J-S83011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 WALTER T. HODGES, II                    :
                                         :
                   Appellant             :   No. 417 WDA 2018

              Appeal from the PCRA Order February 15, 2018
          In the Court of Common Pleas of Westmoreland County
           Criminal Division at No(s): CP-65-CR-0004883-2001
                                       CP-65-CR-0004884-2001
                                       CP-65-CR-0004885-2001


BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.

JUDGMENT ORDER BY PANELLA, J.:                        FILED JUNE 28, 2019

      Walter T. Hodges, II, appeals pro se from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541–9546. Hodges claims, inter alia, that the hearing on the revocation

of his probation and resentencing was a sham proceeding conducted to

conceal an illegal detainer, and his sentence was unlawful.     PCRA counsel

mistakenly concluded that Appellant’s petition was untimely filed, and did not

review the substantive claims. We agree with the Commonwealth that under

controlling authority, Appellant would be considered uncounseled, and the

matter should be remanded for the appointment of new PCRA counsel. We

therefore vacate and remand.
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       Appellant’s counsel erroneously concluded that his PCRA petition was

untimely.     The PCRA court dismissed the petition and granted counsel

permission to withdraw. See Order, 2/15/18. It reasoned that even if the

petition was timely as to certain claims, the substantive issues it raised were

frivolous.

       The Commonwealth maintains that where counsel is granted permission

to withdraw solely on his mistaken conclusion that the PCRA petition was

untimely filed without reviewing the substantive claims, under our case law

Appellant is considered uncounseled, and the matter should be remanded for

the appointment of new PCRA counsel. See Commonwealth’s Brief, at 3.

       We agree. See Commonwealth v. Karanicolas, 836 A.2d 940, 947-

48 (Pa. Super. 2003) (holding appellant effectively deprived of right to counsel

where counsel’s petition for leave to withdraw was based solely on mistaken

conclusion that PCRA petition was untimely filed, counsel failed to explain why

remainder of appellant’s issues lacked merit, and counsel’s cursory analysis

was tainted by misconception that appellant’s petition was untimely).

Accordingly, we remand for the appointment of new counsel. After review,

counsel may seek leave to file an amended petition, file an advocate’s brief or

file a proper Turner/Finley no merit letter with the PCRA court.1



____________________________________________


1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


                                           -2-
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      Order vacated. Case remanded for further proceedings consistent with

this order. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2019




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