J-S67045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN LIEBEL                                :
                                               :
                       Appellant               :   No. 2056 EDA 2018

               Appeal from the PCRA Order Entered May 28, 2018
       In the Court of Common Pleas of Bucks County Criminal Division at
                        No(s): CP-09-CR-0002466-1997


BEFORE:      OTT, J., NICHOLS, J., and STRASSBURGER*, J.

CONCURRING STATEMENT BY NICHOLS, J.:                    FILED MARCH 26, 2019

        I join the lead author in affirming the dismissal of Appellant’s ninth Post

Conviction Relief Act1 (PCRA) petition as untimely.         I write separately to

comment on the “procedural anomaly” identified in footnote 4 of the majority

memorandum and the dissent’s proposed remedy to remand this matter for

the appointment of counsel for this ninth PCRA petition.

        Initially, I agree with the dissent that an error occurred when Appellant

filed a “first” PCRA petition in 2006, but was not appointed new counsel.2
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.

2  By way of further procedural background, Appellant timely filed a PCRA
petition in 2000, and he was appointed counsel. Commonwealth v. Liebel,
825 A.2d 630, 632 (Pa. 2003). Appellant alleged ineffectiveness based on
trial counsel’s failure to develop defenses before Appellant pled guilty and
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Appellant did not raise this issue in any of his pro se petitions filed after 2006,

and the error went unnoticed by this Court and the Pennsylvania Supreme

Court until the present appeal. Cf. Commonwealth v. Liebel, 2927 EDA

2006, at 1-2 (Pa. Super. filed July 5, 2007) (unpublished mem.), appeal

denied, 720 MAL 2007 (Pa. filed Nov. 29, 2007).

       Pennsylvania Rule of Criminal Procedure 904 provides, in relevant part:

       (C) Except as provided in paragraph (H) [regarding death penalty
       cases], when an unrepresented defendant satisfies the judge that
       the defendant is unable to afford or otherwise procure counsel,


____________________________________________


direct appeal counsel’s failure to file a petition for an allowance of appeal from
this Court’s order affirming the judgment of sentence. Id. at 632 & n.3.
Following an evidentiary hearing at which trial counsel testified, the PCRA
court denied relief, and this Court affirmed. Id. at 632.

The Pennsylvania Supreme Court granted allowance of appeal to consider the
claim of direct appeal counsel’s ineffectiveness. Id. The Supreme Court
reversed this Court’s order affirming the denial of PCRA relief, and remanded
to the PCRA court to determine whether direct appeal counsel was ineffective
for failing to file a petition for allowance of appeal. Id. at 636. Upon remand,
the PCRA court granted Appellant leave to file a petition for allowance of
appeal nunc pro tunc, which the Supreme Court denied on August 27, 2004.
See Commonwealth v. Liebel, 875 A.2d 1074 (Pa. 2004).

Following the denial of his nunc pro tunc petition for allowance of appeal,
Appellant filed a pro se petition for writ of habeas corpus in the United States
District Court for the Eastern District of Pennsylvania. The federal district
court denied Appellant’s petition on its merits. See Liebel v. Brooks, No.
Civ. A. 04-4380, 2006 WL 237938 (E.D. Pa. filed Jan. 31, 2006) (mem.).

Appellant then filed a pro se PCRA petition in July 2006 (2006 petition). This
petition should have been regarded as a first PCRA petition, and the PCRA
court should have appointed counsel. See Commonwealth v. Karanicolas,
836 A.2d 940, 944 (Pa. Super. 2003); Commonwealth v. Lewis, 718 A.2d
1262, 1264 (Pa. Super. 1998).

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      the judge shall appoint counsel to represent the defendant on the
      defendant’s first petition for post-conviction collateral relief.

                                     *    *    *

      (E) The judge shall appoint counsel to represent a defendant
      whenever the interests of justice require it.

Pa.R.Crim.P. 904(C), (E). A violation of Rule 904(C) may be raised by this

Court sua sponte in a petitioner’s first PCRA petition. See Karanicolas, 836

A.2d at 944; Commonwealth v. Powell, 787 A.2d 1017, 1019 (Pa. Super.

2001) (noting that an “indigent petitioner’s right to counsel must be honored

regardless of the merits of his underlying claims, even where those claims

were previously addressed on direct appeal, so long as the petition in question

is his first” (citation omitted)).

      However, this does not mean that Rule 904(E) authorizes this Court to

address a violation of Rule 904(C) sua sponte in a second or subsequent

proceeding.    See Pa.R.Crim.P. 904(E).        To the contrary, the Pennsylvania

Supreme Court has repeatedly emphasized that the rules of issue preservation

and the timeliness requirements of the PCRA must be strictly construed, even

at the expense of fundamental rights. See Commonwealth v. Brown, 943

A.2d 264, 268 (Pa. 2008); id. at 272 (Baer, J., dissenting) (recognizing that

the strict application of the PCRA timeliness requirements may compel

“sacrificing fundamental rights at the altar of finality”); Commonwealth v.

Robinson, 837 A.2d 1157, 1157-58, 1161-62 (Pa. 2003) (criticizing this




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Court’s attempts to create equitable theories to avoid the effect of the PCRA

time-bar).

      There is no doubt that the error identified by the dissent goes to an

important rule-based right to counsel for a first PCRA petition.          See

Pa.R.Crim.P. 904(C).    However, I cannot agree that this error requires a

remand for the appointment of counsel for this ninth PCRA petition. Indeed,

even if Appellant raised this error in his ninth petition, he would have been

required to plead due diligence in discovering he was not appointed counsel

for his 2006 petition. See 42 Pa.C.S. § 9545(b)(2) (requiring that a petitioner

raise a facially untimely claim within sixty days of the date “when the claim

could have been presented”) (subsequently amended eff. Dec. 24, 2018).

Therefore, I conclude that the “interests of justice” standard in Rule 904(E)

does not support the remedy suggested by the dissent.

      Accordingly, I join the majority memorandum in full.

      Judge Ott joins this concurring statement.




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