J. S10041/20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                    v.                      :
                                            :
JEREMIAS SANCHEZ-CLASS,                     :        No. 1277 MDA 2019
                                            :
                         Appellant          :


               Appeal from the PCRA Order Entered July 9, 2019,
                in the Court of Common Pleas of Luzerne County
               Criminal Division at No. CP-40-CR-0000577-2016


BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JUNE 16, 2020

        Jeremias Sanchez-Class appeals from the July 9, 2019 order entered by

the Court of Common Pleas of Luzerne County denying, without a hearing, his

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

42 Pa.C.S.A. §§ 9541-9546.           PCRA counsel has also filed a petition to

withdraw. After careful review, we vacate the PCRA court’s order, deny PCRA

counsel’s petition to withdraw, and remand for further proceedings.

        Appellant pleaded guilty to one count each of burglary and theft by

unlawful taking1 on September 19, 2016. On December 2, 2016, the trial

court sentenced appellant to 18-36 months’ imprisonment. Appellant did not

file any post-sentence motions, nor did he seek a direct appeal with this court.




1   18 Pa.C.S.A. §§ 3502(a)(2) and 3921(a), respectively.
J. S10041/20

        On February 17, 2017 and May 18, 2017, appellant filed pro se petitions

for credit for time served pursuant to 42 Pa.C.S.A. § 9760. No action was

taken on these petitions. On May 16, 2019, appellant filed a pro se PCRA

petition.2 The PCRA court entered a notice of intention to dismiss appellant’s

PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907 on June 12,

2019, to which appellant did not file a response. On July 9, 2019, the PCRA

court dismissed appellant’s petition without a hearing. Appellant filed a timely

pro se notice of appeal on July 30, 2019.       The PCRA court did not order

appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). On September 25, 2019, the PCRA court filed

an opinion pursuant to Pa.R.A.P. 1925(a).

        On October 1, 2019, we entered a per curiam order directing the PCRA

court to determine whether appellant was eligible to have appellate counsel

appointed.     Following a hearing on October 25, 2019, the PCRA court

appointed Matthew P. Kelly, Esq., to represent appellant. On December 12,

2019, Attorney Kelly filed a “no-merit Turner/Finley brief”3 and a petition to

withdraw as counsel.4


2 Appellant’s pro se PCRA petition does not address any credit for time served
issues.

3   The Commonwealth did not submit a brief in this matter.

4  We note that Attorney Kelly’s no-merit brief complies with the directives of
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). On collateral review, the appropriate
filing is a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d


                                      -2-
J. S10041/20

      On January 7, 2020, we entered a per curiam order noting that while

Attorney Kelly complied with the procedural requirements of Turner and

Finley, he failed to attach a letter advising appellant of his right to

immediately proceed pro se or with a private attorney pursuant to Widgins,

29 A.3d at 818 (applying Commonwealth v. Friend, 896 A.2d 607, 614

(Pa.Super. 2006), abrogated on other grounds, Commonwealth v. Pitts,

981 A.2d 875 (Pa. 2009)).       Our order directed Attorney Kelly to notify

appellant of his rights and file a copy of the notification with this court.

Attorney Kelly complied with our order, filing a copy of the letter he sent to

appellant notifying him of his rights on January 10, 2020. Appellant has not

filed a response.

      The PCRA requires that any petition for collateral relief be filed within

one year of the date that the judgment of sentence becomes final.

42 Pa.C.S.A. § 9545(b)(1). “[A] judgment 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.” Commonwealth v. Callahan, 101 A.3d 118,

122 (Pa.Super. 2014), quoting 42 Pa.C.S.A. § 9545(b)(3).




927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.
1988) (en banc). Because an Anders brief provides more protection to a
defendant, we will accept Attorney Kelly’s brief in lieu of a no-merit letter.
Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa.Super. 2011), citing
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004),
appeal denied, 882 A.2d 477 (Pa. 2005).


                                     -3-
J. S10041/20

      Here, appellant’s judgment of sentence became final on January 1,

2017, following the conclusion of the period in which appellant could have filed

a notice of appeal for direct appellate review by this court.                See

Pa.R.A.P. 903(a). Appellant filed the instant PCRA petition on May 16, 2019—

over two years after his judgment of sentence became final and over one year

after a PCRA petition could be considered timely.            See 42 Pa.C.S.A.

§ 9545(b)(1). Accordingly, appellant’s petition is facially untimely.

      Before we can determine whether we have jurisdiction to consider the

merits of appellant’s appeal, we must first determine whether appellant was

properly afforded counsel pursuant to Pennsylvania Rule of Criminal

Procedure 904.    Rule 904 requires the PCRA court to appoint counsel to

represent a petitioner who is unable to afford or otherwise procure counsel for

his first petition for PCRA relief. Pa.R.Crim.P. 904(C).

      In the context of appointing counsel for a petitioner’s first PCRA petition,

it is of no import that appellant’s petition was untimely. Indeed, our supreme

court held that, “an indigent petitioner, who files his first PCRA petition, is

entitled to have counsel appointed to represent him during the determination

of whether any of the exceptions to the one-year time limitation apply.”

Commonwealth v. Smith, 818 A.2d 494, 499 (Pa. 2003). The Smith court

noted its agreement with this court’s holding in Commonwealth v.

Ferguson, 722 A.2d 177, 178 (Pa.Super. 1998), which stated that the PCRA

time-bar enumerated in Section 9545 “must yield” to the rule-based right to



                                      -4-
J. S10041/20

counsel for first-time PCRA petitioners under Rule 904.     Smith, 818 A.2d

at 500, citing Ferguson, 722 A.2d at 178.

      Here, the record reflects that the PCRA court did not appoint counsel to

represent appellant at the time appellant filed the May 16, 2019 petition.

Further, the record does not reflect that appellant ever waived his right to

counsel.

      Accordingly, we vacate the PCRA court’s order dismissing appellant’s

PCRA petition and deny Attorney Kelly’s petition to withdraw. We remand for

Attorney Kelly to either file an amended PCRA petition on appellant’s behalf

or to file a no-merit letter with the PCRA court pursuant to Turner/Finley.

      Order vacated.         Petition to withdraw denied.   Case remanded.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/16/2020




                                      -5-
