J-S01012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
JUAN C. SEBASTIAN,                      :
                                        :
                  Appellant             :         No. 942 MDA 2017

                  Appeal from the PCRA Order May 24, 2017
               in the Court of Common Pleas of Berks County,
            Criminal Division at No(s): CP-06-CR-0002462-2002

BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                     FILED FEBRUARY 26, 2018

      Juan C. Sebastian (“Sebastian”) appeals, pro se, from the Order

dismissing his first Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”).   See 42 Pa.C.S.A. §§ 9541-9546.       We vacate and remand for

further proceedings.

      In 2010, a jury convicted Sebastian of three counts of indecent

assault; two counts of rape; and one count each of sexual assault, indecent

exposure, and corruption of minors. The trial court sentenced Sebastian to

23½ to 57 years in prison.      Sebastian was also classified as a sexually

violent predator. This Court affirmed the judgment of sentence on June 21,
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2012. See Commonwealth v. Sebastian, 53 A.3d 936 (Pa. Super. 2012)

(unpublished memorandum).1 Sebastian did not seek further review.

        On December 19, 2016, Sebastian filed a PCRA Petition.        The PCRA

court appointed Lara Glenn Hoffert, Esquire (“Attorney Hoffert”), as

Sebastian’s counsel. On January 9, 2017, the PCRA court directed Attorney

Hoffert to file an amended petition or a “no-merit” letter pursuant to

Turner/Finley.2        The PCRA court eventually expanded the time to May 1,

2017.        Attorney Hoffert did not file either an amended petition or a “no-

merit” letter.      Thereafter, on May 24, 2017, the PCRA court vacated the

appointment of Attorney Hoffert and dismissed Sebastian’s PCRA Petition.

Sebastian, pro se, filed a timely Notice of Appeal.

        On appeal, Sebastian raises the following questions for our review:

        I.      Whether on May 24, 2107, the [PCRA] court erred when it
                dismissed [Sebastian’s] Motion for post[-]conviction relief
                nunc pro tunc for lack of jurisdiction?

        II.     Whether on May 24, 2017, the [PCRA] court erred when it
                entered an Order vacating the appointment of [Attorney
                Hoffert] to represent [Sebastian]?




____________________________________________


1 We note that Sebastian initially did not file a direct appeal. However, his
direct appeal rights were reinstated following the filing of a PCRA Petition.

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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Brief for Appellant at 3 (some capitalization omitted). The Commonwealth

concedes that Sebastian’s claims have merit, and that the case should be

remanded to the PCRA court. See Brief for the Commonwealth at 9-10.

      Pennsylvania Rule of Criminal Procedure 904(C) provides, in pertinent

part, that “when 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.” Pa.R.Crim.P. 904(C) (emphasis added);

see also Commonwealth v. Henkel, 90 A.3d 16, 22-23 (Pa. Super. 2014)

(en banc) (applying Rule 904(C) and collecting cases); Commonwealth v.

Padden, 783 A.2d 299, 308 (Pa. Super. 2001) (stating that “[i]t is

abundantly clear that a first-time pro se PCRA petitioner is entitled to the

benefit of the assistance of counsel to help identify and properly present

potentially meritorious issues for the trial court’s consideration.”). Further,

the fact that a first petition appears untimely on its face does not abrogate a

petitioner’s right to the assistance of counsel.    See Commonwealth v.

Ramos, 14 A.3d 894, 895 (Pa. Super. 2011) (noting that “a first-time PCRA

petitioner[,] whose petition appears untimely on its face[,] is entitled to

representation for assistance in determining whether the petition is timely or

whether any exception to the normal time requirements is applicable.”).

Following the filing of the first PCRA petition, the petitioner is entitled to




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representation     throughout      the    post-conviction   collateral   proceedings,

including any appeal. See Pa.R.Crim.P. 904(F)(2).

       Here, Sebastian filed his first PCRA Petition in December 2016,3 well

after the expiration of the one-year time limit to file a timely petition. The

PCRA court appointed Attorney Hoffert as counsel.                However, Attorney

Hoffert did not take any action on Sebastian’s PCRA Petition.                    See

Commonwealth v. Cherry, 155 A.3d 1080, 1083 (Pa. Super. 2017)

(stating that “[w]hen appointed, 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 Turner/Finley.”); id. (noting that “[i]f appointed counsel fails

to take either of these steps, our courts have not hesitated to find that the

petition was effectively uncounseled.”). Moreover, Sebastian did not elect to

proceed pro se, and the PCRA court did not hold a hearing pursuant to

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). Thus, the PCRA court

erred when it vacated the appointment of Attorney Hoffert, without any

other action.      Accordingly, we remand to the PCRA court to appoint




____________________________________________


3 See Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 2013)
(stating that “when a PCRA petitioner’s direct appeal rights are reinstated
nunc pro tunc in his first PCRA petition, a subsequent PCRA petition will be
considered a first PCRA petition ….”).



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Sebastian PCRA counsel within 30 days, and permit counsel to file either an

amended PCRA petition or a Turner/Finley “no-merit” letter.4

       Order vacated; case remanded for further proceedings in accordance

with this Memorandum; jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2018




____________________________________________


4 Additionally, the PCRA court failed to comply with the notice requirements
set forth in Pennsylvania Rule of Criminal Procedure 907. See Pa.R.Crim.P.
907(1); cf. Commonwealth v. Zeigler, 148 A.3d 849, 851 n.2 (Pa. Super.
2016) (stating that “failure to issue Rule 907 notice is not reversible error
where the record is clear that the petition is untimely.”). Nevertheless,
because of our disposition regarding the appointment of counsel, we need
not further address the lack of a Rule 907 notice.



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