J-S57011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA


                        v.

    VIRGIL VAMICHICHI

                             Appellant               No. 3259 EDA 2016


                  Appeal from the PCRA Order October 12, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1302112-2006


BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                       FILED NOVEMBER 13, 2017

        Appellant, Virgil Vamichichi, appeals pro se from the order entered in

the Philadelphia County Court of Common Pleas, which dismissed his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-9546.1 We are constrained to vacate the PCRA court’s order and remand

for appointment of counsel.




____________________________________________


1 Appellant purports to appeal from the September 9, 2016 order dismissing
his PCRA petition. We observe a docket entry with that date, but the certified
record contains no corresponding order or transcript to confirm the entry of
an order dismissing the petition. Appellant filed a pro se notice of appeal with
this Court on September 26, 2016. The PCRA court formally entered an order
on October 12, 2016, dismissing Appellant’s petition. “A notice of appeal filed
after the announcement of a determination but before the entry of an
appealable order shall be treated as filed after such entry and on the day
thereof.” Pa.R.A.P. 905(a)(5). Thus, we treat Appellant’s notice of appeal as
having been timely filed on October 12, 2016.
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     The relevant facts and procedural history are as follows. Appellant and

an accomplice were driving around in the early morning hours of March 3,

2001, when they spotted the victim, a woman neither of them knew. They

stopped, and Appellant grabbed the victim and threw her into the backseat of

the car. Appellant informed his accomplice, “I’mma fuck this bitch.”

Commonwealth v. Vamichichi, No. 591 EDA 2009, at 2 (Pa. Super., filed

May 28, 2010) (unpublished memorandum) (citation omitted). And Appellant

then raped the screaming, struggling victim, as Appellant’s accomplice drove

the car. Appellant and the accomplice then switched places, and the

accomplice raped the victim. After concluding the rapes, Appellant and his

accomplice pulled the victim out of the car and beat her, breaking three to

four of her ribs and puncturing her lung. Following the beating, the pair

searched the victim’s pockets, grabbed $20, and drove off.

     The victim contacted police, who took her to the hospital for medical

treatment and a rape kit. Appellant’s DNA was entered into the statewide

offender database several years later, following an unrelated conviction. His

DNA matched that found in the victim after the rape (Appellant had ejaculated

inside her), and he was arrested.

     On April 2, 2008, the trial court convicted Appellant of rape, aggravated

assault, criminal conspiracy, and unlawful restraint. The court sentenced

Appellant to an aggregate 12-24 years’ incarceration, plus ten years of

probation. Appellant filed an appeal to this Court, and we affirmed his

judgment of sentence. See Vamichichi, supra. Our Supreme Court denied

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Appellant’s petition for allowance of appeal. See Commonwealth v.

Vamichichi, 8 A.3d 345 (Pa. 2010) (Table).

      Appellant then filed his first, timely PCRA petition on May 6, 2011. In it,

he alleged trial counsel was ineffective for failing to move for dismissal of the

unlawful restraint charge, as the statute of limitations for that crime had

expired prior to the filing of the criminal information against Appellant. The

PCRA court agreed, vacated Appellant’s conviction for unlawful restraint, and

vacated Appellant’s entire sentence. Thereafter, Appellant was resentenced.

The court imposed an aggregate sentence of 12-24 years’ incarceration, plus

ten years’ probation, on Appellant’s remaining convictions.

      Appellant appealed to this Court and challenged the discretionary

aspects of his sentence. This Court affirmed Appellant’s new judgment of

sentence. See Commonwealth v. Vamichichi, No. 1887 EDA 2013 (Pa.

Super., filed July 18, 2014) (unpublished memorandum).

      Appellant then filed a pro se PCRA petition on June 23, 2015, alleging

the ineffective assistance of re-sentencing counsel. The PCRA court found “the

petition … timely following the judgment of resentence.” PCRA Court Opinion,

12/29/16, at 5. The court addressed the ineffective assistance of counsel claim

on the merits, but denied relief without conducting an evidentiary hearing,

finding “the underlying claim lacks arguable merit” and “fails to demonstrate

prejudice.” Id., at 7.

      Appellant’s pro se appeal is now before us. On appeal, Appellant raises

a single issue, regarding the ineffective assistance of resentencing counsel.

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      We review the ruling of the PCRA court to determine whether it is

supported by the record and free of legal error. See Commonwealth v

Spotz, 18 A.3d 244, 259 (Pa. 2011). We defer to the PCRA court’s factual

conclusions; however, we apply “a de novo standard of review to the PCRA

court’s legal conclusions.” Id. (citation omitted).

      We must first determine whether Appellant’s PCRA petition is timely, as

the timeliness of a PCRA petition implicates our Court’s jurisdiction. See

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014).

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence becomes final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration of
      the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3).
      The PCRA’s timeliness requirements are jurisdictional; therefore,
      a court may not address the merits of the issues raised if the
      petition was not timely filed. The timeliness requirements apply to
      all PCRA petitions, regardless of the nature of the individual claims
      raised therein.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (internal citations

and footnote 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). A petitioner is

entitled to PCRA counsel for a first PCRA petition. See Commonwealth v.

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

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      “[A] successful first PCRA petition does not ‘reset the clock’ for the

calculation of the finality of the judgment of sentence for purposes of the PCRA

where the relief granted in the first petition neither restored a petitioner’s

direct appeal rights nor disturbed his conviction, but, rather, affected his

sentence only.” Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa.

Super. 2008) (citation omitted). Though it explicitly forbids reexamination of

the underlying circumstances of a conviction, McKeever contains an implicit

exception for appellate claims specifically related to the resentencing.

      There, the appellant’s conviction for corrupt organizations was vacated;

however, his remaining convictions and sentences were not disturbed. The

appellant filed a direct appeal from that resentencing, was denied relief, and

then filed a PCRA petition. The panel noted the appellant was only able to

challenge the resentencing on direct appeal, rather than challenging any part

of his convictions unaffected by the resentencing—“his underlying claims of

trial error regarding his non-vacated convictions could not be addressed on

direct appeal from resentencing.” Id., at 786. Thus, McKeever clearly limits

the scope of direct appeals following a resentencing to matters stemming

directly from that resentencing. That necessarily means that a subsequent

PCRA petition is also limited to challenging an element strictly related to

resentencing, such resentencing counsel’s stewardship, in order to be

considered timely. Accord Commonwealth v. Lesko, 15 A.3d 345, 357-367

(Pa. 2011).


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      Simply put, Appellant is permitted to raise claims related to his

resentencing.   Appellant’s   petition   challenges   resentencing   counsel’s

effectiveness. Appellant’s new judgment of sentence became final on August

17, 2014, when his time expired for filing an appeal with our state Supreme

Court, following this Court’s affirmance of Appellant’s new judgment of

sentence. Appellant then filed his PCRA petition on June 23, 2015. Thus, we

consider Appellant’s petition to be a timely “first” PCRA petition—with respect

to his resentencing claim.

      The PCRA court correctly construed Appellant’s PCRA petition as timely,

but nevertheless failed to appoint counsel. Appellant, who is proceeding in

forma pauperis in this appeal, was entitled to the appointment of counsel.

Accordingly, we must vacate the PCRA court’s order denying relief, and

remand for the appointment of counsel and the opportunity for Appellant to

file an amended PCRA petition with the benefit of counsel.

      Order vacated. Case remanded for appointment of counsel. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2017



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