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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                    v.                      :
                                            :
JAMES E. JOHNSON,                           :
                                            :
                          Appellant         :
                                            :     No. 1270 WDA 2015

                       Appeal from the Order May 18, 2015
       in the Court of Common Pleas of Lawrence County Criminal Division
                        at No(s): CP-37-CR-0000593-2002

BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 24, 2016

        Appellant, James E. Johnson, appeals pro se from the order of the

Lawrence County Court of Common Pleas denying his pro se “motion to set

aside his mandatory minimum sentence pursuant to Alleyne v. United

States[1] nunc pro tunc.”        Appellant challenges the constitutionality of

certain sentences imposed in 2003. We conclude Appellant’s pro se motion

constitutes a first Post Conviction Relief Act2 (“PCRA”) petition, vacate the

order, and remand this matter for the appointment of PCRA counsel.

        This Court previously set forth the factual circumstances underlying

Appellant’s guilty pleas to numerous charges including delivery of a


*
    Former Justice specially assigned to the Superior Court.
1
    133 S. Ct. 2151 (2013).
2
    42 Pa.C.S. §§ 9541-9546.
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controlled substance.3    See Commonwealth v. Johnson, 275 WDA 2007

(Pa. Super. Jan. 3, 2008) (unpublished memorandum).             For the present

purposes, it suffices to note that Appellant, on June 24, 2004, entered open

pleas to the charges and was sentenced to an aggregate fourteen to twenty-

eight years’ imprisonment.         The   sentence   included   two   consecutive

mandatory minimum sentences under 18 Pa.C.S. § 7508 (“Drug trafficking

sentencing and penalties”).

        Appellant did not take a timely direct appeal, but the PCRA court

reinstated his appellate rights after he filed a PCRA petition. On January 3,

2008, this Court affirmed the judgment of sentence nunc pro tunc.

Johnson, 275 WDA 2007, at 10.            Appellant did not timely petition the

Pennsylvania Supreme Court for allowance of appeal.                  See Order,

Commonwealth v. Johnson, 18 WM 2008 (Pa. July 9, 2008) (denying

Appellant leave to file a petition for allowance of appeal nunc pro tunc).

However, he filed a another PCRA petition. The PCRA court, after appointing

counsel, granted Appellant leave to file a petition for allowance of appeal

nunc pro tunc.     PCRA Ct. Order, 7/21/09, at ¶ 1.      On April 7, 2010, the

Pennsylvania    Supreme    Court   denied    allowance   of    appeal.   Order,

Commonwealth v. Johnson, 390 WAL 2009 (Pa. Apr. 7, 2010).

        Appellant, on February 10, 2015, filed a         pro se “motion for

reconsideration of sentence,” which the trial court denied on February 11,

3
    35 P.S. § 780-113(a)(30).



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2015.     Appellant filed a notice of appeal from the February 11th order.

However, on March 13, 2015, Appellant filed the pro se motion giving rise to

this appeal and subsequently filed a pro se motion to withdraw his earlier

appeal from the February 11th order. On May 18, 2015, the court granted

the motion to withdraw the prior appeal and denied Appellant’s March 13th

motion to set aside the mandatory minimum sentences.4 On June 22, 2015,

the court received Appellant’s pro se notice of appeal from the May 18th

order denying his March 13th motion.

        As to the filing of the pro se notice of appeal, the record contains an

envelope, postmarked June 18, 2015, addressed from Appellant at SCI-

Mercer to the clerk of the court.     Appellant also attached to his notice of

appeal a certificate of service, dated June 17th, stating he placed in the

prison’s mail repository with postage prepaid and an unsworn declaration

form signed June 17th.

        Preliminarily, we find Appellant timely filed his notice of appeal. See

Pa.R.A.P. 903(a); Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa.

Super. 2011) (noting issue of appellate jurisdiction may be raised sua

sponte); Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa. Super.

2007) (discussing “prisoner mailbox rule). Appellant’s certificate of service

indicated he deposited his pro se notice of appeal in the prison mail


4
  Although the trial court’s order denying relief was authored on May 15,
2015, it was not docketed until May 18th.



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repository on June 17, 2015—the thirtieth day after the order denying his

pro se motion.        Although Appellant’s envelope was postmarked on June

18th, one day late, we deem June 17th as the date of filing under the

prisoner mailbox rule.      Cf. Patterson, 931 A.2d at 714.      Accordingly, we

decline to quash the appeal.

          Appellant, in both the underlying motion and this appeal, asserts that

the application of the mandatory minimum sentences prescribed by 18

Pa.C.S. § 7508 is unconstitutional in light of Alleyne. Appellant’s Brief at 6;

Appellant Mot. to Vacate J. of Sentence, 5/13/15, at 4 (unpaginated). The

Commonwealth responds that Appellant’s pro se motion was properly

dismissed because it constituted an untimely PCRA petition and Alleyne

does       not    apply   retroactively    in   a   post-conviction   proceeding.

Commonwealth’s Brief at 6.

          Although we agree with the Commonwealth that the PCRA subsumes

Appellant’s specific request for relief, see Commonwealth v. Ford, 947

A.2d 1251, 1252-53 (Pa. Super. 2008), we do not address the arguments

raised in this appeal. Rather, the procedural history of this case reveals that

Appellant’s pro se motion is technically his first attempt at post-conviction

relief.    See Commonwealth v. Karanicolas, 836 A.2d 940, 945-46 (Pa.

Super. 2003).       As such, Appellant has a rule-based right to counsel and is

entitled to the procedures safeguarding that right, even if the petition is




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untimely on its face. See Commonwealth v. Perez, 799 A.2d 848, 851-52

(Pa. Super. 2002).

      Because there is no indication Appellant had the benefit of PCRA

counsel in this matter, we vacate the PCRA court’s order and remand this

matter for the appointment of counsel.     See Perez, 799 A.2d at 851-52

(reiterating that “[t]he denial of PCRA relief cannot stand unless the

petitioner was afforded the assistance of counsel”).

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/24/2016




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