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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                 v.                    :
                                       :
RICKIE JAMES,                          :         No. 2643 EDA 2016
                                       :
                      Appellant        :


            Appeal from the PCRA Order, September 13, 2016,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0013643-2009


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 18, 2018

     Appellant, Rickie James, appeals from the September 13, 2016 order

of the Court of Common Pleas of Philadelphia County denying his first

petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546.    After careful review, we reverse and remand for the

appointment of new counsel.

     The PCRA court provided the following procedural history:

           On May 13, 2010, following a jury trial, [appellant]
           was convicted of attempted murder, aggravated
           assault, carrying firearms without a license, carrying
           firearms on public streets or public property in
           Philadelphia, possessing an instrument of crime and
           person not to possess or control a firearm.[1] He
           received an aggregate sentence of seventeen (17) to
           thirty-four (34) years of imprisonment.

1 18 Pa.C.S.A. §§ 2502, 901(a), 2702(a), 6106(a), 6108, and 6105(a),
respectively.
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          [Appellant’s] post-sentence motion was denied on
          October 13, 2010. On October 15, 2010, [appellant]
          filed a timely notice of appeal, and on October 18,
          2011, the Superior Court affirmed [appellant’s]
          judgments of sentence. [Appellant] did not file a
          petition for allowance of appeal with our Supreme
          Court.

          On March 28, 2013, [appellant] filed a pro se PCRA
          Petition.    J. Matthew Wolfe was subsequently
          appointed to represent [appellant], and on April 22,
          2016, counsel filed a Motion to Withdraw as Counsel
          and a Finley [l]etter, pursuant to Commonwealth
          v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc)
          (establishing the procedure for withdrawal of court-
          appointed counsel from representing a petitioner on
          collateral review). See also Commonwealth v.
          Friend, 896 A.2d 607 (Pa.Super. 2006), abrogated
          by Commonwealth v. Pitts, 981 A.2d 875 (Pa.
          2009). On July 8, 2016, [the PCRA] court issued a
          notice of its intention to dismiss [appellant’s]
          Amended PCRA Petition without a hearing pursuant
          to Pa.R.Crim.P. 907. On July 16, 2016, [appellant]
          prematurely filed a pro se Notice of Appeal.

          On September 13, 2016, after conducting a review of
          the record, evidence, and argument of counsel, this
          court denied [appellant’s] Petition as meritless and
          permitted         counsel         to       withdraw
          representation.[Footnote 3]

               [Footnote 3] The dismissal occurred
               more than twenty days after [appellant]
               was     served   with   notice of   the
               forthcoming dismissal of his PCRA
               petition. Pa.R.Crim.P. 907.

          On December 1, 2016, following Pa.R.A.P. 301(a)(1),
          the Superior Court issued an order directing
          [appellant] to show cause, within ten days of the
          date of the Order’s filing, why the appeal should not
          be quashed as having been taken from a purported
          order which was not entered upon the appropriate


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            docket of the lower court. On December 9, 2016,
            [appellant] timely complied with the Order.

PCRA court opinion, 2/2/17 at 1-3 (citations reformatted, footnotes 1 and 2

omitted).

      On February 14, 2017, this court entered a per curiam order,

referring appellant’s appeal to the panel to decide the merits of the appeal.

      Appellant raises the following issue on appeal:

            Did the Post Conviction Relief Act court error [sic] by
            dismissing appellant’s first PCRA petition as untimely
            when clearly the petition was timely?

Appellant’s brief at 3 (capitalization omitted).

      PCRA petitions are subject to the following standard of review: “as a

general proposition, we review a denial of PCRA relief to determine whether

the findings of the PCRA court are supported by the record and free of legal

error.” Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011) (citation

omitted).

            A PCRA petition . . . must be filed within one year of
            the date that judgment of sentence becomes final.
            42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence
            becomes final for purposes of the PCRA “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.A. § 9545(b)(3). PCRA time limits are
            jurisdictional in nature, implicating a court’s very
            power       to      adjudicate      a      controversy.
            Commonwealth v. Fahy, 558 Pa. 313, 787 A.2d
            214 (1999). Accordingly, the “period for filing a
            PCRA petition is not subject to the doctrine of
            equitable tolling,” instead, the time for filing a PCRA


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              petition can be extended only if the PCRA permits it
              to be extended, i.e., by operation of one of the
              statutorily enumerated exceptions to the PCRA time-
              bar. Id. at 329, 737 A.2d at 222.

Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014), cert. denied, 135

S.Ct. 707 (2014).

      A review of the record indicates that the PCRA court erred when it

stated that appellant did not file a petition for an allowance of appeal with

the Supreme Court of Pennsylvania. Appellant filed an allowance of appeal

with the court, which was denied on February 1, 2012. Commonwealth v.

James, 37 A.3d 1194 (Pa. 2012). Appellant had 90 days from that date to

file a writ of certiorari with the Supreme Court of the United States.

Sup.Ct.R. 13. Appellant did not file a writ of certiorari with the Supreme

Court; accordingly, his judgment of sentence became final on May 1, 2012.

      Appellant filed his PCRA petition within one year of the date his

judgment of sentence became final; therefore, his petition is timely. Upon

review of Attorney Wolfe’s Finley letter, the basis of his finding that

appellant’s   petition   is   without   merit   was   because   it   was   untimely.

Accordingly, we reverse the PCRA court’s order and remand so that new

counsel may be appointed.2

      Order reversed. Case remanded. Jurisdiction relinquished.




2 The Commonwealth, in its brief, noted that it has no objection to a remand
to the PCRA court for the appointment of new counsel.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 4/18/18




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