition.” See Commonwealth v. Jackson, 30 A.3d 516, 521

(Pa. Super. 2011) (quoting Commonwealth v. Johnson, 803 A.2d 1291,

1293 (Pa. Super. 2002)).



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Pennsylvania, or at the expiration of time for seeking the review.” 42 Pa.C.S.
§ 9545(b)(3).


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       In several previous proceedings, Johnson qualified for court-appointed

counsel. Likewise, here, he sought counsel to represent him upon filing his

PCRA petition. “[W]hen an unrepresented defendant satisfies the judge that

the defendant is unable to afford or otherwise procure counsel, the judge shall

appoint counsel to represent the defendant on the defendant’s first petition

for post-conviction collateral relief.” See Pa.R.Crim.P. 904(C). The trial court

improperly deprived him of that important rule-based right.7

       It is immaterial whether Johnson’s claims were found to be waived or

meritless – he was still entitled to counsel. See e.g., Commonwealth v.

Guthrie, 749 A.2d 502, 504 (Pa. Super. 2000) (“[W]here an indigent PCRA

petitioner requests the appointment of counsel for assistance in the

preparation of a first petition pursuant to the PCRA, counsel must be appointed

despite    the    apparent      untimeliness     of   the   petition.”);   see   also

Commonwealth v. Smith, 818 A.2d 494, 500 (Pa. Super. 2003) (same).

       Were a court permitted to deny counsel to a first-time PCRA petitioner

and then dismiss a PCRA petition for lack of merit or waiver, it would



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7  The Comment to Pa.R.Crim.P. 904 provides that “[c]onsistent 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.” (Emphasis added). “While the right to legal representation
in the PCRA context is not constitutionally derived, the importance of that right
cannot be diminished merely due to its rule-based derivation.”
Commonwealth v. Robinson, 970 A.2d 455, 458 (Pa. Super. 2009).


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undermine “the intent of the Legislature in providing counsel to indigent

petitioners in collateral proceedings.”          Kutnyak, 781 A.2d at 1262.

Accordingly, “[t]he denial of PCRA relief cannot stand unless the petitioner

was afforded the assistance of counsel.” Commonwealth v. Albrecht, 720

A.2d 693, 699 (Pa. 1998). To the extent Johnson did not adequately preserve

any issues for appeal as the trial court found, Johnson was nevertheless

deprived of representation on a first-time PCRA petition, and “this Court is

required to raise this error sua sponte and remand for the PCRA court to

correct that mistake.” Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa.

Super. 2011).8

       For the reasons stated above, we vacate the order on review and direct

the trial court to appoint Johnson PCRA counsel. In so doing, we make no

comment on the substantive merit of Johnson’s claims, such as they are.

       Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.




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8 An alternative ground for vacating the trial court’s order is the lack of notice
of the ruling. See Pa.R.Crim.P. 907(1). Rule 907 provides that where a
petition is summarily dismissed, the petitioner must first be given the reasons
for the dismissal and an opportunity to respond within 20 days of that notice.
See generally Commonwealth v. Feighery, 661 A.2d 437 (Pa. Super.
1995). A court’s failure to abide by this requirement is reversible error. See
id.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2020




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