J-S26035-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MELLONZO MEL BEY                           :
                                               :
                        APPELLANT              :   No. 1777 WDA 2019

               Appeal from the Order Entered October 21, 2019
      In the Court of Common Pleas of Fayette County Criminal Division at
                        No(s): CP-26-CR-0002058-2018,
                            CP-26-CR-0002059-2018


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

MEMORANDUM BY PELLEGRINI, J.:                            FILED JUNE 30, 2020

        Mellonzo Mel Bey (Bey) appeals1 from the October 21, 2019 order of the

Court of Common Pleas of Fayette County (trial court) denying his pro se


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*   Retired Senior Judge assigned to the Superior Court.

1 On November 19, 2019, Bey filed a single notice of appeal containing the
two above-listed docket numbers. On December 26, 2019, this court issued
a rule to show cause why the appeal should not be quashed in light of
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), and its progeny. Our
review of the record reveals that the October 21, 2019 order contained both
of the above-captioned docket numbers. In addition, both cases were
consolidated for a single jury trial on August 6, 2019, and it appears that Bey
was sentenced on both cases on August 8, 2019. While individual sentencing
orders were issued in each case, the orders do not contain an explanation of
Bey’s post-sentence and appellate rights, and a transcript of the sentencing
proceedings was not produced for this appeal. Under these circumstances,
we cannot discern from the record whether Bey was properly advised of his
post-sentence and appellate rights, and we excuse his non-compliance with
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Motion for Time Credit and Correct Commitment. After careful review, we

reverse and remand for further proceedings.

        A brief recitation of the procedural history of the cases is necessary to

our disposition. In each of the above-captioned cases, Bey was charged with

possession with intent to deliver a controlled substance, possession of a

controlled substance, and possession of drug paraphernalia.2        The charges

arose out of two sales of heroin Bey made to a confidential informant. Bey

proceeded to a consolidated jury trial on August 6, 2019, and was found guilty

of all charges. On August 8, 2019, he was sentenced in each case to 21 to 42

months’ incarceration, to be served concurrently.       He did not file a direct

appeal.

        On October 11, 2019, Bey filed a Motion for Time Credit and Correct

Commitment containing both docket numbers. Bey sought to have the period

from August 1, 2018, to August 8, 2019, credited toward his sentence,

claiming that he had been held in pre-trial incarceration during that time. The

trial court concluded that the motion was an untimely post-sentence motion




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Walker as a breakdown in court operations. See Commonwealth v.
Stansbury, 219 A.3d 157, 160 (Pa. Super. 2019).

2   35 P.S. §§ 780-113(a)(30), (16) & (32).




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and denied it without a hearing on October 21, 2019. Bey timely appealed. 3

Bey and the trial court have complied with Pa.R.A.P. 1925.

        “[A] challenge to the trial court’s failure to award credit for time spent

in custody prior to sentencing involves the legality of the sentence and is

cognizable under the [Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 et seq.].”

Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super. 2007); 42 Pa.C.S.

§ 9542.      Further, a trial court must construe any motion filed after a

defendant’s judgment of sentence becomes final as a petition filed pursuant

to the PCRA. Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super.

2011).     Bey’s judgment of sentence became final on September 9, 2019,4

when the period for filing a direct appeal expired. Therefore, the trial court

should have treated Bey’s motion, filed on October 11, 2019, as a first, timely

petition pursuant to the PCRA.5

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3 The trial court urges this court to quash the appeal as untimely, as it was
“accepted by the Superior Court on December 2, 2019 approximately forty-
two (42) days after the decision was entered.” Trial Court Opinion, 1/28/20,
at 2. However, the certificate of service on the notice of appeal is dated
November 19, 2019, and the envelope that the notice was mailed in was
postmarked shortly thereafter. As Bey is currently incarcerated, we conclude
that his notice of appeal was filed timely pursuant to the prisoner mailbox rule.
Smith v. Pa. Bd. of Probation & Parole, 683 A.2d 278, 282 (Pa. 1996).

4 Bey had 30 days from his August 8, 2019 sentencing to perfect a direct
appeal. Pa.R.A.P. 903(a). As the 30th day, September 7, 2019, fell on a
Saturday, Bey was required to file a direct appeal by Monday, September 9,
2019. See 1 Pa.C.S. 1908.

5   Our standard of review is well-settled.



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       It is well-settled that a petitioner has the right to counsel at each stage

of review of his or her first petition pursuant to the PCRA.                    Pa.R.Crim.P.

904(c); Commonwealth v. Williams, 167 A.3d 1, 5 (Pa. Super. 2017).

When an indigent petitioner has been deprived of counsel, this court should

remand       for   appointment       of    counsel     to     prosecute        the    petition.

Commonwealth v. Kenney, 732 A.2d 1161, 1164 (Pa. 1999). Appointed

counsel may then be permitted to file an amended PCRA petition raising any

additional    claims   he    or   she     identifies   upon    review     of    the    record.

Commonwealth v. Padden, 783 A.2d 299, 307-08 (Pa. Super. 2001).

       Our review of the record reveals that the trial court did not appoint

counsel to represent Bey in the prosecution of his PCRA petition. Therefore,

we reverse the order denying Bey’s motion and remand for the appointment

of counsel. If Bey wishes to proceed pro se, the trial court shall conduct a


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       The standard of review of an order dismissing a PCRA petition is
       whether that determination is supported by the evidence of record
       and is free of legal error. The PCRA court’s findings will not be
       disturbed unless there is no support for the findings in the certified
       record. Further, a PCRA court has discretion to dismiss a PCRA
       petition without a hearing if the court is satisfied that there are no
       genuine issues concerning any material fact; that the defendant
       is not entitled to post-conviction collateral relief; and that no
       legitimate purpose would be served by further proceedings.

Commonwealth v. Cruz, 223 A.3d 274, 277 (Pa. Super. 2019) (citations and
quotation marks omitted).




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Grazier6 hearing to determine whether his waiver of counsel is voluntary,

knowing, and intelligent.

       Order vacated.      Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

       Judge McLaughlin joins the memorandum.

       Judge Murray concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2020




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6   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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