J-S15031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MATHIS AVERY, SR.,

                            Appellant                No. 1175 EDA 2015


                   Appeal from the PCRA Order April 14, 2015
               in the Court of Common Pleas of Delaware County
               Criminal Division at No.: CP-23-CR-0002446-2009


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

MEMORANDUM BY PLATT, J.:                             FILED MARCH 21, 2016

        Appellant, Mathis Avery, Sr., appeals pro se from the order denying his

third petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We vacate and remand.

        We take the following facts and procedural history from the PCRA

court’s October 1, 2015 opinion and our independent review of the certified

record.    On November 2, 2011, a jury convicted Appellant of attempted

murder, aggravated assault, and possessing an instrument of crime.          On

December 20, 2011, the court sentenced Appellant to an aggregate term of

not less than 235 months nor more than 470 months’ incarceration, to be

followed by five years’ probation.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       On August 20, 2012, the Superior Court affirmed Appellant’s judgment

of sentence. (See Commonwealth v. Avery, 60 A.3d 575 (Pa. Super. filed

Aug. 20, 2012) (unpublished memorandum)). Appellant did not petition for

allowance of appeal with the Pennsylvania Supreme Court.

       On February 19, 2013, and September 18, 2013, Appellant filed pro se

post-conviction     petitions    that    he    incorrectly   titled   as   petitions   for

modification of sentence. The petitions challenged, inter alia, the legality of

his sentence and counsel’s effectiveness, and alleged newly discovered

evidence.     The court did not appoint counsel or decide these motions

because they were not forwarded to the judge’s chambers for disposition as

mandated by Pennsylvania Rule of Criminal Procedure 903(A). (See PCRA

Court Opinion, 10/01/15, at 3 n.3); see also Pa.R.Crim.P. 903(A) (“Upon

receipt of a petition for post-conviction collateral relief, the clerk of courts

promptly shall . . . transmit the petition . . . to the trial judge[.]”).

       On November 21, 2013, Appellant filed what was in fact his third PCRA

petition pro se. Thereafter, the court appointed PCRA counsel, who filed a

Turner/Finley1 “no-merit” letter and requested leave to withdraw.                      On

February 18, 2015, the court granted counsel’s petition to withdraw and

served Appellant with notice of its intent to dismiss the PCRA petition. See

____________________________________________


1
  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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Pa.R.Crim.P.     907(1).        In   response,   Appellant   filed   a   motion   for

reconsideration of his sentence on March 11, 2015. On April 14, 2015, the

court denied Appellant’s PCRA petition. Appellant timely appealed the denial

pro se.2

       However, we do not reach the issue of whether the court properly

denied what was Appellant’s third PCRA petition, because we agree with the

PCRA court that Appellant’s motions for reconsideration of sentence, which

were filed after his judgment of sentence became final, and raised issues

cognizable under the PCRA, should have been treated as PCRA petitions.

(See PCRA Ct. Op., at 3 n.3); see also Commonwealth v. Kutnyak, 781

A.2d 1259, 1261 (Pa. Super. 2001) (treating appellant’s motion as PCRA

petition “regardless of the manner in which the petition is titled”) (citation

omitted).

       It is well-settled that, “[g]enerally speaking, an indigent petitioner is

entitled to the appointment of counsel on his first post-conviction attack of

his conviction. This right to counsel, although not constitutionally mandated,

derives from the Pennsylvania Rules of Criminal Procedure, see Pa.R.Crim.P.

904(B)[.]” Commonwealth v. Stout, 978 A.2d 984, 988 (Pa. Super. 2009)

(case citation omitted).

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2
  The PCRA court did not order Appellant to file a statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). It filed an opinion on
October 1, 2015. See Pa.R.A.P. 1925(a).



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      Here, because Appellant’s timely post-conviction petitions were not

forwarded to the trial judge for disposition in accordance with Pennsylvania

Rule of Criminal Procedure 903(A), the court did not appoint counsel for

Appellant’s first PCRA petition, in violation of Criminal Rule 904(B). See id.

Additionally, it never ruled on the request for relief. As a result, Appellant

was denied the opportunity to raise an appellate challenge of the PCRA

court’s failure to appoint counsel. In other words, due to a breakdown of the

court system, Appellant was denied both his right to counsel for his first

PCRA petition, and the opportunity to challenge that issue on appeal.

      Therefore, we are constrained to vacate the court’s order denying what

was in fact Appellant’s third petition and remand for the appointment of

counsel for Appellant’s timely first PCRA petition “pursuant to proper post-

conviction relief proceedings.”    Id. (vacating order denying appellant’s

improperly titled petition for writ of habeas corpus and remanding for

appointment of PCRA counsel).

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/2016




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