J. S17008/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
CARLOS QUENTO MATHIS, SR.,                  :
                                            :
                          Appellant         :     No. 564 WDA 2014

                  Appeal from the PCRA Order March 18, 2014
                  In the Court of Common Pleas of Erie County
               Criminal Division No(s).: CP-25-CR-0002715-2008

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 17, 2015

        Appellant, Carlos Quento Mathis, Sr., appeals pro se from the order

entered in the Erie County Court of Common Pleas dismissing his petition

filed pursuant to the Post Conviction Relief Act1 (“PCRA”). For the reasons

that follow, we vacate that order and remand for further proceedings.

        The PCRA court summarized the procedural posture of this case as

follows:

              Following a jury trial on May 14, 2009, [Appellant] was
           found guilty of Criminal Attempt of Robbery; Kidnapping;
           Burglary; Robbery; Terroristic Threats; Theft by Unlawful
           Taking; and Receiving Stolen Property. [Appellant] now
           seeks to attack his conviction collaterally through his



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J. S17008/15

         third[2] PCRA due to the alleged ineffective assistance of
         counsel of each of the various attorneys who have
         represented him through trial, on appeal, and in his
         previous requests for post-conviction relief. . . .

                                 *    *    *

            On July 23, 2009, [Appellant] was sentenced to an
         aggregate term of incarceration of 15 to 40 years.
         [Appellant] then appealed to the Superior Court, but his
         appeal was quashed as untimely. In December 2009,
         [Appellant] filed a PCRA petition alleging ineffective
         assistance of counsel and requesting his appellate rights
         be reinstated nunc pro tunc.         This [c]ourt granted
         [Appellant’s] request and appointed [ ] counsel.
         Subsequently, [counsel] withdrew because of a conflict of
         interest and [other counsel] was appointed as appellate
         counsel for [him]. A renewed appeal was filed, and the
         Superior Court affirmed this court’s judgment of sentence
         on May 5, 2011.

            On March 12, 2013, [Appellant] filed his second PCRA,
         once again alleging ineffective assistance of counsel on the
         basis that [counsel] failed to appeal to the Pennsylvania
         Supreme Court and requesting his appellate rights be
         reinstated nunc pro tunc.            This [c]ourt treated
         [Appellant’s] second PCRA as his first and appointed
         [counsel] for [him].     On June 13, 2012, this [c]ourt
         granted [Appellant’s] request and reinstated [his]
         appellate rights nunc pro tunc.          Subsequently, the
         Pennsylvania Supreme court denied [Appellant’s] “Petition
         for Allowance of Appeal” [“PAA”] on December 27, 2012,
         denying his request for allocator.

            On November 21, 2013, [Appellant] filed a “Motion to
         Reinstate or Accredit Time,” which this [c]ourt construed
         as [his] third PCRA. On December 9, 2013, this [c]ourt
         gave [Appellant] thirty days to amend his PCRA . . . . On
         December 27, 2013, Petitioner filed his amended PCRA, for


2
 As set forth below, the instant petition is Appellant’s first, not third, PCRA
petition.



                                     -2-
J. S17008/15

           a third time raising claims of ineffective assistance of
           counsel.

PCRA Ct. Op., 2/14/14, at 1, 2-3 (footnote and citation omitted).

      On February 14, 2014, the PCRA court gave Appellant notice of its

intent to dismiss the PCRA petition pursuant to Pa.R.Crim.P. 907. On March

18, 2014, the PCRA petition was dismissed.         This timely appeal followed.

Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors

complained of on appeal and the PCRA court filed a Pa.R.A.P. 1925(a)

opinion.

      Appellant raises the following issues for our review:

           A. Did the Lower Court err in finding counsel was effective,
           after counsel failed to file a motion to suppress the arrest,
           due to no signature of an issuing authority on any of the
           documents?

           B. Did the Lower Court err by finding counsel effective
           after failing to properly or adequately investigate the case,
           providing actual proof of Appellant’s location during the
           commission of the crimes by cell phone records?

           C. Did the Lower Court err by finding counsel effective
           after failing to subpoena phone records from the Erie
           County Prison, impeaching alleged co-conspirator?

           D. Did the Lower Court err by finding counsel effective
           after failing to object to Police testimony about the
           contents of Katherine Kramer’s car, as all three inventory
           reports are different?

           E. Did the Lower Court err by finding counsel effective
           after failing to diligently inform Appellant of the state of
           the proceedings, allowing Appellant’s appeal rights to
           expire?

Appellant’s Brief at 4.


                                       -3-
J. S17008/15

      As a prefatory matter, we consider whether Appellant was entitled to

the appointment of counsel.

      Our Supreme Court has stated that if a defendant has been denied the

right to file a petition for allowance of appeal, on direct appeal, the PCRA

provides   for   the   reinstatement    of   that     right   under   appropriate

circumstances.    Commonwealth v. Liebel, 825 A.2d 630, 635-36 (Pa.

2003). “‘It is now well [-]established that a PCRA petition brought after an

appeal nunc pro tunc is considered [an] appellant’s first PCRA petition[.]’

Thus, [the a]ppellant was entitled to counsel . . . .”        Commonwealth v.

Figueroa, 29 A.3d 1177, 1181 (Pa. Super. 2011) (citations omitted).

“[W]hen 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).

      Instantly, the PCRA court considered the instant petition as Appellant’s

third PCRA petition.   Trial Ct. Op. at 1.   Because Appellant’s petition was

brought after his appeal nunc pro tunc, it should have been considered his

first PCRA petition. See Figueroa, 29 A.3d at 1181. Therefore, Appellant

was entitled to the appointment of counsel. Id.

      Accordingly, we decline to reach the merits of the present appeal.     We

vacate the PCRA court’s March 18, 2014 order and remand this matter for

the appointment of counsel.



                                       -4-
J. S17008/15

     Order vacated. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/17/2015




                                  -5-
