J-S36018-15, J-S36019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MELISSA A. SARVEY

                            Appellant                No. 1529 WDA 2014


                 Appeal from the PCRA Order August 20, 2014
               In the Court of Common Pleas of Jefferson County
              Criminal Division at No(s): CP-33-CR-0000014-2012


COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MELISSA A. CIELESKI

                            Appellant                No. 1530 WDA 2014


                 Appeal from the PCRA Order August 20, 2014
               In the Court of Common Pleas of Jefferson County
              Criminal Division at No(s): CP-33-CR-0000605-2007


BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.:                                 FILED JULY 8, 2015

        Appellant Melissa A. Sarvey appeals from the order of the Jefferson

County Court of Common Pleas dismissing her petition filed pursuant to the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq., which she

entitled a “motion to reinstate defendant’s rights under the [PCRA] nunc pro

tunc” (“reinstatement PCRA petition”). We reverse and remand to the PCRA

court for proceedings consistent with this memorandum.

        While incarcerated at the Jefferson County Correctional Facility,

Appellant attempted to deliver prescription drugs to another inmate.

Commonwealth v. Sarvey, 968 WDA 2013, at 2 (Pa.Super. filed Feb. 21,

2013) (unpublished memorandum). A jury found Appellant guilty at CP-33-

CR-0000014-2012 of two counts each of possession of a controlled

substance with intent to deliver (“PWID”),1 possession of a controlled

substance by an inmate,2 selling, giving, transmitting or furnishing a

controlled substance to a confined person,3 and criminal attempt.4 Id.

        On May 16, 2012, the trial court imposed consecutive sentences of 1-3

years’    incarceration    for   one   PWID      conviction   and   1½   to   3   years’

incarceration for the second PWID conviction, 1½ to 3 years’ incarceration

for each possession of a controlled substance by an inmate conviction, and

2-5 years’ incarceration for each furnishing of a controlled substance to a

____________________________________________


1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S. § 5123(a.2).
3
    18 Pa.C.S. § 5123(a).
4
    18 Pa.C.S. § 901.



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confined person conviction. The court did not impose a sentence for the

criminal attempt convictions. Sarvey, 968 WDA 2013, at 4. At the time of

the offenses, Appellant was serving a term of probation at CP-33-CR-

0000605-2007.        As a result of Appellant’s conviction, the court further

revoked probation and imposed a sentence of 1-2 years’ imprisonment at

each of two counts. N.T., 5/16/2012, at 14-15. This was an aggregate term

of imprisonment of 11½ to 26 years’ imprisonment. Id. at 15.5 This Court

affirmed on February 21, 2013. Id. Appellant filed a petition for allowance

of appeal, which the Supreme Court of Pennsylvania denied on September

17, 2013.

       On January 8, 2014, Appellant filed a pro se PCRA petition at both CP-

33-CR-0000014-2012 and CP-33-CR-0000605-2007.              The PCRA court

appointed counsel, who filed a no-merit letter on February 14, 2014.     The

trial court issued a notice of intent to dismiss the PCRA petition without a

hearing pursuant to Pennsylvania Rule of Criminal Procedure 907, which was

dated February 20, 2014 and docketed on February 24, 2014. This notice of

intent stated:

          On the basis of the allegations asserted in Attorney George
          N. Daghir’s No-Merit Letter, filed February 14, 2014, you,
          the Defendant/Petitioner, are hereby notified that your
____________________________________________


5
  The trial court also revoked probation in additional cases that Appellant
does not challenge on appeal. The court imposed 5 years’ probation on
these cases consecutive to Appellant’s aggregate term of imprisonment but
concurrent with one another. N.T., 5/16/2012, at 15.



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        Post Conviction Pleadings filed January 8, 2014, shall be
        dismissed twenty (20) days from the date of this
        Notice/Order.    You should be aware, that the Order
        dismissing these filings will be a Final Order. Accordingly,
        after that Order is filed, you have a right to appeal to the
        Pennsylvania Superior Court by filing a Notice of Appeal
        with the Jefferson County Clerk of Courts within thirty (30)
        days after the entry of the Order dismissing your Post
        Conviction Pleadings and other filings. See PA R.CR.P. No.
        907.

Order, 2/24/2014.   A separate order, also dated February 20, 2014 and

docketed on February 24, 2014, stated:

        AND NOW, this 20th day of February, 2014, upon
        consideration of Petition to Withdraw as Counsel (No-Merit)
        filed by Specially Appointed Public Defender, George N.
        Daghir, Esq., and after this Court’s own independent
        review, it is hereby determined that Defendant/Petitioner
        Melissa Sarvey’s issues raised in her previously filed Post-
        Conviction Pleadings are meritless.

        It is further ordered that George N. Daghir, Esq.’s, Petition
        to withdraw as Counsel for Defendant/Petitioner Melissa
        Sarvey is hereby granted. Defendant/Petitioner Melissa
        Sarvey shall be served with a copy of the within Order.

        Melissa Sarvey is hereby notified that she has the right to
        proceed with her Post-Conviction Pleadings Pro Se, or, with
        the assistance of privately retained counsel. Within the
        next twenty (20) days, Melissa Sarvey will notify the Court
        whether she wishes to proceed on her Post-Conviction
        Pleadings.    Failure to inform the Court that the
        Defendant/Petitioner, Melissa Sarvey, wishes to proceed
        on her Post-Conviction Pleadings will result in them being
        dismissed.

Order, 2/24/2014.




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        In response to these orders, Appellant filed a letter with the trial court,

which was dated March 1, 2014 and docketed March 5, 2014.               The letter

provided:

           I am writing in reference to the above listed docket
           numbers regarding an Order of Court by the Honorable
           President Judge John H. Foradora, dated [February] 20,
           2014.

           Please accept this letter as my interest to continue with my
           Post Conviction Pleadings Pro Se. I will retain counsel to
           proceed on my behalf in the matter of the Post Conviction
           Pleadings.

           Thank you for your time and consideration in this matter.

Letter from Melissa Sarvey to “To Whom It May Concern” dated March 1,

2014.

        In an order dated March 19, 2014 and docketed March 24, 2014, the

PCRA court dismissed the PCRA petition. The order provided:

           AND NOW, this 19th day of March, 2014, upon
           consideration of the Petition to Dismiss PCRA6 and
           subsequent letter from the defendant wherein she requests
           to continue with this PCRA filed on March 5, 2014, IT IS
           HEREBY ORDERED AND DECREED that the defendant’s
           Post    Conviction   Pleadings   and   the    defendant’s
           aforementioned subsequent letter are DISMISSED.




____________________________________________


6
 The certified record does not include a “petition to dismiss PCRA,” and the
docket does not reflect the filing of such a petition.



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Order, 3/24/2014.        The docket states this order was served on Appellant

“First Class.”     Commonwealth v. Sarvey, No. CP-33-CR-0000014-2012,

Docket at 15 of 22 (Pa.C.P. Jefferson Mar. 24, 2014).

        On     August   18,   2014,     Appellant’s   retained   counsel   filed   the

reinstatement PCRA petition at both docket numbers seeking to reinstate

Appellants’ PCRA rights nunc pro tunc.7 In an order dated August 20, 2014

and docketed August 22, 2014, the PCRA court denied this petition.                 On

September 17, 2014, Appellant filed two timely notices of appeal at 1529

WDA 2014 and 1530 WDA 2014. We consolidate these appeals pursuant to

Pennsylvania Rule of Appellate Procedure Pa.R.A.P. 513.              Both Appellant

and the PCRA court complied with Pennsylvania Rule of Appellate Procedure

1925.

        Appellant raises the following issues on appeal:

             ISSUE I: Did the lower court err in failing to reinstate
             [Appellant’s] PCRA rights Nunc Pro Tunc when [Appellant]
             notified the Court within 20 days that she intended to
             proceed with private counsel?

             ISSUE II: Did the lower court err in failing to reinstate
             [Appellant’s] PCRA rights Nunc Pro Tunc when [Appellant]
             was not properly notified that her PCRA petition was
____________________________________________


7
  On July 18, 2014, Appellant filed a second pro se PCRA petition at docket
CP-33-CR-0000014-2012 only. On August 8, 2014, the PCRA court issued a
notice of intention to dismiss the second PCRA petition and, on September 4,
2014, it dismissed the petition. As with the order dismissing Appellant’s first
PCRA, the order dismissing Appellant’s second PCRA did not include a
recitation of appellate rights and was served via first class mail, not certified
mail.



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          dismissed because she was not served by certified mail, as
          Required by Pa. R.Crim.P. 907?

          ISSUE III: Should [Appellant’s] PCRA rights be reinstated
          due to a breakdown in the Court system?

Appellant’s Brief at 7. We will address Appellant’s issues together, as they

are interrelated.     Appellant maintains the PCRA court erred in failing to

reinstate Appellant’s PCRA rights nunc pro tunc. We agree.

       Appellant’s “motion to reinstate defendant’s rights under the [PCRA]

nunc pro tunc” should be treated as a PCRA petition. See Commonwealth

v. Robinson, 837 A.2d 1157 (Pa.2003) (treating PCRA petition seeking

reinstatement of PCRA appeal rights as a PCRA petition); Commonwealth

v. Weimer, 756 A.2d 684, 686 (Pa.Super.2000) (treating appellant’s

motions, including motion to reinstate appeal rights, as PCRA petition). Our

standard of review from the denial of post-conviction relief “is limited to

examining whether the court’s determination is supported by the evidence of

record and whether it is free of legal error.” Commonwealth v. Ousley, 21

A.3d 1238, 1242 (Pa.Super.2011) (citing Commonwealth v. Morales, 701

A.2d 516, 520 (Pa.1997)).8

____________________________________________


8
   Appellant timely filed her reinstatement PCRA petition.         Appellant’s
judgment became final December 16, 2013, 90 days after the Supreme
Court of Pennsylvania denied her petition for allowance of appeal on
September 17, 2013. Appellant filed the reinstatement PCRA petition on
August 18, 2014, before the one-year PCRA time bar expired on December
13, 2014. 42 Pa.C.S. § 9545(b)(1) (PCRA petition, “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final”).



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        Pennsylvania Rule of Criminal Procedure 907 provides:

          (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.

                                       ...

          (4) When the petition is dismissed without a hearing, the
          judge promptly shall issue an order to that effect and shall
          advise the defendant by certified mail, return receipt
          requested, of the right to appeal from the final order
          disposing of the petition and of the time limits within which
          the appeal must be filed. The order shall be filed and
          served as provided in Rule 114.

                                       ...

Pa.R.Crim.P. 907.

        Here, the trial court provided notice of its intent to dismiss the PCRA

petition, notifying Appellant her PCRA petition would be dismissed in 20

days.    Notice, 2/24/2014.    That same day, the PCRA court granted PCRA

counsel’s petition to withdraw and ordered Appellant “to notify the Court

whether she wishes to proceed on her Post-Conviction Pleadings” within 20




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days.9 On March 5, 2014, in response to these orders, Appellant informed

the court she wished to “continue with my Post Conviction Pleadings Pro Se”

and she would “retain counsel to proceed on my behalf.”

       These orders misstated the action required by Appellant. The notice of

intent informed Appellant the PCRA court would dismiss the PCRA in 20

days. The order granting counsel’s motion to withdraw, however, required

Appellant to inform the PCRA court whether she wished to continue with the

appeal and stated that if Appellant failed to inform the court whether she

wished to continue, the PCRA petition would be dismissed.          Appellant

complied with the court order by informing the court, within 20 days, that

she wished to continue the proceedings and that she would retain counsel.

Nineteen days after Appellant’s letter was docketed, the PCRA court

dismissed the PCRA petition, without further communication with Appellant.

       Further, the order dismissing Appellant’s PCRA petition did not inform

Appellant of her appellate rights and was not served via certified mail.

Pursuant to Rule 907, where a PCRA court dismisses a petition without a
____________________________________________


9
    Commonwealth v. Turner, 544 A.2d 927 (Pa.1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1987) provide a
mechanism for post-conviction counsel to withdraw. Commonwealth v.
Rykard, 55 A.3d 1177, 1184 (Pa.Super.2012). Competent PCRA counsel
must conduct an independent review of the record before a PCRA or
appellate court can authorize counsel’s withdrawal. Id. Further, “counsel is
required to contemporaneously serve upon his client his no-merit letter and
application to withdraw along with a statement that if the court granted
counsel’s withdrawal request, the client may proceed pro se or with a
privately retained attorney.” Id.



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hearing, the judge “shall issue an order to that effect and shall advise the

defendant by certified mail, return receipt requested, of the right to appeal

from the final order disposing of the petition and of the time limits within

which the appeal must be filed.”            Although the PCRA court recited

Appellant’s appeal rights in its notice of intent to dismiss, it failed to include

notice of the appeal rights in the final order dismissing the petition. Further,

the docket states that the court served the order dismissing the PCRA

petition on Appellant by “First Class,” not by the method required by Rule

907, “certified mail, return receipt requested.”

       Because the February 24, 2014 orders misstated what action was

required from Appellant, and because the order dismissing the PCRA petition

did not include a recitation of Appellant’s appeal rights and was not properly

served on Appellant, we find the PCRA court erred in denying the

reinstatement PCRA petition.      See Commonwealth v. Panto, 913 A.2d

292,   297   (Pa.Super.2006)    (vacating     judgment   of   sentence   following

summary appeal where court administrator failed to send appellant notice of

court order of continuance and court dismissed appeal because appellant

failed to appear); Pa.R.Crim.P. 114(B)(2) (“The clerk of courts shall serve

the order or court notice, unless the president judge has promulgated a local

rule designating service to be by the court or court administrator.”);

Pa.R.A.P. 108 (“in computing any period of time under these rules involving

the date of entry of an order by a court or other government unit, the day of




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entry shall be the day the clerk of the court or the office of the government

unit mails or delivers copies of the order to the parties, . . .”).

      We reverse the order denying Appellant’s “motion for reinstatement of

appeal rights nunc pro tunc.” The PCRA court is directed to order Appellant’s

counsel to file an amended PCRA petition within thirty (30) days of the date

of this Memorandum.

      Order reversed. Case remanded for proceedings consistent with this

Memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2015




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