J-S42005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RAYMON LEE,

                            Appellant                 No. 500 WDA 2015


                 Appeal from the PCRA Order February 17, 2015
              In the Court of Common Pleas of Washington County
              Criminal Division at No(s): CP-63-CR-0002407-2000


BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED JUNE 10, 2016

       Appellant, Raymon Lee, appeals from the order denying his first

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We vacate and remand for further proceedings.

       The PCRA court summarized the procedural history of this case as

follows:

              [Appellant] entered a plea of guilty before Judge John Bell
       on June 4, 2002. At case number 2407-2000 on the charge of
       Violation of the Controlled Substance, Drug Device, and
       Cosmetic Act, Possession with Intent to Deliver Crack Cocaine,
       [Appellant] was sentenced to pay the costs of prosecution and
       be transferred to the Western Diagnostic & Classification Center
       for confinement in an appropriate state penal institution for no
       less than two (2) years, no more than (4) years. Judge Bell
       found that [Appellant] met all of the qualifications to be admitted
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      into the Motivational Boot Camp Program and therefore
      recommended to the Department of Corrections that [Appellant]
      be admitted into said program at their discretion.

             On January 23, 2015, [Appellant] filed a pro se PCRA
      petition at case number 2407-2000. In an order dated February
      17, 2015 (“Order”), the [PCRA c]ourt dismissed [Appellant’s]
      PCRA petition because it determined that it lacked jurisdiction of
      [Appellant’s] final sentence pursuant to 42 Pa.C.S.A. § 9545(b).1
      [Appellant] appealed this Order to the Superior Court on March
      2[0], 2015.
            1
              The Court failed to provide notice of its intent to
            summarily dismiss [Appellant’s] petition without a
            hearing prior to issuing its Order dismissing the
            petition in accordance with Pennsylvania Rule of
            Criminal Procedure 907. The Superior Court has
            held that a post-conviction court’s failure to provide
            petitioner with notice of its intent to summarily
            dismiss petition under [the PCRA] did not provide a
            basis for reversal of dismissal of petition where the
            petition was patently untimely. Com. v. Lawson, 90
            A.3d 1, 7 (Pa. Super. 2014); See also, Com v. Davis,
            916 A.2d 1206, 1208 (where PCRA petition is
            untimely, the failure to provide such notice is not
            reversible error). Further, [Appellant] appealed this
            [c]ourt’s Order on the merits.

PCRA Court Opinion, 5/13/15, at 1-2.      Both Appellant and the PCRA court

complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      1. Whether the PCRA Court erred when it found that it lacked
      jurisdiction when Appellant was not afforded the benefit of
      counsel?

      2. Whether the PCRA Court erred when it found that Alleyne v.
      United States, 133 S.Ct. 2151 (2013) did not afford the
      Appellant retroactive constitutional rights?

Appellant’s Brief at 4.


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      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).      The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      We must first address the timeliness of this appeal because the record

reveals that the appeal was not filed within thirty days of the date of the

order denying PCRA relief.     It is well established that “when an Act of

Assembly fixes the time within which an appeal may be taken, a court may

not extend [the] time for appeal.”     Commonwealth v. Coolbaugh, 770

A.2d 788, 791 (Pa. Super. 2001) (quoting Commonwealth v. Anwyll, 482

A.2d 656, 657 (Pa. Super. 1984)).

      Pursuant to Rule 903 of the Pennsylvania Rules of Appellate Procedure,

“the notice of appeal . . . shall be filed within 30 days after the entry of the

order from which the appeal is taken.” Pa.R.A.P. 903(a). Time limitations

on the taking of appeals are strictly construed and cannot be extended as a

matter of grace. Commonwealth v. Perez, 799 A.2d 848, 851 (Pa. Super.

2002) (citing Commonwealth v. Hottinger, 537 A.2d 1, 3 (Pa. Super.

1987)).


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      However, pursuant to the “prisoner mailbox rule,” the notice of appeal

is considered filed on the date it is delivered to prison authorities for mailing.

See Commonwealth v. Wilson, 911 A.2d 942, 944 (Pa. Super. 2006)

(recognizing that under the “prisoner mailbox rule,” a document is deemed

filed when placed in the hands of prison authorities for mailing). Under that

rule, “we are inclined to accept any reasonably verifiable evidence of the

date that the prisoner deposits the appeal with the prison authorities ….”

Perez, 799 A.2d at 851 (quoting Commonwealth v. Jones, 700 A.2d 423,

426 (Pa. 1997)).

      We note that our review of the certified record reflects that Appellant’s

pro se notice of appeal was time stamped and docketed by the PCRA court

on March 20, 2015, which is one day beyond the thirty-day appeal period

that expired on March 19, 2015. In addition, the certified record includes a

second copy of Appellant’s notice of appeal, which was sent to this Court and

was time stamped as received on March 20, 2015 and subsequently

forwarded to the PCRA court. Also, the record includes a mailing envelope

from Appellant to this Court with a postage date of March 18, 2015.           We

further observe that Appellant, who is incarcerated, dated his notices of

appeal March 12, 2015. Likewise, Appellant’s two certificates of service are

dated March 12, 2015.       Accordingly, we conclude that, pursuant to the

prisoner mailbox rule, Appellant timely filed his notice of appeal.




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      In his first issue, Appellant argues that the PCRA court erred by failing

to appoint counsel to represent him during the PCRA proceedings.

Appellant’s Brief at 8-10.    Specifically, he contends that, because he is

indigent and requested appointment of counsel to assist with his first PCRA

petition, the PCRA court, pursuant to Pennsylvania Rule of Criminal

Procedure 904(c), was obligated to fulfill his request.     Id. at 9.    We are

constrained to agree.

      It is well-settled that indigent petitioners are entitled to representation

by counsel for a first petition filed under the PCRA.      Commonwealth v.

Evans, 866 A.2d 442, 444-446 (Pa. Super. 2005).          A petitioner’s right to

counsel under the PCRA is established by Pa.R.Crim.P. 904 which provides,

in pertinent part, that, “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.”    Pa.R.Crim.P. 904(C)

(emphasis added).       The official comment to Rule 904 explains that,

“Consistent with Pennsylvania post-conviction practice, it is intended that

counsel be appointed in every case in which a defendant has filed a petition

for post-conviction collateral relief for the first time and is unable to afford

counsel or otherwise procure counsel.” Id. at comment (emphasis added).

      A first-time PCRA petitioner who indicates that he is unable to afford

counsel is entitled to representation even where his petition is facially


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untimely.    Commonwealth v. Stossel, 17 A.3d 1286, 1288 (Pa. Super.

2011). See also Commonwealth v. Smith, 818 A.2d 494, 499, 501 (Pa.

2003) (concluding that indigent first-time PCRA petitioner is entitled to

appointment of counsel during PCRA proceedings in order to determine

whether petition is time-barred, whether or not PCRA court ultimately

concludes that petition is untimely).     Moreover, this Court has stated the

following:

              [T]he denial of PCRA relief to an indigent first-time
       petitioner cannot stand unless the petitioner was afforded the
       assistance of counsel. An indigent first-time petitioner is
       entitled to counsel to represent him despite any apparent
       untimeliness     of    the   petition    or   the    apparent
       noncognizability of the claims presented. We will not hold
       an indigent pro se petitioner responsible for presenting a
       cognizable claim for relief until, pursuant to Rule 904[(C)],
       petitioner has been given the opportunity to be represented by
       appointed counsel.

Commonwealth v. Price, 876 A.2d 988, 993 (Pa. Super. 2005) (quotation

marks and citations omitted) (emphasis added). In addition, a PCRA court

may not first evaluate the merits of a petition, and then deny the

appointment of counsel because the petition lacks merit. Evans, 866 A.2d

at 445.

       Here, our review of the certified record reflects that Appellant filed his

first petition for PCRA relief acting pro se, averred a lack of resources to hire

an attorney, and requested the PCRA court to appoint counsel to represent

him.   PCRA Petition, 2/17/15, at 8.      The PCRA court ignored Appellant’s

request, moved forward with the proceedings, and ultimately determined

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that the PCRA petition was untimely.     Because the PCRA court did not

appoint counsel to represent Appellant in this first PCRA petition, we are

constrained to vacate the order dismissing Appellant’s PCRA petition. Hence,

we remand this case to the PCRA court to appoint counsel to represent

Appellant on his PCRA petition and further proceedings as are appropriate

under the PCRA. Pa.R.Crim.P. 904(C); Evans, 866 A.2d at 444-446; Price,

876 A.2d at 993.

     Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/10/2016




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