J-S14035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

BENJAMIN ORTEGA-VIDOT,

                        Appellant                   No. 783 MDA 2015


                 Appeal from the PCRA Order April 8, 2015
               In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0002747-2014

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                 FILED FEBRUARY 04, 2016

     Appellant Benjamin Ortega-Vidot appeals from the April 8, 2015, order

entered in the Court of Common Pleas of Berks County, which purported to

deny Appellant relief under the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546.      Finding the lower court should have treated

Appellant’s initial pro se pleading as a timely filed post-sentence motion

under Pennsylvania Rule of Criminal Procedure 720, rather than as a petition

filed under the auspices of the PCRA, we vacate the lower court’s April 8,

2015, order and remand for further proceedings.

     The relevant facts and procedural history are as follows:           On

September 12, 2014, Appellant, who was represented by counsel, entered a

guilty plea to the single charge of persons not to possess firearms, 18

Pa.C.S.A. § 6105(a)(1), and on that same date, the lower court sentenced

Appellant to five years to ten years in prison.    At the conclusion of the

*Former Justice specially assigned to the Superior Court.
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hearing, the lower court provided Appellant with his post-sentence and

appellate rights, and permitted guilty plea counsel to withdraw his

representation. N.T. 9/12/14 at 19-20.

       Seven days later, on September 19, 2014, Appellant filed a pro se

motion entitled “Motion Challenging the Legality of the Sentence,”1 wherein

he presented issues primarily concerning the voluntariness of his guilty plea.

The lower court treated the motion as one filed under the auspices of the

PCRA and, accordingly, appointed new counsel to represent Appellant.

Lower Court Order, filed 10/2/14, at 1.          On November 15, 2014, counsel

filed a request for an extension of time in which to file an amended PCRA

petition, and the lower court granted the request. Thereafter, on or about

December 2, 2014, Appellant filed two pro se motions entitled “Motion to

Suppress Evidence,” and “Motion to Suppress Incriminating Statements,”

and on December 11, 2014, counsel filed a petition to withdraw his

representation, as well as a Turner/Finley2 no-merit letter.

       On December 29, 2014, the lower court entered an order indicating its

intent to dismiss the matter without a hearing. Appellant filed several pro se
____________________________________________


1
  Although this motion was time-stamped on September 22, 2014, ten days
after sentencing, the record contains an envelope bearing the post-mark of
September 19, 2014. Accordingly, under the prisoner mailbox rule, we
deem the motion to have been filed on September 19, 2014.             See
Commonwealth v. Chambers, 35 A.3d 34 (Pa.Super. 2011).
2
  Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).



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responses, and by order entered on April 9, 2015, the lower court purported

to dismiss Appellant’s PCRA petition as meritless.         On May 4, 2015,

Appellant filed a pro se notice of appeal, and by order entered on May 5,

2015, the lower court noted it granted counsel’s petition to withdraw his

representation. All Pa.R.A.P. 1925 requirements have been met. 3

       With this procedural posture in mind, we sua sponte determine

whether this appeal is properly before us. See generally Commonwealth

v. Harris, 972 A.2d 1196 (Pa.Super. 2009) (holding issues concerning

jurisdiction may be raised sua sponte). For the reasons discussed infra, we

conclude that it is necessary to vacate the lower court’s April 8, 2015, order,

in which the court purported to deny Appellant relief under the PCRA, and

remand for further proceedings. Specifically, we find the lower court should

have treated Appellant’s September 19, 2014, pro se motion as a timely

filed post-sentence motion rather than as a petition filed under the auspices

of the PCRA.

____________________________________________


3
  On or about May 27, 2015, Appellant filed a pro se pleading entitled “Pro
Se Post Conviction Collateral Relief Act Petition.” To the extent this pleading
presented claims which are of the type contemplated for review under the
PCRA, we note the petition was prematurely filed. See Commonwealth v.
Kubis, 808 A.2d 196, 198 (Pa.Super. 2002) (“The PCRA provides petitioners
with a means of collateral review, but has no applicability until the judgment
of sentence becomes final.”).




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      Pennsylvania Rule of Criminal Procedure 720 provides, in relevant

part, that “a written post-sentence motion shall be filed no later than 10

days after imposition of sentence.” Pa.R.Crim.P. 720(A)(1). In the case sub

judice, Appellant filed his first pro se pleading on September 19, 2014, a

mere seven days after his judgment of sentence was imposed on September

12, 2014.    Additionally, in his post-sentence pleading, Appellant primarily

presented claims related to the voluntariness of his guilty plea, which are of

the   type   contemplated   for   post-sentence   review     under   Pa.R.Crim.P.

720(B)(1)(a)(i)   (indicating     optional   post-sentence     motions    include

challenges to the validity of a plea of guilty). Thus, since the PCRA does not

have any applicability until a judgment of sentence becomes final, see

Kubis, 808 A.2d at 198 n.4, and Appellant’s September 19, 2014, pro se

motion otherwise was timely filed and presented claims contemplated by

Pa.R.Crim.P. 720, we conclude the lower court should have treated

Appellant’s pro se filing as a timely filed post-sentence motion.

      Therefore, in light of the foregoing, we find it necessary to vacate the

lower court’s April 8, 2015, order in which it purported to deny Appellant

relief under the PCRA and remand for proceedings consistent with this

decision. Upon remand, the lower court shall determine whether Appellant

is entitled to court-appointed counsel.

      Order Vacated; Remanded; Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/4/2016




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