J-S08015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    STEVEN M. LAIRD,

                             Appellant                 No. 2264 EDA 2018


               Appeal from the PCRA Order Entered July 10, 2018
                In the Court of Common Pleas of Chester County
                           Criminal Division at No(s):
                            CP-15-CR-0000145-2013
                            CP-15-CR-0000278-2013
                            CP-15-CR-0000958-2013
                            CP-15-CR-0004468-2012


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                           FILED APRIL 29, 2019

        Appellant, Steven M. Laird, appeals from the July 10, 2018 order

denying his pro se “Motion for Modification of Sentences Nunc Pro Tunc,”

which, for the reasons stated infra, should have been treated as a petition

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

Additionally, Appellant’s counsel, C. Curtis Norcini, Esq., has filed a petition to

withdraw, along with an Anders1 brief.          After careful review, we deny

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1Anders v. California, 386 U.S. 738 (1967). We note that a ‘no-merit’ letter
under Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
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counsel’s petition to withdraw, vacate the PCRA court’s order denying relief,

and remand for further proceedings.

       Briefly, Appellant committed a series of burglaries that resulted in

criminal charges being filed against him in four separate cases. On September

20, 2013, Appellant entered negotiated guilty pleas to various offenses in each

of those cases, and he was sentenced that same day to an aggregate term of

8 to 16 years’ incarceration. Appellant was represented by Steven E. Jarmon,

Esq., during his plea and sentencing proceedings. He did not file an appeal

from his judgment of sentence.

       Nearly five years later, Appellant filed a pro se document entitled

“Motion for Modification of Sentences Nunc Pro Tunc.” Therein, he challenged

the legality of his sentence, claiming that certain of his offenses should have

merged for sentencing purposes. See Commonwealth v. Robinson, 931

A.2d 15, 24 (Pa. Super. 2007) (declaring that a claim that convictions should

have merged for sentencing purposes constitutes a “nonwaivable challenge to

the legality of sentence”) (citation omitted). The court did not appoint counsel

or indicate that Attorney Jarmon was still representing Appellant. On July 10,

2018, the PCRA court issued an order denying Appellant’s motion.
____________________________________________


Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), is the
appropriate filing when counsel seeks to withdraw on appeal from the denial
of PCRA relief. However, we may accept an Anders brief in lieu of a
Turner/Finley no-merit letter. See Commonwealth v. Widgins, 29 A.3d
816, 817 n.2 (Pa. Super. 2011) (“Because an Anders brief provides greater
protection to a defendant, this Court may accept an Anders brief in lieu of a
Turner/Finley letter.”) (citation omitted).


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      Appellant filed a timely, pro se notice of appeal on July 30, 2018. On

August 8, 2018, Attorney Jarmon filed with this Court a petition to withdraw

as counsel, although he acknowledged in the petition that he had not been

“reappointed to represent [A]ppellant after the conclusion of his cases in

2013.” Petition to Withdraw, 8/8/18, at 2. On September 7, 2018, this Court

issued a per curiam order granting Attorney Jarmon’s petition to withdraw,

and directing the trial court to determine whether Appellant was eligible for

court-appointed counsel and, if so, to appoint him a new attorney. Thereafter,

the court issued an order appointing Attorney Norcini to represent Appellant

in the present appeal.    On December 31, 2018, Attorney Norcini filed his

petition to withdraw and an Anders brief.

      Before we may address Attorney Norcini’s petition to withdraw, we must

determine whether we have jurisdiction to consider Appellant’s appeal.

Problematically, Appellant filed a single notice of appeal listing four separate

docket numbers. This Court recently explained:

      Pennsylvania Rule of Appellate Procedure 341(a) directs that “an
      appeal may be taken as of right from any final order of a
      government unit or trial court.” Pa.R.A.P. 341(a). “The Official
      Note to Rule 341 was amended in 2013 to provide clarification
      regarding     proper    compliance   with    Rule    341(a)....”
      Commonwealth v. Walker, 185 A.3d 969, 976 (Pa. 2018). The
      Official Note now reads:

         Where ... one or more orders resolves issues arising on
         more than one docket or relating to more than one
         judgment, separate notices of appeals must be filed.
         Commonwealth v. C.M.K., 932 A.2d 111, 113 & n.3 (Pa.
         Super. 2007) (quashing appeal taken by single notice of
         appeal from order on remand for consideration under
         Pa.R.Crim.P. 607 of two persons’ judgments of sentence).

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      Pa.R.A.P. 341, Official Note.

      In Walker, our Supreme Court construed the above-language as
      constituting “a bright-line mandatory instruction to practitioners
      to file separate notices of appeal.” Walker, 185 A.3d at 976-77.
      Therefore, the Walker Court held that “the proper practice under
      Rule 341(a) is to file separate appeals from an order that resolves
      issues arising on more than one docket. The failure to do so
      requires the appellate court to quash the appeal.” Id. at 977.
      However, the Court tempered its holding by making it prospective
      only, recognizing that “[t]he amendment to the Official Note to
      Rule 341 was contrary to decades of case law from this Court and
      the intermediate appellate courts that, while disapproving of the
      practice of failing to file multiple appeals, seldom quashed appeals
      as a result.” Id. Accordingly, the Walker Court directed that “in
      future cases Rule 341 will, in accordance with its Official Note,
      require that when a single order resolves issues arising on more
      than one lower court docket, separate notices of appeal must be
      filed. The failure to do so will result in quashal of the appeal.” Id.
      (emphasis added).

Commonwealth v. Williams, --- A.3d ---, 2019 PA Super 81, *2 (Mar. 20,

2019). Walker was filed on June 1, 2018, and Appellant’s pro se notice of

appeal listing four separate docket numbers was filed on July 30, 2018. Thus,

Walker applies and indicates that we should quash based on Appellant’s non-

compliant notice of appeal.

      However, we decline to do so under the specific facts of this case. The

trial court clearly erred by not treating Appellant’s “Motion for Modification of

Sentences Nunc Pro Tunc” as his first PCRA petition and appointing him

counsel. In that motion, Appellant challenged the legality of his sentence,

which is cognizable under the PCRA. See 42 Pa.C.S. § 9543(a)(2). Thus, the

PCRA is the only avenue of review for Appellant’s claim. Commonwealth v.

Descardes, 136 A.3d 493, 499 (Pa. 2016).           Additionally, because this is



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Appellant’s first PCRA petition, he was entitled to representation of counsel

before the PCRA court. See Pa.R.Crim.P. 904(B). This is true even though

Appellant’s petition is facially untimely. See Commonwealth v. Kutnyak,

781 A.2d 1259, 1262 (Pa. Super. 2001) (holding that an appellant is entitled

to representation of counsel on his first PCRA petition, “despite any apparent

untimeliness of the petition or the apparent non-cognizability of the claims

presented”).

       The trial court, however, failed to appoint counsel for Appellant.2 While

Attorney Norcini was appointed to represent Appellant while the present

appeal was pending, that act did not correct the trial court’s error of not

appointing counsel below. Had the court properly done so, we presume that

counsel would have filed a notice of appeal that complied with Rule 341 and

Walker.     See Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)

(stating that we presume counsel acts effectively).      Thus, in light of this

record, we conclude that a breakdown in the operations of the court occurred,

which permits us to overlook the errors in Appellant’s pro se notice of appeal.

See Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super. 2007)

(recognizing this Court’s power to grant relief in the case of a fraud or

breakdown in the processes of the court).

       Next, we would typically address whether Attorney Norcini has complied

with the Turner/Finley requirements for withdrawal. However, we decline
____________________________________________


2 The court also erred by not issuing a Pa.R.Crim.P. 907 notice of its intent to
dismiss Appellant’s petition without a hearing.

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to do so. Our Supreme Court has declared that “[t]he denial of PCRA relief

cannot stand unless the petitioner was afforded the assistance of counsel.”

Commonwealth v. Albrecht, 720 A.2d 693, 699 (Pa. 1999). Additionally,

we have 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.” Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa.

Super. 2011).    Here, Appellant was denied his right to counsel during the

litigation of his first PCRA petition before the PCRA court; again, the fact that

Attorney Norcini was appointed to represent Appellant during the pendency of

this appeal does not correct that error.    Consequently, we are required to

vacate the PCRA court’s order, deny Attorney Norcini’s petition to withdraw,

and remand for counsel to assess Appellant’s petition and either file an

amended petition on his behalf, or seek to withdraw before the PCRA court.

      Order vacated. Petition to withdraw denied. Case remanded for further

proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/19




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