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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    BENJAMIN KIEFER                            :
                                               :
                       Appellant               :   No. 637 EDA 2019

             Appeal from the PCRA Order Entered February 6, 2019
      In the Court of Common Pleas of Wayne County Criminal Division at
                        No(s): CP-64-CR-0000199-2013

BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                          FILED NOVEMBER 08, 2019

        Appellant Benjamin Kiefer appeals from the order dismissing the Post

Conviction Relief Act1 (PCRA) petition he filed pro se following the affirmance

of his conviction in a direct appeal nunc pro tunc. Because Appellant was

deprived of his right to counsel for a first PCRA petition, we vacate the order

and remand for further proceedings.

        A prior panel of this Court summarized the facts of Appellant’s conviction

as follows: “After a night of drinking, fighting, and crashing a car, Appellant,

Benjamin Kiefer, shot his brother, Kenneth, five times, resulting in Kenneth’s

death. At trial, Kiefer conceded that he had shot Kenneth to death, but argued



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1   42 Pa.C.S. §§ 9541-9546.
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that he did so in self-defense.” Commonwealth v. Kiefer, 2925 EDA 2016,

2017 WL 3976371, *1 (Pa. Super. filed Sept. 11, 2017) (unpublished mem.).

A jury convicted Appellant of third-degree murder2 on September 18, 2014.

On December 4, 2014, the trial court sentenced Appellant to fifteen to thirty

years’ imprisonment. Appellant did not file a direct appeal.

        On December 17, 2015, Appellant, acting pro se, filed a PCRA petition.

The PCRA court appointed counsel, and on August 10, 2016, the PCRA court

granted relief and reinstated Appellant’s direct appeal rights nunc pro tunc.

Order, 8/11/16.        Appellant subsequently appealed to this Court, which

affirmed on September 11, 2017.                See Kiefer, 2017 WL 3976371 at *2.

Appellant did not file a petition for allowance of appeal with the Pennsylvania

Supreme Court.

        On August 21, 2018, the PCRA court docketed Appellant’s pro se PCRA

petition, which requested appointment of PCRA counsel.3 The PCRA court did

not appoint counsel.        On December 27, 2018, the PCRA court issued a

Pa.R.Crim.P. 907 notice of intent to dismiss. The PCRA court concluded that

Appellant’s PCRA petition was timely filed but lacked merit. Rule 907 Notice,

12/27/18, at 2. On January 17, 2019, the PCRA court docketed Appellant’s

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2   18 Pa.C.S. § 2502(c).
3 The certified record did not include a postmarked envelope. See generally
Commonwealth v. Whitehawk, 146 A.3d 266, 268 n.3 (Pa. Super. 2016)
(stating that under the “prisoner mailbox rule,” a document is deemed filed
when placed in the hands of prison authorities for mailing).


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pro se response. On February 6, 2019, the PCRA court dismissed Appellant’s

petition.   Appellant, still pro se, timely appealed and timely filed a court-

ordered Pa.R.A.P. 1925(b) statement.

       On July 16, 2019, Appellant, pro se, filed an application for relief with

this Court, requesting, among other things, appointment of counsel.          On

August 12, 2019, this Court ordered that the PCRA court appoint counsel for

Appellant. Order, 8/12/19. The PCRA court subsequently appointed appellate

counsel, who did not take any action. On August 15, 2019, the PCRA court

requested clarification of this Court’s August 12, 2019 order because it

believed that Appellant was not entitled to appointed counsel because the

underlying petition was Appellant’s second, and not his first, petition.4

       Initially, before addressing the merits of this appeal, we note 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.”

Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011). For

example, in Commonwealth v. Karanicolas, 836 A.2d 940 (Pa. Super.

2003), the Court addressed whether a defendant’s second PCRA petition



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4 Although appellate counsel was appointed, Appellant filed a pro se
application for relief on October 7, 2019, which requested that this Court
remand the matter to the PCRA court because he had a rule-based right to
counsel.


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should be considered timely filed. Karanicolas, 836 A.2d at 942. In resolving

that question, the Karanicolas Court held that the defendant’s “present PCRA

should be considered [the defendant’s] first for timeliness purposes, where

his earlier PCRA petition served only to reinstate [the defendant’s] rights to a

direct appeal with this Court nunc pro tunc.” Id.

      The Karanicolas Court then addressed whether the defendant was

deprived of his right to PCRA counsel for his first PCRA petition:

      Pennsylvania courts have recognized expressly that every post-
      conviction litigant is entitled to at least one meaningful
      opportunity to have issues reviewed, at least in the context of an
      ineffectiveness claim. This Court has admonished, accordingly,
      that the point in time at which a trial court may determine that a
      PCRA petitioner’s claims are frivolous or meritless is after the
      petitioner has been afforded a full and fair opportunity to present
      those claims. Our Supreme Court has recognized that such an
      opportunity is best assured where the petitioner is provided
      representation by competent counsel whose ability to frame the
      issues in a legally meaningful fashion insures the trial court that
      all relevant considerations will be brought to its attention. The
      Supreme Court has mandated accordingly, that counsel be
      appointed in every case in which a defendant has filed a motion
      for post-conviction collateral review for the first time and is unable
      to afford counsel. Thus, before the trial court disposes of a post
      conviction petition, it must first make a determination as to the
      petitioner’s indigence and if the petitioner is indigent, the court
      must appoint counsel to assist in the preparation of said petition.
      The indigent petitioner’s right to counsel must be honored
      regardless of the merits of his underlying claims, even where
      those claims were previously addressed on direct appeal, so long
      as the petition on question is his first.

Id. at 945 (citations omitted, emphases in original, and some formatting

altered).   Therefore, the Karanicolas Court remanded for appointment of

counsel.     Id. at 948; see also Pa.R.Crim.P. 904(C) (“[W]hen an


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unrepresented defendant satisfies to 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

relief.” (emphasis added)).

       Instantly, the underlying PCRA petition is technically Appellant’s first

petition because Appellant’s prior PCRA petition reinstated Appellant’s direct

appeal rights nunc pro tunc. See Karanicolas, 836 A.2d at 942. It follows

that the PCRA court should have appointed PCRA counsel after Appellant,

acting pro se, filed his first PCRA petition in August 2018. See id.; see also

Pa.R.Crim.P. 904(C). Appellant, therefore, was not afforded a full and fair

opportunity to present his claims via appointed counsel. See Karanicolas,

836 A.2d at 945. On remand, appointed counsel must either file an amended

PCRA petition or comply with Turner/Finley5 and seek leave to withdraw as

counsel. See id. at 946.

       Order vacated.      Appellant’s pro se application for relief forwarded to

counsel pursuant to Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011).

Case remanded for further proceedings. Jurisdiction relinquished.




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5Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/8/19




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