J-S48007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
          v.                                   :
                                               :
                                               :
JOEL ROBERT SNIDER                             :
                                               :
                 Appellant                     :   No. 2013 MDA 2016

                  Appeal from the PCRA Order November 9, 2016
                  In the Court of Common Pleas of Union County
               Criminal Division at No(s): CP-60-CR-0000340-2010


BEFORE:        OTT, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                                FILED NOVEMBER 21, 2017

        Joel Robert Snider appeals from the order entered on November 9,

2016, denying him relief without a hearing, on his petition filed pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. In this timely

appeal Snider argues the PCRA court erred in failing to grant him a hearing on

his claims. After a thorough review of the submissions by the parties, relevant

law, and the certified record, we vacate and remand for a hearing.

        Our standard of review for this matter is as follows: “A PCRA court's

decision denying a claim without a hearing may only be reversed upon a

finding of an abuse of discretion.” Commonwealth v. Walker, 36 A.3d 1, 17

(Pa. 2011) (citation omitted).

        Additionally,

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*   Retired Senior Judge assigned to the Superior Court.
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      [T]he right to an evidentiary hearing on a post-conviction petition
      is not absolute. Commonwealth v. Jordan, 772 A.2d 1011, 1014
      (Pa. Super. 2001). It is within the PCRA court's discretion to
      decline to hold a hearing if the petitioner's claim is patently
      frivolous and has no support either in the record or other evidence.
      Id. It is the responsibility of the reviewing court on appeal to
      examine each issue raised in the PCRA petition in light of the
      record certified before it in order to determine if the PCRA court
      erred in its determination that there were no genuine issues of
      material fact in controversy and in denying relief without
      conducting an evidentiary hearing. Commonwealth v.
      Hardcastle, 549 Pa. 450, 701 A.2d 541, 542-543 (1997).

Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007), quoting

Commonwealth v. Khalifah, 852 A.2d 1238, 1239-1240 (Pa. Super. 2004).

      However, “[A]n evidentiary hearing ... is not ... a fishing expedition for

any possible evidence that may support some speculative claim of

ineffectiveness.”   Commonwealth v. Keaton, 45 A.3d 1050, 1094 (Pa.

2012) (citations omitted).

      On August 8, 2014, Snider entered into a negotiated plea of guilty but

mentally ill to one count of third-degree murder and one count of burglary.

The charges arose from the shooting death of Sudharman Joseph Fenton on

July 5, 2010. Snider was sentenced at the time of his plea to the agreed upon

aggregate sentence of 30 – 60 years’ incarceration. On July 7, 2015, Snider

filed an untimely, pro se, notice of appeal. This notice of appeal was docketed

on July 10, 2015. At the same time, he sought appointment of counsel. The

trial court denied Snider counsel but did not address the notice of appeal.

Shortly after the denial of his request for counsel, Snider filed a pro se PCRA



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petition. In that petition, Snider indicated counsel never consulted with him

regarding a direct appeal, and that due to his mental illness and the nature of

his incarceration, he was unable to contact counsel. Snider further alleges

that as his illness stabilized, he did contact counsel and asked that a direct

appeal be filed. However, counsel declined as the 30-day time limit to file an

appeal had expired.

      Snider was appointed counsel who filed an amended PCRA petition. That

petition, currently before us, incorporated all of Snider’s claims raised in the

pro se petition and amplified these claims Snider raised regarding his mental

illness and whether his guilty plea was knowing, voluntary and intelligent. The

PCRA court denied Snider’s petition without a hearing. This appeal followed.

      We begin by stating that this decision will not address any of the issues

raised by Snider or counsel, other than those regarding the open and

unresolved notice of appeal. This is our first encounter with a notice of appeal

that has been left unresolved in this manner: The failure to address the filing

represents a breakdown of the judicial process.         We believe there are

essentially two options open to us. We can determine that the initial filing is

an unresolved direct appeal or we can treat the matter as an unresolved PCRA

petition. Because the filing was facially untimely as a direct appeal, pursuant

to Commonwealth v. Taylor, 65 A.3d 462 (Pa. Super 2013), any petition

filed after the judgment of sentence becomes final should be treated as a PCRA

petition. Accordingly, the facially untimely notice of appeal should have been

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considered to be a PCRA petition and Snider should have been appointed

counsel. Therefore, pursuant to the above reasoning and in the interest of

judicial economy, we will treat Snider’s current PCRA petition as an

amendment to the unresolved initial filing.1

       However, days after Snider’s request for counsel, which was a part of

the unresolved initial filing, Snider filed a pro se PCRA petition and was

appointed counsel.        As noted above, Snider’s pro se petition included

references to his attempts to file a direct appeal and/or withdraw his guilty

plea. Also noted above, the amended petition filed by counsel, incorporates

those allegations.      Accordingly, we interpret Snider’s petition to include a

request for nunc pro tunc relief to file a direct appeal.2      This issue, left

unresolved by the breakdown of the judicial process, must be addressed;

therefore, a remand to the PCRA court is necessary. Because there exists a

possibility that Snider is entitled to nunc pro tunc relief, we will not address

any of the other issues raised in Snider’s PCRA petition. If the parties and the



____________________________________________


1If we treated the initial filing as an unresolved direct appeal, pursuant to
Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000), we would dismiss this
petition as premature. However, the filing of an untimely notice of direct
appeal does not toll the one-year time limitation for filing a PCRA petition. We
do not believe a breakdown in the judicial process should prejudice Snider.

2Although we are treating the initial filing as a PRCA petition, we cannot ignore
the fact that Snider sought a direct appeal albeit well after the appeal period
expired.

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court believe there are other issues that need factual clarification, the hearing

may include those, as well.

      Order vacated. This matter is remanded for action consistent with this

decision. Jurisdiction relinquished.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2017




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