J-S05007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                             Appellee

                       v.

TONI JOHNSON,

                             Appellant                  No. 623 MDA 2015


             Appeal from the PCRA Order Entered October 16, 2014
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0001312-2009


BEFORE: BENDER, P.J.E., SHOGAN, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                        FILED JANUARY 20, 2016

        Appellant, Toni Johnson, appeals pro se, and nunc pro tunc, from the

post-conviction court’s October 16, 2014 order denying his petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

For reasons discussed infra, the PCRA court requests that we remand for

further proceedings.        After careful review, we agree with the PCRA court’s

request and, accordingly, we vacate its October 16, 2014 order and remand.

        We summarize the complicated procedural history of Appellant’s case,

as follows.     On May 11, 2010, a jury convicted Appellant of burglary,

conspiracy to commit burglary, theft by unlawful taking, and receiving stolen

property. On May 13, 2010, he was sentenced to an aggregate term of 7½

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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to 15 years’ incarceration. Appellant’s counsel, Tami Fees, Esq., filed post-

sentence motions on his behalf, which were denied by order docketed on

August 30, 2010. Attorney Fees then filed an untimely notice of appeal with

this Court on December 30, 2010. She also failed to complete a docketing

statement as mandated by Pa.R.A.P. 3517.         Accordingly, on February 24,

2011, this Court issued an order dismissing Appellant’s appeal. See Order,

2/24/11 (docketed at 16 MDA 2011).1

       Over the ensuing months, Appellant inquired about the status of his

appeal, indicating that he was unaware that it had been dismissed by this

Court. For instance, on August 1, 2011, Appellant filed a pro se request for

a copy of the docket entries to ascertain the status of his appeal.       See

“Letter Requesting Copy of Docket Entries In Forma Pauperis,” 8/1/11

(docket entry 33). The docket states that Appellant’s request was sent to

the trial judge, but there is no indication that a copy of the docket sheet was

forwarded to Appellant. Additionally, on September 23, 2011, Appellant filed

a pro se “Motion for Disclosure of Results of Pending Appeal,” again

requesting information about the outcome of his December 30, 2010 appeal.

____________________________________________


1
  In that order, we also directed Attorney Fees to submit a certification,
within 10 days of the filing of our order, confirming that she informed
Appellant about the dismissal of his appeal. See id. No such certification
was filed by Attorney Fees. We also note that our February 24, 2011 order
was entered on the trial court’s docket on April 11, 2011. The certified
record does not indicate that Appellant was served with a copy of our order
at the time it was docketed below.



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See “Motion for Disclosure of Results of Pending Appeal,” 9/23/11 (docket

entry 34).

       In response to these filings, the court ultimately issued a “Clarification

Order” on October 12, 2011, advising Appellant that his appeal had been

dismissed by this Court.        On December 13, 2011, Appellant filed a pro se

“Petition for Leave to File Appeal Nunc Pro Tunc” (hereinafter “NPT

Petition”).     Therein, Appellant argued that Attorney Fees had acted

ineffectively in handling his direct appeal and requested the reinstatement of

his appeal rights nunc pro tunc. While that petition was pending, Appellant

also filed a petition seeking the withdrawal of Attorney Fees and permission

to proceed pro se. On January 12, 2012, the court issued an order granting

Appellant’s request to proceed pro se,2 and denying his NPT Petition without

explanation.

       On May 7, 2012, Appellant filed a pro se PCRA petition, alleging that

his sentence is illegal. Steven Trialonas, Esq., was appointed to represent

Appellant and filed an amended PCRA petition on his behalf.             Therein,

Attorney Trialonas argued, inter alia, that Attorney Fees had acted

ineffectively in handling Appellant’s direct appeal, which resulted in its

dismissal. On August 29, 2014, the PCRA court issued a Pa.R.Crim.P. 907


____________________________________________


2
  There is no indication that the court conducted a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), before permitting
Appellant to proceed pro se.



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notice of its intent to dismiss Appellant’s petition as being untimely filed. On

September 17, 2014, Attorney Trialonas filed a response, arguing that

Attorney Fees’ abandonment of Appellant on direct appeal constituted an

after-discovered fact that Appellant had first discovered when the trial court

issued the Clarification Order on October 12, 2011. Attorney Trialonas also

maintained that Appellant had timely raised this issue in his pro se NPT

Petition.

      Despite Attorney Trialonas’ response to the Rule 907 notice, on

October 16, 2014, the PCRA court issued an order denying Appellant’s

petition as untimely. On November 17, 2014, Appellant filed a pro se notice

of appeal.   Because Appellant was represented by Attorney Trialonas, the

Centre County Prothonotary’s Office did not forward Appellant’s pro se notice

of appeal to this Court. However, on December 29, 2014, Attorney Trialonas

filed a petition to withdraw from representing Appellant, which the court

granted on February 3, 2015. On April 8, 2015, the PCRA court issued an

order directing the Centre County Prothonotary’s Office to file Appellant’s pro

se notice of appeal with this Court.    The court’s April 8, 2015 order also

directed Appellant to file a pro se Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. Appellant timely complied.

      On appeal, Appellant states the following question for our review:

“Whether the PCRA court erred as a matter of law and/or abused its

discretion in dismissing Appellant’s request for PCRA relief as untimely

filed?” Appellant’s Brief at 4. This Court’s standard of review regarding an

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order denying a petition under the PCRA is whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.

Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007).

        We must begin by addressing the timeliness of Appellant’s petition,

because the PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded in order to address the merits of a petition.

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded to address the merits of the petition); Commonwealth v.

Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002) (holding the Superior

Court lacks jurisdiction to reach merits of an appeal from an untimely PCRA

petition). Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the exceptions set forth

in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, in relevant

part:

        (b) Time for filing petition.--

          (1) Any petition under this subchapter, including a second
          or subsequent petition, shall be filed within one year of the
          date the judgment becomes final, unless the petition
          alleges and the petitioner proves that:

             (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;



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

42 Pa.C.S. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

        Here, the trial court denied Appellant’s post-sentence motions in an

order docketed on August 30, 2010; because Attorney Fees failed to file a

timely notice of appeal, Appellant’s judgment of sentence became final thirty

days after the denial of his post-sentence motions, or on September 29,

2010.     See Pa.R.Crim.P. 720(A)(2) (stating that if the defendant files a

timely post-sentence motion, the notice of appeal must be filed within 30

days of the entry of the order deciding it); 42 Pa.C.S. § 9545(b)(3)

(directing that judgment of sentence becomes final at the conclusion of

direct review or the expiration of the time for seeking the review).

Accordingly, Appellant had until September 29, 2011, to file a timely PCRA

petition, rendering his May 7, 2012 petition patently untimely.

        While the PCRA court initially concluded in its October 16, 2014

opinion and order that Appellant’s petition was untimely and failed to satisfy

any exception set forth in section 9545(b)(1)(i)-(iii), in its Rule 1925(a)

opinion, the court changes course and asks that we remand for further


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proceedings. In support, the court initially acknowledges that it should have

treated Appellant’s December 13, 2011 NPT Petition as his first PCRA

petition and appointed counsel. See PCRA Court Opinion (PCO), 5/14/15, at

4 (citing Commonwealth v. Kutnyak, 781 A.2d 1259, 1262 (Pa. Super.

2001) (holding that a petitioner is entitled to counsel on his first PCRA

petition despite its apparent untimeliness)).     The court then goes on to

explain why Attorney Trialonas sufficiently pled and proved, on Appellant’s

behalf, the applicability of the timeliness exception of section 9545(b)(1)(ii),

stating:

             “The plain language of Section 9545(b)(2)(ii) and Section
      9545(b)(2) creates a three-part test: 1) the discovery of an
      unknown fact; 2) the fact could not have been learned by the
      exercise of due diligence; and 3) the petition for relief was filed
      within 60 days of the date that the claim could have been
      presented.” Commonwealth v. Smith, 35 A.3d 766, 771 (Pa.
      Super. [] 2011). After filing a Motion for Disclosure of Results
      Pending Appeal on September 23, 2011, Appellant became
      aware of Fees’ abandonment on October 12, 2011 when the trial
      court issued a Clarification Order notifying Appellant of the
      dismissal of his direct appeal. This fact was previously unknown
      to him as evidenced by Appellant’s averments that he exercised
      due diligence and made many attempts to contact Attorney Fees
      but his efforts were unanswered. Furthermore, Appellant sent a
      letter to the Centre County Court Administrator on August 1,
      2011 in which he requested a copy of his docket sheet to
      determine the status of his appeal. While this letter remained
      unanswered as it was not in the form of a motion or petition, it is
      additional evidence that although Appellant attempted to
      exercise due diligence, he was unable to learn that his appeal
      had been dismissed, and thus, that Attorney Fees had
      abandoned him until the trial court issued the October 12, 2011
      Clarification Order.

            Upon learning of Attorney Fees’ abandonment on October
      12, 2011, Appellant then had sixty days to file a claim under the

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      [PCRA]. Appellant’s NPT Petition was filed on December 13,
      2011, sixty one days after learning of the abandonment[;]
      however, the envelope in which Appellant mailed his NPT Petition
      was dated December 9, 2011, within the allotted sixty days for
      filing. As Appellant was effectively unrepresented by counsel
      due to Attorney Fees’ abandonment, it is proper to apply the
      prisoner mailbox rule to Appellant’s filing. “Under the prisoner
      mailbox rule, a legal document is deemed ‘filed’ on the date it is
      delivered to the proper prison authority or deposited in the
      prison mailbox.” Kittrell v. Watson, 88 A.3d 1091, 1097 (Pa.
      [Cmwlth]. Ct. 2014). As Appellant’s NPT Petition was mailed on
      December 9, 2011, it necessarily must have been deposited in
      the prison mailbox on or before that date. As such, Appellant’s
      NPT Petition was properly filed within the requisite sixty day time
      period. Concluding that Appellant would be able to establish
      jurisdiction of this Court under Section 9545(b)(1)(ii), we are …
      prepared to address this issue and any underlying claims upon
      the return of jurisdiction from this Honorable Court.

PCO at 5-6.

      We appreciate the PCRA court’s concession that it erred by not treating

Appellant’s NPT Petition as his first PCRA petition, entitling him to the

appointment of counsel.     See Commonwealth v. Smith, 818 A.2d 494,

499 (Pa. 2003) (“[A]n indigent petitioner, who files his first PCRA petition, is

entitled   to   have   counsel   appointed   to   represent    him   during   the

determination of whether any of the exceptions to the one-year time

limitation apply.”).    That error makes the circumstances of Appellant’s

attempt to satisfy a timeliness exception unique.             Because the court

improperly failed to appoint counsel after Appellant filed the pro se NPT

Petition, Appellant’s first opportunity to have counsel review the facts of his

case and raise Attorney Fees’ abandonment as an after-discovered fact

under section 9545(b)(1)(ii) was when Attorney Trialonas was appointed to



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represent Appellant in litigating his May 7, 2012 petition.        The court

acknowledges that its erroneous handling of Appellant’s NPT Petition initiated

the odd and complex circumstances of this case, and asks this Court to

vacate its order denying Appellant’s PCRA petition and remand. We agree

that such a disposition is appropriate under the specific facts of this case.

Accordingly, we vacate the PCRA court’s October 16, 2014 order and remand

for further proceedings.

      Order vacated. Case remanded for further proceedings.       Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2016




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