J-S39025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

JOVON JAVAR DESHIELDS,

                            Appellee                 No. 1768 MDA 2015


                  Appeal from the PCRA Order October 6, 2015
                  in the Court of Common Pleas of York County
               Criminal Division at Nos.: CP-67-CR-0002392-2012
                            CP-67-CR-0002393-2012
                            CP-67-CR-0006613-2010


BEFORE: STABILE, J., PLATT, J.*, and STRASSBURGER, J.*

MEMORANDUM BY PLATT, J.:                                 FILED JUNE 06, 2016

        The Commonwealth appeals from the order granting the petition filed

by Appellee, Jovon Javar DeShields, pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. The PCRA court’s order vacated its

prior decision denying Appellee’s petition, and reinstated his right to file a

petition for allowance of appeal with the Pennsylvania Supreme Court nunc

pro tunc. We affirm.

        The PCRA court aptly set forth the background facts and procedural

history of this matter in its October 6, 2015 opinion.

              [Appellee] was convicted of attempted murder, two counts
        of aggravated assault, possession of a firearm by a minor, and
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S39025-16


     carrying a firearm without a license following a jury trial on June
     20, 2012. [He] was sentenced to twelve to twenty-four years[’]
     incarceration, followed by five years [of] probation on other
     charges. [Appellee’s] trial attorney was Ronald Gross, Esquire
     (“Gross”). Gross filed post-sentencing motions and a timely
     appeal to the Superior Court.         [Appellee’s] sentence was
     affirmed by the Superior Court on April 19, 2013.             [(See
     Commonwealth v. DeShields, 75 A.3d 559 (Pa. Super. 2013)
     (unpublished memorandum)).] Gross did not file a petition for
     allowance of appeal to the Pennsylvania Supreme Court, which
     forms the basis of the instan[t] PCRA.

           [The PCRA c]ourt held a hearing on the PCRA [petition] on
     August 11, 2015. At the hearing, Gross testified that he had an
     oral agreement with [Appellee’s] family to file the Superior Court
     appeal, which was not reduced to writing. When [Appellee’s]
     sentence was affirmed by the Superior Court, Gross wrote to
     [him] on April 19, 2013, notifying him of the affirmance and
     stated:

           Unfortunately the Superior Court denied your appeal
           so you are stuck doing the time. The next step in the
           appeal could be the request to the Supreme Court to
           hear the case but the chances [of] that occurring are
           slim based [on] the Superior Court already affirming
           the conviction and there is not a dispute in the law
           about the issue raised.

           The letter did not address whether or not Gross was
     actually going to file the discretionary appeal; did not notify
     [Appellee] that he had thirty days to file it if Gross was not
     continuing to represent him; nor that [Appellee] could apply for
     a public defender to pursue the appeal if Gross did not continue
     representation. This letter was Gross’ last direct communication
     with [Appellee].[a] [Appellee] assert[ed at the hearing] that he
     wanted to continue the appeal process and believed that Gross
     would pursue the petition for allowance.
           [a]
              [Appellee] was seventeen years old when he was
           tried as an adult, and was eighteen years old when
           he received this communication from [] Gross.

           During the thirty-day window in which the petition for
     allowance could have been filed, Gross testified that he spoke to
     [Appellee’s] family every other week. Although having regular
                                   -2-
J-S39025-16


     contact with [Appellee’s] family, Gross could not recall whether
     or not he notified the family that he would not be filing the
     petition of allowance. A few months later, [Appellee’s] [m]other
     contacted Gross to follow up on the status of the appeal. Gross
     notified [her] that the time to [file] the petition had passed and
     the appellate right was lost. The thirty-day window to file the
     petition for allowance closed on May 19, 2013.

            On September 9, 2013, [Appellee] filed a [pro se] petition
     to reinstate his appellate rights, nunc pro tunc, raising the issue
     of ineffective assistance of counsel based on Gross’s failure to
     file the petition for allowance. [Appellee] aver[red] that [thirty]
     [days] after filing the petition, the [p]rothonotary informed
     Gross about it as Gross was still listed as attorney of record.
     Gross took no action on the petition. On December 30, 2013,
     [Appellee] again filed the same petition with the [c]ourt. The
     next day, Gross filed a petition to withdraw as counsel. The
     [c]ourt granted leave to withdraw on January 8, 2014.

            [Appellee] . . . again re-filed the [pro se] petition on
     January 22, 201[4]. The [c]ourt denied the petition by [o]rder
     dated May 7, 2014, without appointing PCRA counsel or notifying
     [Appellee] of the dismissal pursuant to Pa.R.Crim.P. 907.
     [Appellee] did not appeal the May 7, 2014 [o]rder.
     Approximately seven months later, private counsel, Mark K.
     McCullough, Esquire, (“PCRA counsel”) enter[ed] his appearance
     on [Appellee’s] behalf and filed [a] counseled [untimely] PCRA to
     [r]einstate [a]ppellate [r]ights on December 22, 2014. PCRA
     counsel raise[d] the same arguments as [Appellee’s] January 22,
     2014 [pro se] petition, i.e., that Gross was ineffective for failing
     to file for discretionary review.     PCRA counsel also filed a
     “[s]upplement” to the PCRA [petition] on June 4, 2015,
     reiterating similar arguments, and now linking them with Gross’s
     temporary suspension from the practice of law, which occurred
     during the pendency of the instant PCRA.

           After the PCRA hearing, the [c]ourt provided the parties
     time to supplement their legal argument, specifically addressing
     whether the [c]ourt has jurisdiction to rule on [a] facially
     untimely PCRA. . . .

(PCRA Court Opinion, 10/06/15, at 1-4) (most footnotes omitted).            On

October 6, 2015 the PCRA court vacated its May 12, 2014 order denying


                                    -3-
J-S39025-16


Appellee’s January 22, 2014 petition on the basis that it had failed to appoint

PCRA counsel, and it granted Appellee’s PCRA petition for leave to appeal to

the Pennsylvania Supreme Court nunc pro tunc. The Commonwealth timely

appealed.1

       The Commonwealth raises two questions for our review.

       I.     Whether the [PCRA] court lacked jurisdiction on October 6,
              2015 to reinstate [Appellee’s] allocatur rights for his direct
              appeal where [Appellee’s] instant PCRA petition was
              jurisdictionally untimely?

       II.    [Whether] the PCRA court erred in vacating the final-
              unappealed order denying [Appellee’s] first timely PCRA
              petition over a year after it was issued, in a subsequent
              untimely PCRA petition[?]

(Commonwealth’s Brief, at 4) (unnecessary capitalization omitted).

              This Court examines PCRA appeals in the light most
       favorable to the prevailing party at the PCRA level. Our review
       is limited to the findings of the PCRA court and the evidence of
       record[.] Additionally, [w]e grant great deference to the factual
       findings of the PCRA court and will not disturb those findings
       unless they have no support in the record. In this respect, we
       will not disturb a PCRA court’s ruling if it is supported by
       evidence of record and is free of legal error. However, we afford
       no deference to its legal conclusions. [W]here the petitioner
       raises questions of law, our standard of review is de novo and
       our scope of review is plenary.



____________________________________________


1
  On November 2, 2015, the Commonwealth filed a timely statement of
errors complained of on appeal pursuant to the court’s order. See Pa.R.A.P.
1925(b). The PCRA court filed an opinion on November 6, 2015 in which it
relied on the reasons stated in its October 6, 2015 opinion. See Pa.R.A.P.
1925(a).



                                           -4-
J-S39025-16


Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014), appeal

denied, 101 A.3d 785 (Pa. 2014) (citations and quotation marks omitted).

      It is well-settled that:

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration
      of the time for seeking such review.             42 Pa.C.S.[A.] §
      9545(b)(3).        The PCRA’s timeliness requirements are
      jurisdictional; therefore, a court may not address the merits of
      the issues raised if the petition was not timely filed.       The
      timeliness requirements apply to all PCRA petitions, regardless of
      the nature of the individual claims raised therein. The PCRA
      squarely places upon the petitioner the burden of proving an
      untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).

      In the case sub judice, Appellee’s judgment of sentence became final

on May 19, 2013, thirty days after we affirmed his judgment of sentence,

and no petition for allowance of appeal was filed in the Pennsylvania

Supreme Court.     See 42 Pa.C.S.A. § 9545(b)(3).     Therefore, he had one

year from that date to file a petition for collateral relief unless he pleaded

and proved that a timeliness exception applied.        See 42 Pa.C.S.A. §§

9545(b)(1)(i)-(iii).   Hence, Appellant’s current petition, filed on December

22, 2014, is untimely on its face, and we lack jurisdiction to consider its

merits, unless he pleads and proves one of the statutory exceptions to the

time-bar.

                                     -5-
J-S39025-16


     Here, Appellee did not plead any timeliness exception in his PCRA

petition; nor does he argue their applicability before this Court. (See PCRA

Petition, 12/22/14, at unnumbered pages 1-5; Appellee’s Brief, at 6-12).

Instead, he maintains that the PCRA court properly treated his untimely

petition as an amendment to his previously filed timely pro se petition. (See

Appellee’s Brief, at 6; PCRA Ct. Op., at 7-8). We agree.

            Pennsylvania law vests PCRA courts “with discretion to
     permit the amendment of a pending, timely-filed post-conviction
     petition....” Commonwealth v. Flanagan, 578 Pa. 587, 605,
     854 A.2d 489, 499 (2004).

                  [T]he prevailing rule remains simply that
           amendment is to be freely allowed to achieve
           substantial justice. The [Pennsylvania Supreme]
           Court has recognized that adherence to such rules
           governing post-conviction procedure is particularly
           appropriate since, in view of the PCRA’s time
           limitations, the pending PCRA proceeding will most
           likely comprise the petitioner’s sole opportunity to
           pursue collateral relief in state court.

     Id. at 605, 854 A.2d at 500 (emphasis added) (internal citations
     omitted). In the absence of a final ruling on a timely-filed first
     PCRA petition, another petition for post-conviction relief can be
     considered an amended first timely petition.                 See
     Commonwealth v. Williams, 573 Pa. 613, 828 A.2d 981
     (2003) (holding pro se petitioner’s subsequent PCRA petitions
     constituted amendments to timely-filed first petition; although
     petitioner filed pro se motion to withdraw first PCRA petition,
     court took no action on motion; thus, motion to withdraw first
     PCRA petition was without effect, first PCRA petition remained
     valid, and court could not find subsequent PCRA petitions
     untimely).

          Nevertheless, the PCRA also provides for the dismissal of a
     properly filed petition under certain circumstances:

           § 9543. Eligibility for relief

                                    -6-
J-S39025-16


                                          ***

              (b) Exception.—Even if the petitioner has met the
              requirements of subsection (a), the petition shall be
              dismissed if it appears at any time that, because of
              delay in filing the petition, the Commonwealth has
              been prejudiced either in its ability to respond to the
              petition or in its ability to re-try the petitioner. . . .

       42 Pa.C.S.A. § 9543(b). Recently, our Supreme Court held that
       Section 9543(b) applies to delays in the filing of original or
       amended PCRA petitions[.          See Commonwealth v.
       Renchenski, 52 A.3d 251, 259 (Pa. 2012).2]

Commonwealth v. Swartfager, 59 A.3d 616, 619 (Pa. Super. 2012)

(emphasis in original); see also Pa.R.Crim.P. 905(A).

       Here, the court vacated its May 12, 2014 order denying Appellee’s pro

se first PCRA petition on the basis that it had failed to determine whether
____________________________________________


2
  The Commonwealth relies on Renchenski in support of its argument that
the court erred in treating the December 22, 2014 PCRA petition as an
amendment of the timely filed pro se first PCRA petition because “the
timeliness of amended PCRA petitions and nunc pro tunc petitions should be
determined using the date of the subsequent filings, not the date the original
PCRA petition was filed.” (Commonwealth’s Brief, at 14 (citation omitted)).
The Commonwealth’s reliance is not legally persuasive. In Renchenski, the
Pennsylvania Supreme Court allowed an appeal “to address the applicability
of Section 9543(b) of the [PCRA] to delays in filing amended post-conviction
petitions and the related issue of what obligation, if any, a petitioner has to
move the litigation of his petition forward.” Rechenski, supra at 251. The
Court concluded, in relevant part, that Section 9543(b) applies to both
original and amended PCRA petitions and that, therefore, “in certain
instances of substantial delay, the prejudice suffered by the
Commonwealth as a result of that delay, as demonstrated at an
evidentiary hearing, justifies dismissal of an original or amended petition.”
Id. at 260 (emphasis added). This is not applicable here where the requests
for PCRA relief were filed less than a year apart, and the Commonwealth
does not allege prejudice as the result of the delay. (See Commonwealth’s
Brief, at 14-19).



                                           -7-
J-S39025-16


Appellee was entitled to the appointment of counsel pursuant to Rule 904(C)

of the Pennsylvania Rules of Criminal Procedure. (See PCRA Ct. Op., at 7-8,

10); see also Commonwealth v. Stossel, 17 A.3d 1286, 1288 (Pa. Super.

2011) (observing that “right to counsel unconditionally attaches[]” to first-

time PCRA petitioner because, “[w]ithout the input of an attorney, important

rights and defenses may be forever lost.”) (citation omitted); Pa.R.Crim.P.

904(C).     Therefore, there was no longer a final order on Appellee’s first

PCRA petition.     The court then treated the counseled December 22, 2014

PCRA petition as an amendment to the timely filed, pro se first PCRA petition

pursuant to Swartfager, which the Commonwealth does not argue

prejudiced it, and we fail to see how it could in these circumstances. (See

Commonwealth’s Brief, at 14-19).

      Therefore,    because   “the   prevailing   rule   remains   simply   that

amendment is to be freely allowed to achieve substantial justice,” and the

Commonwealth has not been prejudiced, we conclude that the PCRA court

properly exercised its discretion in treating Appellee’s second PCRA as an

amendment of his first, timely filed request for relief where its order denying

the petition had been vacated.        Swartfager, supra at 619 (citation

omitted).    The Commonwealth’s first issue does not merit relief.          See

Henkel, supra at 20.

      In its second issue, the Commonwealth argues that “the PCRA court

erred in vacating the final-unappealed order denying [Appellee’s] first timely


                                     -8-
J-S39025-16


PCRA petition over a year after it was issued[.]” (Commonwealth’s Brief, at

20) (unnecessary capitalization omitted). We disagree.

       Pursuant to 42 Pa.C.S.A. § 5505, a court may modify or rescind its

orders within thirty days of their being entered if no appeal has been taken.

See 42 Pa.C.S.A. § 5505.      However, “[a] trial court’s inherent power of

correction” extends beyond thirty days where there are “patent and obvious

errors that appear on the face of an order, [and] extends to such errors that

emerge upon consideration of information in the contemporaneous record.”

Commonwealth v. Borrin, 80 A.3d 1219, 1228 (Pa. 2013) (citation

omitted).

       In this case, the PCRA court vacated its May 12, 2014 order dismissing

Appellee’s PCRA petition to correct its error of failing to determine first if

Appellee was entitled to the appointment of counsel. (See PCRA Ct. Op., at

7).    We conclude that this was appropriate in light of the importance we

attach to the right of a first time PCRA petitioner to assistance of counsel.

See Borrin, supra at 1228.

       The right to counsel in the PCRA setting is a rule-based and important

one.    See Stossel, supra at 1288.     Pursuant to Rule 904(C), “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). Further:


                                    -9-
J-S39025-16


           While the right to legal representation in the PCRA context
     is not constitutionally derived, the importance of that right
     cannot be diminished merely due to its rule-based derivation. In
     the post-conviction setting, the defendant normally is seeking
     redress for trial counsel’s errors and omissions. Given the
     current time constraints of 42 Pa.C.S.[A.] § 9545, a defendant’s
     first PCRA petition, where the rule-based right to counsel
     unconditionally attaches, may well be the defendant’s sole
     opportunity to seek redress for such errors and omissions.
     Without the input of an attorney, important rights and
     defenses may be forever lost.

                                 *     *      *

     . . . [T]he denial of PCRA relief cannot stand unless the
     petitioner was afforded the assistance of counsel. . . . Thus, we
     hold that where an indigent, first-time PCRA petitioner was
     denied his right to counsel—or failed to properly waive that
     right—this Court is required to raise this error sua sponte and
     remand for the PCRA court to correct that mistake.

Stossel, supra at 1288, 1290 (citations and quotation marks omitted)

(some emphases added; some emphasis in original).

     The Commonwealth argues that Appellee’s failure to appeal the denial

of his pro se PCRA petition resulted in waiver of any issues addressed by the

court’s order, which necessarily would include his request to appeal nunc pro

tunc and the court’s failure to appoint PCRA counsel. (See Commonwealth’s

Brief, at 18-19).   However, Appellee’s procedural misstep is precisely the

type of situation the Rules of Criminal Procedure seek to avoid by requiring

the appointment of PCRA counsel for a first petition. See Stossel, supra at

1288. Therefore, under the circumstances present here, we decline to find

that any challenge to the denial of Appellee’s pro se petition is waived for




                                     - 10 -
J-S39025-16


review where he was not afforded his right to a hearing on whether he was

entitled to the appointment of counsel. See id. at 1290.

       Hence, based on the importance the Courts of this Commonwealth

place on the appointment of counsel to first time indigent PCRA petitioners,

we conclude that the court exercised its inherent power to correct its “patent

and obvious error” of denying Appellee’s pro se petition without first

considering this right. Borrin, supra at 1228 (citation omitted). Therefore,

the court properly vacated its order.          The Commonwealth’s second issue

does not merit relief.3 See Henkel, supra at 20.

       Order affirmed.

       Judge Strassburger joins the Memorandum.

       Judge Stabile concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2016



____________________________________________


3
  The Commonwealth does not argue that the court improperly found that
trial counsel was ineffective for failing to file a petition for allowance of
appeal. (See Commonwealth’s Brief, at 14-19). Therefore, we need not
address the court’s conclusion on the petition’s merits.



                                          - 11 -
