J-S41044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                      Appellee           :
                                         :
                 v.                      :
                                         :
 MARQUISE PIERRE DON MIMS                :
                                         :
                      Appellant          :       No. 3234 EDA 2017

              Appeal from the PCRA Order September 1, 2017
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0003336-2016


BEFORE:    GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

JUDGMENT ORDER BY GANTMAN, P.J.:                  FILED AUGUST 23, 2018

      Appellant, Marquise Pierre Don Mims, appeals from the order entered in

the Bucks County Court of Common Pleas, which dismissed his first petition

filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546. On December 5, 2016, Appellant entered a negotiated guilty plea to

acquisition of a controlled substance by fraud and identity theft. The court

sentenced Appellant that day to the negotiated aggregate sentence of three

to six years’ imprisonment. Appellant did not file post-sentence motions or a

direct appeal.

      On March 6, 2017, Appellant timely filed a pro se PCRA petition. The

court appointed counsel on March 16, 2017, who filed an amended PCRA

petition on July 31, 2017. Without issuing any notice per Pa.R.Crim.P. 907,

the court summarily dismissed the petition on September 1, 2017. Appellant


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S41044-18


timely filed a notice of appeal on September 29, 2017. On October 2, 2017,

the court ordered Appellant to file a Pa.R.A.P. 1925(b) statement; Appellant

timely complied on October 23, 2017.

      Preliminarily, Pennsylvania Rule of Criminal Procedure 907 provides, in

relevant part:

         Rule 907. Disposition Without Hearing

         Except as provided in Rule 909 for death penalty cases,

            (1) the judge shall promptly review the petition, any
         answer by the attorney for the Commonwealth, and other
         matters of record relating to the defendant’s claim(s). If the
         judge is satisfied from this review that there are no genuine
         issues concerning any material fact and that the defendant
         is not entitled to post-conviction collateral relief, and no
         purpose would be served by any further proceedings, the
         judge shall give notice to the parties of the intention to
         dismiss the petition and shall state in the notice the reasons
         for the dismissal. The defendant may respond to the
         proposed dismissal within 20 days of the date of the notice.
         The judge thereafter shall order the petition dismissed,
         grant leave to file an amended petition, or direct that the
         proceedings continue.

Pa.R.Crim.P.     907(1).   Issuance   of    Rule   907   notice   is   mandatory.

Commonwealth v. Guthrie, 749 A.2d 502 (Pa.Super. 2000).                 See also

Commonwealth v. Feighery, 661 A.2d 437 (Pa.Super. 1995) (explaining

notice requirement of intention to dismiss is mandatory; vacating and

remanding for fulfillment of notice requirement). Nevertheless, the failure to

challenge on appeal the absence of Rule 907 notice constitutes waiver.

Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super. 2013); Commonwealth




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v. Williams, 909 A.2d 383 (Pa.Super. 2006).1

       Instantly, Appellant filed a timely pro se PCRA petition on March 6, 2017,

and a counseled amended PCRA petition on July 31, 2017.               The court

summarily dismissed the petition on September 1, 2017, without first issuing

Rule 907 notice and giving Appellant an opportunity to respond.             See

Pa.R.Crim.P. 907(1); Guthrie, supra; Feighery, supra.             Appellant has

challenged the lack of Rule 907 notice on appeal. (See Appellant’s Brief at 7,

11-12). Compare Taylor, supra; Williams, supra. Accordingly, we vacate

the order denying PCRA relief and remand for appropriate further proceedings.

       Order vacated; case remanded for further proceedings. Jurisdiction is

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/18




____________________________________________


1Further, where a PCRA petition is untimely, the court’s failure to issue Rule
907 notice is not reversible error. Taylor, supra. Because the current PCRA
petition was timely filed, this exception does not apply.

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