J-S22041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RASHEEK R. BLACKSTONE,

                            Appellant                 No. 995 MDA 2016


                    Appeal from the PCRA Order May 2, 2016
                in the Court of Common Pleas of Dauphin County
               Criminal Division at Nos.: CP-22-CR-0001725-2006
                            CP-22-CR-0001726-2006


BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*

JUDGMENT ORDER BY PLATT, J.:                               FILED MAY 02, 2017

        Appellant, Rasheek R. Blackstone, appeals, pro se, from the order of

May 2, 2016, denying his motion for disposition of pending petition for

PCRA1 relief or immediate discharge. For the reasons discussed below, we

vacate the order and remand with instructions.

        On October 13, 2006, following trial, a jury convicted Appellant of two

counts of recklessly endangering another person, one count each of

aggravated assault, firearms not to be carried without a license, and

unlawful to fire any weapon within city limits. On December 21, 2006, the

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    The Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
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trial court sentenced Appellant to an aggregate term of incarceration of not

less than eight nor more than twenty years. Appellant did not file a direct

appeal.

         On December 7, 2015, Appellant filed a motion claiming that, in 2008,

he had filed a petition under the PCRA, which had never been decided by the

court.     (See Motion for Disposition of Pending Petition for PCRA Relief,

12/07/15, at 1).      Appellant sought either a decision on the petition or

immediate discharge. (See id. at 3). The court denied the motion on May

2, 2016.      The instant timely appeal followed.    The court did not order

Appellant to file a concise statement of errors complained of on appeal. See

Pa.R.A.P. 1925(b). On July 26, 2016, the court issued a statement in lieu of

a Rule 1925(a) opinion stating that there is no indication in either docket

that a PCRA petition was ever filed for Appellant in 2008. Furthermore, the

PCRA court reviewed Appellant’s physical files and found no petition in any of

them.      (See PCRA Court Opinion, 7/26/16, at 2); see also Pa.R.A.P.

1925(a).

         We review this matter to determine whether the record supports the

PCRA court’s findings and whether its order is otherwise free of legal error.

See Commonwealth v. Faulk, 21 A.3d 1196, 1199 (Pa. Super. 2011).

         Here, the record demonstrates that Appellant attached a copy of a

purported PCRA petition to his motion.      The petition appears to be date-

stamped as being received by the Clerk of Courts of Dauphin County on


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January 18, 2008. (See PCRA Petition, 1/18/08, at unnumbered page 1).

Thus, it appears that Appellant may have attempted to file a PCRA petition in

2008 and that the Clerk of Courts date-stamped and may have received the

petition.

      Accordingly, we vacate the order of May 2, 2016, and remand to the

PCRA court for an evidentiary hearing on whether there was a breakdown in

the operation of the court in 2008 that may have resulted in a failure to file

and docket Appellant’s PCRA petition. We direct the PCRA court to appoint

counsel to represent Appellant’s interests in this hearing.    See Pa.R.A.P.

904. We further direct the court to determine whether Appellant exercised

due diligence in waiting almost eight years to ascertain the status of his

petition. Specifically, we direct the court to determine if Appellant properly

complied with 42 Pa.C.S.A. § 9545(b)(2) (“60 day rule”).        See also 42

Pa.C.S.A. § 9545(b) (petition may be dismissed if delay prejudiced the

Commonwealth); Cf., Commonwealth v. Markowitz, 32 A.3d 706 (Pa.

Super. 2011), appeal denied, 40 A.3d 1235 (Pa. 2012) (prejudicial delay in

filing petition precluded relief); Commonwealth v. Weatherill, 24 A.3d

435 (Pa. Super. 2011), appeal denied, 63 A.3d 777 (Pa. 2013) (prejudicial

delay prohibited relief where appellant did not filed amended petition for ten

years); Commonwealth v. Renchenski, 988 A.3d 699 (Pa. Super. 2010),

affirmed, 52 A.3d 251 (Pa. 2012) (same). If the court determines that such

a breakdown occurred, and that Appellant exercised due diligence in


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ascertaining the status of his petition, then we direct it to permit Appellant’s

PCRA petition to be filed nunc pro tunc and to appoint counsel to continue to

represent him in any further PCRA proceedings on this petition.

      Order vacated. Case remanded. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2017




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