J-A26039-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RUSSELL S. SHICK                           :
                                               :
                       Appellant               :   No. 720 WDA 2018

            Appeal from the Judgment of Sentence March 29, 2016
     In the Court of Common Pleas of Cambria County Criminal Division at
                       No(s): CP-11-CR-0000785-2014


BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.

DISSENTING MEMORANDUM BY SHOGAN, J.:                  FILED JANUARY 11, 2019

       After careful review, I respectfully disagree with the Majority’s decision

to quash Appellant’s nunc pro tunc appeal. Instead, I agree with the trial

court’s reinstatement of Appellant’s direct appeal rights nunc pro tunc, albeit

on a different basis,1 and I conclude that we should address the merits of the

appeal.

       The record reveals that on November 30, 2015, Appellant entered a

negotiated guilty plea to one count of aggravated assault. On March 29, 2016,

the trial court sentenced Appellant to a term of seven and one-half to fifteen

years of incarceration.



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1 This Court may affirm the decision of the trial court on any basis.
Commonwealth v. Clouser, 998 A.2d 656, 661 n.3 (Pa. Super. 2010).
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      On April 5, 2016, Appellant’s attorney, Leonard J. Berger, Jr., filed a

motion to withdraw as counsel and a post-sentence motion.          In the post-

sentence motion, Attorney Berger informed the trial court that Appellant no

longer wanted Attorney Berger’s services; instead, Appellant wanted new

counsel to file post-sentence motions on his behalf.         Attorney Berger,

understanding the time constraints involved in appointing counsel and filing

post-sentence motions, requested the trial court grant Appellant an additional

thirty days in which to file post-sentence motions. The trial court granted the

motion for an extension of time to file post-sentence motions and scheduled

a hearing on counsel’s motion to withdraw.

      On April 12, 2016, Appellant filed a pro se motion to withdraw his guilty

plea. After a hearing on April 28, 2016, the trial court granted trial counsel’s

motion to withdraw and denied Appellant’s pro se motion to withdraw his

guilty plea.   Order, 4/28/16.   The trial court did not appoint counsel, and

Appellant did not file a post-sentence motion or a direct appeal, despite

Attorney Berger informing the trial court of Appellant’s desire to do so.

Attorney Berger’s Motion to Withdraw, 4/5/16, at ¶4. Thus, as noted by the

Majority, Appellant’s judgment of sentence became final on May 31, 2016.

Majority Memorandum, at 2.

      Between June 1, 2016, and July 28, 2016, Appellant filed numerous pro

se motions, including an untimely notice of appeal. The trial court should have

treated these filings as petitions filed pursuant to the Post Conviction Relief


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Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. See Commonwealth v. Johnson,

803 A.2d 1291, 1293 (Pa. Super. 2002) (“We have repeatedly held that the

PCRA provides the sole means for obtaining collateral review, and that any

petition filed after the judgment of sentence becomes final will be treated as

a PCRA petition.”).    Rather than properly treating these filings as PCRA

petitions and appointing counsel, the trial court inexplicably construed

Appellant’s notice of appeal as a request to appeal nunc pro tunc. Order,

8/3/16. On August 3, 2016, the trial court denied Appellant relief. Id.

      On August 5, 2016, Appellant filed a pro se motion to dismiss, alleging

violations of his constitutional rights, the involuntary nature of his plea, the

illegality of his sentence, and ineffective assistance of counsel. Once more,

rather than treating Appellant’s motion as a timely, first PCRA petition as

required by Johnson, the trial court denied Appellant’s motion.          Order,

8/11/16.   Appellant continued to file pro se motions, and the trial court

continued to deny relief. Order, 8/22/16; Order, 8/24/16.

      On November 1, 2017, Appellant, with the assistance of counsel, filed

an “Amended Petition for Post-Conviction Relief.”        Counsel argued that

Appellant’s prior filings should have been deemed PCRA petitions, and

therefore, the instant petition “relates back” to prior filings and should be

considered timely under the PCRA. Amended PCRA Petition, 11/1/17, at 15.

Following hearings on the matter, the trial court agreed with Appellant and

found that Appellant’s November 1, 2017 PCRA petition was an “extension” of


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Appellant’s first timely filed petition. Order, 4/24/18, at ¶ 7. On April 24,

2018, the trial court reinstated Appellant’s direct appeal rights nunc pro tunc.

       The Majority concludes that Appellant’s PCRA petition failed to plead and

prove any exception to the PCRA time bar and finds that this Court lacks

jurisdiction. I respectfully disagree under the facts of this case.

       Appellant’s judgment of sentence became final on May 31, 2016;

therefore, Appellant had until May 31, 2017, to file a timely PCRA petition.

See 42 Pa.C.S. § 9545(b)(1) (A PCRA petition, “including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final....”). As discussed above, Appellant filed multiple documents

during this period that should have been deemed timely PCRA petitions

requiring the appointment of counsel. The failures in this matter were on the

part of the trial court. Appellant’s PCRA petitions were ignored, he proceeded

pro se at times he had the right to counsel,2 and the trial court never

conducted a hearing to determine if Appellant waived his right to counsel

pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

       The trial court’s errant disregard of Appellant’s rights and its failure to

treat prior filings as timely PCRA petitions constitute a complete breakdown in


____________________________________________


2 See Commonwealth v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007) (A
criminal defendant has the constitutional right to counsel on direct appeal.);
see also Commonwealth v. Figueroa, 29 A.3d 1177, 1180 n.6 (Pa. Super.
2011) (“[I]t is undisputed that first time PCRA petitioners have a rule-based
right to counsel.”).


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the operation of the court. This breakdown affords Appellant the opportunity

to pursue his rights to relief nunc pro tunc. See Commonwealth v. Stock,

679 A.2d 760, 763-764 (Pa. 1996); Criss v. Wise, 781 A.2d 1156, 1159 (Pa.

2001) (stating that appellate courts may grant a party equitable relief in the

form of an appeal nunc pro tunc in certain extraordinary circumstances such

as a breakdown in the operations of the court). Accordingly, I conclude that

this Court should not quash the appeal; rather, we should address its merits.

Therefore, I respectfully dissent.




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