J-S66023-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellee         :
                                        :
           v.                           :
                                        :
ALEXI SANTIO DELMORAL,                  :
                                        :
                       Appellant        :     No. 2140 MDA 2013


          Appeal from the PCRA Order Entered November 4, 2013,
             In the Court of Common Pleas of Dauphin County,
            Criminal Division, at No. CP-22-CR-0001140-2011.


BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED DECEMBER 29, 2014       Appell

the reasons that follow, we vacate and remand for further proceedings.

     Following a jury trial, Appellant was convicted of one count of

aggravated assault (“AA”), one count of recklessly endangering another

person (“REAP”), and two counts of persons not to possess a firearm.

Appellant was sentenced on June 22, 2011. Appellant filed a direct appeal

and this Court affirmed the judgment of sentence on June 8, 2012.

Commonwealth v. Delmoral, 1500 MDA 2011, 53 A.3d 926 (Pa. Super.

filed June 8, 2012) (unpublished memorandum). No petition for allowance

of appeal to the Pennsylvania Supreme Court was filed.

     Appellant, pro se, filed a PCRA petition on September 14, 2012.

Counsel was appointed and filed an amended PCRA petition on November
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16, 2012, seeking reinstatement of Appellant’s direct appeal rights. Petition

for Relief Pursuant to the Post Conviction Relief Act, 11/16/12, at 3.        By

order dated December 4, 2012, the PCRA court reinstated Appellant’s right

to file a petition for allowance of appeal, nunc pro tunc.     Appellant filed a

petition for allowance of appeal on January 2, 2013, and on May 14, 2013,

the Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal. Commonwealth v. Delmoral, 67 A.3d 793 (Pa. 2013).

        On September 19, 2013, Appellant filed the instant PCRA petition pro

se.     On November 4, 2013, the PCRA court issued an order denying

Appellant’s petition on the basis that “all of the claims that [Appellant] raised

have been previously litigated in his first Petition for Post Conviction Relief.”

PCRA Court Opinion, 11/4/13.         Appellant filed a notice of appeal on

December 2, 2013. Both Appellant and the PCRA court complied with the

dictates of Pa.R.A.P. 1925.

        The Superior Court, by order filed February 28, 2014, granted

Appellant’s application for appointment of counsel on the basis that

Appellant was an indigent first time PCRA petitioner.1         The PCRA court




1
    The order provided as follows:

              Upon consideration of appellant’s pro se application for
        appointment of counsel, filed February 28, 2014, the application
        is hereby GRANTED as follows:



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complied with that order and appointed current counsel to represent

Appellant on the instant appeal. PCRA court order, 3/27/14.

      Appellant presents the following issue for our review:

      Did the trial court err in denying Appellant’s request for relief
      under the Post Conviction Relief Act by concluding that Appellant
      had previously litigated the claims brought in said request for
      relief when Appellant was never given the opportunity to fully
      develop his arguments?

Appellant’s Brief at 4.

      Although not raised by the parties, we nevertheless address the

timeliness of the instant PCRA petition as it is jurisdictional in nature.   A

PCRA petition must be filed within one year of the date that the judgment of

sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time requirement is

mandatory and jurisdictional in nature, and the court may not ignore it in

order to reach the merits of the petition. Commonwealth v. Cintora, 69



            Within 30 days of the date of this order, the trial court
      shall appoint new counsel and notify this Court of its
      determination. See Commonwealth v. Quail, 729 A.2d 571
      (Pa. Super. 1999)(indigent first-time PCRA petitioner is entitled
      to representation by counsel).        Immediately upon being
      appointed, counsel shall enter his or her appearance in this
      Court.

            The Prothonotary is directed to forward copies of this order
      to the trial court.

                                                               Per Curiam

Commonwealth v. Delmoral, 2140 MDA 2013 (Pa. Super. filed February
28, 2014)(order).

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A.3d 759, 762 (Pa. Super. 2013) (citing Commonwealth v. Murray, 753

A.2d 201, 203 (Pa. 2000)). A judgment of sentence “becomes final at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

        However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.2 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).      In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

2
    The exceptions to the timeliness requirement are:

        (i)    the failure to raise the claim previously was the result of
        interference by government officials with the presentation of the
        claim in violation of the Constitution or laws of this
        Commonwealth or the Constitution or laws of the United States;

        (ii)  the facts upon which the claim is predicated were unknown
        to the petitioner and could not have been ascertained by the
        exercise of due diligence; or

        (iii) the right asserted is a constitutional right that was
        recognized by the Supreme Court of the United States or the
        Supreme Court of Pennsylvania after the time period provided in
        this section and has been held by that court to apply
        retroactively.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).


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specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,

1167 (Pa. Super. 2001).

      Because the PCRA court reinstated Appellant’s direct appeal right to

file an allowance of appeal nunc pro tunc, in response to Appellant’s PCRA

petition filed November 16, 2012, Appellant’s instant petition is considered

his first PCRA petition. “[W]hen a PCRA petitioner’s direct appeal rights are

reinstated nunc pro tunc in his first PCRA petition, a subsequent PCRA

petition will be considered a first PCRA petition for timeliness purposes.”

Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 2013).             See

also Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007)

(quoting Commonwealth v. O’Bidos, 849 A.2d 243, 252 n.3 (Pa. Super.

2004)) (“It is now well[-]established that a PCRA petition brought after an

appeal nunc pro tunc is considered [an] appellant’s first PCRA petition, and

the one year time clock will not begin to run until this appeal nunc pro tunc

renders his judgment of sentence final.”).    Thus, Appellant’s instant PCRA

petition, filed September 19, 2013, is his first. Indeed, this Court previously

deemed Appellant’s instant petition to be Appellant’s first PCRA petition.

Commonwealth v. Delmoral, 2140 MDA 2013 (Pa. Super filed February

28, 2014) (order directing the trial court to appoint counsel for Appellant

because he was an indigent, first-time PCRA petitioner.).




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      The record reflects that, after Appellant filed his petition for allowance

of appeal, the Pennsylvania Supreme Court denied that petition on May 14,

2013. Commonwealth v. Delmoral, 67 A.3d 793 (Pa. 2013). Accordingly,

Appellant’s judgment of sentence became final on August 12, 2013, ninety

days after the Pennsylvania Supreme Court denied allocatur and the time

expired for Appellant to file an appeal with the United States Supreme Court.

42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. R. 13. Appellant had one year from

the date that judgment became final, or until August 12, 2014, to timely file

a PCRA petition. Appellant filed the instant PCRA petition on September 19,

2013. Thus, Appellant’s September 19, 2013 PCRA petition is timely.

      Because Appellant’s instant PCRA petition is timely, a review of the

merits of the petition is warranted.    Appellant argues that the PCRA court

erred in denying him relief under his current PCRA petition on the basis that

his claims were previously litigated in his initial PCRA petition. Appellant’s

Brief at 13. Appellant maintains that ineffective assistance of trial counsel

“so undermined the truth-determining process that no reliable adjudication

of guilt or innocence could have taken place.” Id. at 14. Appellant contends

that trial counsel was ineffective for the following reasons:

      1) for failing to object [to] irrelevant evidence elicited by the
      Commonwealth; 2) for failing to sufficiently cross-examine
      witnesses regarding previous statements made by the
      witnesses; and 3) failing to argue against imposition of the
      mandatory term of imprisonment under 42 Pa.C.S.A § 9714.




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Id. at 15.    The PCRA court erred, according to Appellant, in denying his

instant PCRA petition because these issues have not been previously

litigated or waived. Id.

      The Commonwealth agrees with Appellant’s assertion that the PCRA

court erred in denying Appellant’s instant PCRA petition on the basis that the

claims contained therein had been previously litigated. The Commonwealth

filed a letter with this Court indicating that it did not intend to file a brief in

this case because it concurs with Appellant’s assertion that the PCRA court

erred in dismissing Appellant’s petition without addressing the merits

therein.   Letter from Deputy District Attorney, Joseph P. Cardinale, Jr.,

9/10/14, at 1.

      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 Carr, 768 A.2d at 1166).

      To qualify for relief under the PCRA, an appellant must establish,
      by a preponderance of the evidence, that his conviction or
      sentence resulted from one or more of the enumerated errors in
      42 Pa.C.S.A. § 9543(a)(2); that his claims have not been
      previously litigated or waived; and that the failure to litigate the
      issue prior to or during trial or on direct appeal could not have


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      been the result of any rational, strategic, or tactical decision by
      counsel. Id. § 9543(a)(3), (a)(4). An issue is previously
      litigated if “the highest appellate court in which [the appellant]
      could have had review as a matter of right has ruled on the
      merits of the issue.” Id. § 9544(a)(2). An issue is waived if the
      appellant “could have raised it but failed to do so before trial, at
      trial, during unitary review, on appeal or in a prior state
      postconviction proceeding.” Id. § 9544(b).

Commonwealth v. Bomar, __ A.3d __, __, 2014 WL 6608963 at *4 (Pa.

2014) (November 21, 2014).

      As noted and for reasons outlined above, we have determined that

Appellant’s instant PCRA petition is his first. Additionally, we conclude that

Appellant’s claims have not been previously litigated.        Because the PCRA

court granted Appellant’s previous PCRA petition by reinstating Appellant’s

direct appeal right to file an allowance of appeal, this Court, which is the

highest appellate court in which Appellant could have had review as a matter

of right, did not have an opportunity to review the merits of the claims in

Appellant’s previous PCRA petition.    See 42 Pa.C.S. § 9544(a)(2) (stating

that an issue is previously litigated if “the highest appellate court in which

the petitioner could have had review as a matter of right has ruled on the

merits of the issue.”) Accordingly, we are constrained to conclude that the

merits of Appellant’s claims, that trial counsel was ineffective, have not been

previously litigated. Therefore, the PCRA court erred in denying Appellant’s

instant PCRA petition on the basis that the claims contained therein were

previously litigated in Appellant’s previous PCRA petition.


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      Furthermore, because Appellant’s claims in the instant PCRA petition

involve issues of trial counsel’s ineffectiveness, these claims were properly

raised in a collateral petition. In Commonwealth v. Grant, 813 A.2d 726

(Pa. 2002), the Pennsylvania Supreme Court held that a defendant “should

wait to raise claims of ineffective assistance of trial counsel until collateral

review.” Id. at 738. This holding abrogated the rule in Commonwealth v.

Hubbard, 372 A.2d 687 (Pa. 1977), that upon representation by new

counsel, a defendant must raise ineffectiveness claims pertaining to trial

counsel’s performance at the first opportunity.           Commonwealth v.

Thomas, 44 A.3d 12, 16 (Pa. 2012).           Because Appellant’s direct-appeal

proceedings post-dated Grant, the strictures of Grant apply. See Thomas,

44 A.3d at 16. Accordingly, we conclude that Appellant did not waive these

claims by failing to raise them on direct appeal.

      Thus, we agree with Appellant’s and the Commonwealth’s position that

the PCRA court incorrectly denied Appellant’s instant PCRA petition.

Furthermore, because this is Appellant’s first PCRA petition, appointed

counsel shall be afforded the opportunity to file an amended PCRA petition

on Appellant’s behalf.   Pa.R.Crim.P. 904(C).       Accordingly, we vacate the

order below and remand for further proceedings consistent with this

Memorandum.




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      Order vacated. Case remanded for further proceedings.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/29/2014




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