J-S51042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    NELSON JAMES SIMMONS                       :
                                               :
                      Appellant                :   No. 3836 EDA 2016

                 Appeal from the PCRA Order October 28, 2016
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR0001338-2008


BEFORE:      BOWES, SHOGAN, JJ., and STEVENS, P.J.E.*

JUDGMENT ORDER BY STEVENS, P.J.E.:                      FILED AUGUST 29, 2017

        Appellant appeals from the order of the Court of Common Pleas of

Lehigh County denying his petition pursuant to the Post Conviction Relief Act

(“PCRA”).1      We vacate the PCRA court’s order and remand for the

appointment of counsel to assist Appellant in the litigation of this petition.

        On November 20, 2008, Appellant was convicted of kidnapping,

robbery of a motor vehicle, and criminal conspiracy. On February 2, 2009,

the trial court sentenced Appellant to an aggregate term of twenty-nine to

eighty years’ imprisonment. On appeal, this Court affirmed the judgment of

sentence on May 20, 2010 and the Supreme Court denied allowance of

appeal on February 3, 2011.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S.A. §§ 9541-9546.
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      On January 25, 2012, Appellant filed a pro se PCRA petition.          The

PCRA court appointed counsel, who filed an amended petition. On April 12,

2012, the PCRA court granted Appellant’s petition and reinstated Appellant’s

direct appellate rights nunc pro tunc. After an appeal was filed, this Court

affirmed the judgment of sentence on March 20, 2013.

      On April 24, 2013, Appellant filed another pro se PCRA petition. After

counsel was again appointed, the PCRA court once again reinstated

Appellant’s direct appeal rights. After Appellant filed a notice of appeal, this

Court affirmed the judgment of sentence on January 13, 2015, and the

Supreme Court denied allowance of appeal on July 22, 2015.

      On September 27, 2016, Appellant filed the instant PCRA petition,

asserting that he was denied effective assistance of counsel as his counsel

never informed him that his petition for allowance of appeal was denied by

the Supreme Court on July 22, 2015. On October 10, 2016, the PCRA court

notified Appellant of its intent to dismiss his petition without a hearing

pursuant to Pa.R.Crim.P. 907.      The PCRA court ultimately dismissed the

petition on October 28, 2016. This timely appeal followed.

      On appeal, Appellant argues that he is entitled to reinstatement of his

rights to file a PCRA petition or a remand to assess his claims that PCRA

counsel abandoned him on direct appeal by failing to notify him of the

Supreme Court’s July 22, 2015 decision. Appellant asserts that he did not

receive any notice of this decision and only learned of its existence on

August 2, 2016, after making an inquiry to the Supreme Court.               The

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Commonwealth agrees with Appellant and asserts that this Court should

remand for the appointment of counsel to represent Appellant.

      Appellant’s claim of ineffectiveness of counsel is cognizable under the

PCRA. 42 Pa.C.S.A. § 9543(a)(2)(ii). As Appellant brought two successful

PCRA petitions which led to the reinstatement of his appellate rights nunc

pro tunc, the instant PCRA petition should have been treated as his first

petition seeking collateral relief.   “It is now well[-]established that a PCRA

petition brought after an appeal nunc pro tunc is considered [an] appellant's

first PCRA petition, and the one-year time clock will not begin to run until

this appeal nunc pro tunc renders his judgment of sentence final.”

Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa.Super. 2007).

      Moreover, our rules of criminal procedure provide that a criminal

defendant is entitled to representation by counsel for the purpose of

litigating a first PCRA petition through the entire process of collateral review.

Pa.R.Crim.P. 904(c) (providing that “[e]xcept as provided in paragraph (H)

[relating to death penalty cases], 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”). “The denial of

PCRA relief cannot stand unless the petitioner was afforded the assistance of

counsel.” Commonwealth v. Albrecht, 554 Pa. 31, 43, 720 A.2d 693, 699

(Pa. 1998).




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      As a result, Appellant was entitled to the assistance of counsel in

litigating this PCRA petition, which should be considered his “first” petition.

Accordingly, we vacate the PCRA court’s order denying Appellant’s PCRA

petition and remand for the appointment of counsel.           Counsel thereafter

must file an amended petition on Appellant’s behalf or certify that the claims

lack merit under the requirements set forth in Commonwealth v. Finley,

550 A.2d 213 (Pa.Super. 1988) (en banc).

      Order vacated.         Remand for appointment of counsel and further

consideration   of   Appellant’s    petition   consistent   with   this   decision.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2017




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