J-S49007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PETER JOHN OLDFIELD,

                            Appellant                No. 1946 MDA 2014


             Appeal from the PCRA Order Entered October 6, 2014
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0002401-2012


BEFORE: BENDER, P.J.E., ALLEN, J., and OLSON, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED AUGUST 17, 2015

        Appellant, Peter John Oldfield, appeals from the order denying his Post

Conviction Relief Act1 (PCRA) petition as untimely. Additionally, Appellant’s

counsel, Anthony J. Tambourino, Esq., has filed a petition to withdraw from

representing Appellant, along with an Anders2 brief. While a Turner-

Finley3 ‘no-merit’ letter is the appropriate filing, we may accept an Anders

brief in lieu thereof. See Commonwealth v. Fusselman, 866 A.2d 1109,

1111 n.3 (Pa. Super. 2004). For the reasons stated infra, we grant Attorney

Tambourino’s petition to withdraw, but we are nevertheless compelled to
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1
    42 Pa.C.S. §§ 9541-9546.
2
    Anders v. California, 386 U.S. 738 (1967).
3
 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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vacate the PCRA court’s order and remand for further proceedings consistent

with this decision.

      In January of 2012, Appellant was charged with various crimes,

including his second offense of driving under the influence (DUI) of a

controlled substance, 75 Pa.C.S. § 3802(d)(1).        As Appellant’s current

counsel, Attorney Tambourino explains, Appellant “initially applied and

qualified for a public defender and was represented by then Public Defender,

Kelley Black, Esquire.   [Appellant] then hired privately retained counsel,

George Marros, Esquire, who entered his appearance on October 23, 2012.”

Anders Brief at 5. Attorney Marros represented Appellant when, on August

5, 2013, Appellant pled guilty to the DUI offense, as well as impersonating a

public servant, 18 Pa.C.S. § 4912. Appellant was sentenced that same day

to a term of 17 months’ to 5 years’ incarceration. Appellant did not file a

direct appeal and, therefore, his judgment of sentence became final on

September 4, 2013, at the expiration of the thirty day time-period for

seeking review with this Court.     See 42 Pa.C.S. § 9545(b)(3) (stating

judgment of sentence becomes final at the conclusion of direct review or the

expiration of the time for seeking the review); Pa.R.A.P. 903(a) (“Except as

otherwise prescribed by this rule, the notice of appeal required by Rule 902

(manner of taking appeal) shall be filed within 30 days after the entry of the

order from which the appeal is taken.”).

      On September 24, 2014, Appellant filed a pro se PCRA petition.

Therein, he alleged that his sentence is illegal, and that Attorney Marros was

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ineffective for not challenging the legality of his sentence.   Appellant also

stated that he did not have an attorney, he was unable to afford private

counsel, and that he desired that counsel be appointed to represent him in

the post-conviction proceedings. See Pro Se PCRA Petition, 9/24/14, at 7.

      However, the PCRA court did not appoint counsel.             The record

indicates that the York County Clerk of Courts served Attorney Marros with

Appellant’s pro se petition, yet Attorney Marros took no action on Appellant’s

behalf.   On October 6, 2014, the PCRA court issued an order denying

Appellant’s petition as untimely. Prior to doing so, the court did not hold a

hearing or, alternatively, issue the required Pa.R.Crim.P. 907 notice of its

intent to dismiss. Again, the clerk of courts served Attorney Marros with the

PCRA court’s October 6, 2014 order denying Appellant relief, but Attorney

Marros did nothing in response.

      On November 6, 2014, Appellant filed a pro se notice of appeal. The

next day, November 7, 2014, Attorney Marros filed a petition to withdraw as

Appellant’s counsel, which the PCRA court granted on November 13, 2014.

On November 14, 2014, the PCRA court issued an order directing Appellant

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. After being granted one extension of time, Appellant filed a timely

Rule 1925(b) statement on January 2, 2015. Therein, Appellant reiterated

that his sentence is illegal and that Attorney Marros acted ineffectively in

representing him. Appellant also asserted, inter alia, that his “[r]equests for

legal counsel were repeatedly ignored.”        Rule 1925(b), 1/2/15, at 1.

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Specifically, Appellant pointed out that he “requested, in his PCRA petition,

that the [c]ourt appoint him counsel[,]” yet “[n]o counsel was appointed.”

Id. at 2.    Appellant further explained that he “filed an application for

assistance from the York County Public Defender’s Office[,]” and repeatedly

contacted that office “requesting assistance for [his] PCRA,” but received no

response.    Id.   Six days after Appellant filed his pro se Rule 1925(b)

statement, the court appointed Attorney Tambourino of the York County

Public Defender’s Office to represent Appellant in this appeal.

      On March 2, 2015, the PCRA court filed a Pa.R.A.P. 1925(a) opinion,

concluding that Appellant’s petition was untimely, and that he failed to plead

and prove an exception to the PCRA’s one-year time-bar. See 42 Pa.C.S. §

9545(b)(1)(i)-(iii).   On April 20, 2015, Attorney Tambourino filed with this

Court a petition to withdraw as counsel and a “Turner/Finley Brief,” which

is styled as an Anders brief.      Therein, Attorney Tambourino reaches the

same conclusion as the PCRA court, i.e., that Appellant’s petition is untimely

and he cannot plead or prove the applicability of any timeliness exception.

Neither the PCRA court, nor Attorney Tambourino, address Appellant’s claim

that he was denied his right to PCRA counsel.

      However, we cannot overlook Appellant’s assertion in this regard.

Pennsylvania Rule of Criminal Procedure 904 directs 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

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collateral    relief.”      Pa.R.Crim.P.       904(C)   (emphasis   added).      In

Commonwealth v. Stossel, 17 A.3d 1286 (Pa. Super. 2011), we held “that

where an indigent, first-time PCRA petitioner was denied his right to counsel

– or failed to properly waive that right – this Court is required to raise this

error sua sponte and remand for the PCRA court to correct that mistake.”

Id. at 1290. This is true even when the petition is untimely on its face. See

Commonwealth v. Smith, 818 A.2d 494, 499 (Pa. 2003) (holding that “an

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 [of the PCRA] apply”).

       In the present case, the underlying PCRA petition is Appellant’s first.

Appellant clearly stated in his petition that he did not have counsel, he could

not afford an attorney, and he wanted counsel to represent him.               While

Attorney Marros was apparently still Appellant’s counsel-of-record when the

petition was filed, Attorney Marros had been privately retained. The record

does not indicate that the PCRA court made any determination regarding

whether Appellant could still afford private counsel at the time he filed his

pro se PCRA petition.4 Therefore, it is apparent that the PCRA court erred by
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4
  Additionally, Appellant alleged in his petition that Attorney Marros acted
ineffectively in representing him during the plea/sentencing proceedings,
which precluded Attorney Marros from representing Appellant in the post-
conviction proceedings. See Commonwealth v. Spotz, 18 A.3d 244, 329
n.52 (acknowledging “the general rule that counsel cannot argue his or her
own ineffectiveness”). The PCRA court also should have inquired into the
(Footnote Continued Next Page)


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not ascertaining if Appellant is indigent and entitled to a court-appointed

attorney.   The court’s subsequent appointment of Attorney Tambourino to

assist Appellant on appeal did not cure this error.

      Because of this procedural error by the PCRA court, we are constrained

to agree, in general, with Attorney Tambourino’s assertion that an appeal on

Appellant’s behalf would be frivolous at this time.      Moreover, in light of

Attorney Tambourino’s failure to acknowledge, or attempt to address,

Appellant’s assertion that he was denied his right to counsel before the PCRA

court, it would be beneficial for Appellant to be afforded new representation

on remand, if he is so entitled. Accordingly, we grant Attorney Tambourino’s

petition to withdraw. Additionally, we vacate the PCRA court’s order denying

Appellant’s petition and remand for the court to determine if Appellant is

indigent and, if so, to appoint him new counsel, who shall be permitted to

file an amended petition on Appellant’s behalf.

      Order vacated.        Case remanded for further proceedings.   Petition to

withdraw granted. Jurisdiction relinquished.
                       _______________________
(Footnote Continued)

status of Attorney Marros’ representation of Appellant, or appointed
Appellant new counsel, when Attorney Marros failed to take any action on
Appellant’s behalf after being served with Appellant’s pro se petition. See
Commonwealth v. Willis, 29 A.3d 393, 399 (Pa. Super. 2011) (noting
“that the PCRA court is also at fault for denying Appellant his right to
counsel” where “the court failed to reprimand Attorney Elgart, or appoint
new counsel, when it became clear that Attorney Elgart was not advocating
on Appellant’s behalf”).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2015




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