J-S45013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    DONALD ANTHONY SINGLETARY                  :
                                               :
                      Appellant                :      No. 2805 EDA 2016

                   Appeal from the PCRA Order July 20, 2016
                In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0001630-2013,
                            CP-15-CR-0001778-2013

BEFORE:      GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.:                           FILED AUGUST 17, 2017

        Appellant, Donald Anthony Singletary, appeals from the order of the

Chester County Court of Common Pleas, which dismissed as untimely his

first petition brought pursuant to the Post Conviction Relief Act (“PCRA”).1

We vacate, remand, and grant counsel’s petition to withdraw.

        The relevant facts and procedural history of this case are as follows.

Appellant sold cocaine to a confidential informant on April 4, 2013, April 13,

2013, and April 22, 2013. As a result, police arrested Appellant on April 26,

2013.     That same date, police executed a search warrant at Appellant’s

home and recovered, inter alia, 7.95 grams of cocaine and four handguns.

____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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Appellant entered an open guilty plea on January 10, 2014, to one count of

possession with intent to deliver (“PWID”) at docket no. 1630-2013, and to

three counts of PWID at docket no. 1778-2013.           The court sentenced

Appellant on June 23, 2014, to an aggregate term of eight (8) to sixteen

(16) years’ imprisonment.     Appellant did not seek direct review, and his

judgment of sentence became final on July 23, 2014.

      Appellant filed on November 18, 2015, a pro se “Motion to Modify and

Reduce Sentence Nunc Pro Tunc,” which the court correctly treated as

Appellant’s first PCRA petition.   The PCRA court on December 17, 2015,

permitted Appellant to proceed in forma pauperis and appointed counsel.

On May 9, 2016, Appellant filed an amended, counseled PCRA petition,

which requested an evidentiary hearing. In the amended petition, Appellant

claimed that: plea counsel was ineffective for failing to file a post-sentence

motion and a direct appeal; and Appellant received an illegal mandatory

minimum sentence under Alleyne v. United States, ___ U.S. ___, 133

S.Ct. 2151, 186 L.Ed.2d 314 (2013). Notably, the amended petition did not

address the timeliness of Appellant’s PCRA petition. Moreover, counsel did

not file a supporting brief, cite any law in support of the issues raised, or

provide signed certifications of witnesses or attach documents material to

the proffered testimony. See 42 Pa.C.S.A. § 9545(d)(1) (stating “Where a

petitioner requests an evidentiary hearing, the petition shall include a signed

certification as to each intended witness stating the witness’s name,


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address, date of birth and substance of testimony and shall include any

documents material to that witness’s testimony”). The Commonwealth filed

its answer on June 13, 2016.           On June 16, 2016, the PCRA court issued

notice of its intent to dismiss Appellant’s petition pursuant to Pa.R.Crim.P.

907.     Counsel received the Rule 907 notice but did not respond on

Appellant’s behalf. The PCRA court denied relief on July 20, 2016.

       On August 26, 2016, Appellant filed a pro se notice of appeal.2 That

same date, Appellant filed pro se petitions for reconsideration and/or writ of

habeas corpus, to continue in forma pauperis, and for appointment of new

PCRA counsel.       In his petition for reconsideration and/or writ of habeas

corpus, Appellant alleged PCRA counsel deprived Appellant of his right to

effective, adequate representation. According to Appellant, counsel did not

provide Appellant with a copy of the amended PCRA petition and the

Commonwealth’s answer. Appellant asked the PCRA court to direct counsel

to serve Appellant with a copy of these documents and to issue another Rule

907 notice to Appellant. The PCRA court forwarded the notice of appeal and

the petitions to counsel on August 29, 2016. On August 30, 2016, the PCRA

court granted Appellant’s request to continue in forma pauperis and denied
____________________________________________


2
  Appellant’s pro se notice of appeal is dated August 19, 2016. Under the
prisoner mailbox rule, we deem the appeal timely. See Commonwealth v.
Chambers, 35 A.3d 34 (Pa.Super. 2011), appeal denied, 616 Pa. 625, 46
A.3d 715 (2012) (explaining prisoner mailbox rule provides that document is
considered filed on date pro se prisoner delivers it to prison authorities for
mailing).



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his remaining petitions. That same date, the PCRA court ordered Appellant

to file a concise statement of errors complained of on appeal per Pa.R.A.P.

1925(b).    The PCRA court sent the order to counsel, who did not file a

concise statement on Appellant’s behalf.

      On March 16, 2017, counsel filed with this Court an appellate brief and

concluded Appellant’s PCRA issues were meritless. Appellant responded pro

se on April 7, 2017.        This Court entered a per curiam order on April 21,

2017, directing counsel to file a petition to withdraw from representation

pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988)

and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

Counsel complied on May 5, 2017, and sent a letter to Appellant on June 1,

2017, advising of his right to proceed pro se or with privately retained

counsel.

      Counsel raises the following issues on Appellant’s behalf:

           WHETHER THE [PCRA] COURT ERRED IN DISMISSING
           [APPELLANT’S] POST-CONVICTION RELIEF ACT (PCRA)
           PETITION WHEN IT WAS UNTIMELY FILED AND NO
           EXCEPTION APPLIED?

           WHETHER [APPELLANT] IS PRECLUDED FROM RAISING AN
           ALLEYNE   CHALLENGE     RETROACTIVELY   IN   THE
           PROCEDURAL POSTURE OF A PCRA CLAIM?

(Appellant’s Brief at 3).

      As a preliminary matter, Pennsylvania Rule of Criminal Procedure 904

provides, in pertinent part:

           Rule 904. Entry of Appearance and Appointment of

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        Counsel; In Forma Pauperis

                                 *    *    *

           (C) Except as provided in paragraph (H), 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
        collateral relief.

                                 *    *    *

Pa.R.Crim.P. 904(C).   Importantly, “[a]n indigent petitioner is entitled to

appointment of counsel on his first PCRA petition, even where the petition

appears untimely on its face.” Commonwealth v. Perez, 799 A.2d 848,

851 (Pa.Super. 2002) (emphasis added).         “In such cases, counsel is

appointed principally to determine whether the petition is indeed untimely,

and if so, whether any exception to the timeliness requirements…applies.”

Id. at 852.   See also Pa.R.Crim.P. 904(C) (stating when unrepresented

defendant shows he is unable to afford or procure counsel, court shall

appoint counsel to represent defendant on first PCRA petition). The right to

counsel on an indigent petitioner’s first PCRA petition is not limited to the

mere naming of an attorney.    Perez, supra. To have any meaning, Rule

904 requires appointed counsel to provide meaningful representation. Id.

        [W]hen appointed counsel fails to amend an inarticulately
        drafted pro se [post-conviction] petition, or fails
        otherwise to participate meaningfully, this [C]ourt will
        conclude that the proceedings were, for all practical
        purposes,    uncounseled    and  in  violation  of    the
        representation requirement.


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Id. at 852 (emphasis added).        “[T]o provide meaningful representation,

appointed counsel must at least address the timeliness of a PCRA petition

and determine whether the petition fits any exception to the PCRA’s

timeliness provision, where the subject petition is untimely on its face.” Id.

at 849.     Counsel’s failure to discuss the timeliness issue renders the

representation virtually meaningless and effectively denies an appellant the

right to assistance of counsel.     Id. at 853.     Where the record fails to

demonstrate “meaningful participation by counsel appointed to represent an

indigent petitioner filing his first petition, [this Court] will remand for

appointment of new counsel.”       Id. at 582, (quoting Commonwealth v.

Hampton, 718 A.2d 1250, 1254 (Pa.Super. 1998)). Additionally, “where an

indigent, first-time PCRA petitioner was denied his right to counsel…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). Moreover, this Court has stated:

          This right to representation exists throughout the post-
          conviction proceedings, including any appeal from
          disposition of the petition for post-conviction relief. It is
          equally clear that once counsel has entered an appearance
          on [an appellant’s] behalf [she] is obligated to continue
          representation until the case is concluded or [she] is
          granted leave by the court to withdraw [her] appearance.

Commonwealth v. Willis, 29 A.3d 393, 397 (Pa.Super. 2011).                 See

Commonwealth        v.   Brown,    836   A.2d   997,   999   (Pa.Super.   2003)

(remanding for appointment of counsel where petitioner was represented by


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court-appointed attorney before PCRA court but was effectively abandoned

by counsel on appeal).

     Instantly, the court sentenced Appellant on June 23, 2014. Appellant’s

judgment of sentence became final on July 23, 2014, upon expiration of the

time to file a direct appeal. See Pa.R.A.P. 903(a). Appellant filed a pro se

PCRA petition on November 18, 2015, which was about one year and four

months after his judgment of sentence became final. Therefore, Appellant’s

petition was facially untimely. See 42 Pa.C.S.A. § 9545(b)(1) (stating PCRA

petition, including second or subsequent petition, shall be filed within one

year of date underlying judgment of sentence becomes final).

     On December 17, 2015, the PCRA court permitted Appellant to

proceed in forma pauperis and appointed counsel, who subsequently filed an

amended PCRA petition on May 9, 2016. Significantly, the amended PCRA

petition failed to address the timeliness of Appellant’s November 18, 2015

petition and the application of any of the statutory timeliness exceptions at

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).    The amended petition also failed to

comply with 42 Pa.C.S.A. § 9545(d)(1). The PCRA court sent counsel Rule

907 notice on June 16, 2016.     Counsel did not respond to the Rule 907

notice and/or correct these defects.   Thus, the record fails to demonstrate

counsel’s meaningful participation. See Perez, supra.

     Moreover, counsel had a continuing obligation to represent Appellant

until the conclusion of this case. See Willis, supra. Notably, counsel did


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not file an appeal on Appellant’s behalf, which prompted Appellant to file a

pro se notice of appeal on August 19, 2016. The PCRA court on August 30,

2016, ordered a Rule 1925(b) statement and sent the order to counsel; yet

she failed to file a Rule 1925(b) statement on Appellant’s behalf. The record

reveals counsel effectively abandoned Appellant on appeal. Therefore, the

best resolution of this case is to vacate and remand for the PCRA court to

appoint new counsel to assist Appellant in his first PCRA petition.      See

Brown, supra.      Given the disposition of this case and our directive to

appoint new counsel on remand, we grant current counsel leave to

withdraw.

      Order vacated; case remanded for further proceedings.       Petition to

withdraw as counsel is granted. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2017




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