J-S83025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MICHAEL RYAN BRINDLE,

                            Appellant                No. 443 WDA 2016


           Appeal from the Judgment of Sentence February 2, 2016
                In the Court of Common Pleas of Butler County
             Criminal Division at No(s): CP-10-CR-0001996-2015


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED DECEMBER 16, 2016

       Appellant, Michael Ryan Brindle, appeals from the judgment of

sentence entered on February 2, 2016, in the Butler County Court of

Common Pleas. Appellate counsel has filed a petition seeking to withdraw

his representation and a brief pursuant to Anders v. California, 386 U.S.

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009),

which govern withdrawal from representation on direct appeal. After careful

review, we deny counsel’s petition to withdraw and remand for further

proceedings.

       On February 2, 2016, Appellant entered a plea of guilty to one count of

conspiracy to commit retail theft, a misdemeanor of the first degree, and
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*
    Retired Senior Judge assigned to the Superior Court.
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was sentenced to four to ten months of incarceration and ordered to pay

restitution. N.T., 2/2/16, at 13. Appellant was immediately paroled based

on his credit for time served.     Id.    Appellant was represented through

sentencing by appointed counsel, Attorney Rebecca Lee Black. Id.

      The record reflects a pro se notice of appeal entered on the docket on

March 28, 2016. In his notice of appeal, Appellant asserts that “counsel of

record for this party has failed to respond to her client[’]s request to

exercise his post-sentencing rights.”    Notice of Appeal, 3/28/16, at 2. On

April 8, 2016, Attorney Black filed a petition to withdraw as counsel with this

Court. Petition to Withdraw as Counsel of Record for Appellant, 443 WDA

2016, 4/8/16, at 1.

      On April 14, 2016, Attorney Black filed a motion for continuance in the

trial court. Motion for Continuance, 4/14/16, at 1-2. In it, Attorney Black

asserted that Appellant apparently believed that as his court-appointed

counsel, Attorney Black would be handling his appeal. Id. at 1. Attorney

Black further explained that it was her understanding that her appointment

lasted “only through sentencing, or 30 days thereafter to the expiration of a

Defendant’s direct appeal rights.”       Id.   Accordingly, counsel sought a

continuance to allow for the filing of the Pa.R.A.P. 1925(b) statement

ordered by the court following Appellant’s pro se notice of appeal.         Id.

Attorney Black also requested, on Appellant’s behalf, that the court appoint

counsel to represent Appellant through the appeal process.      Id. at 2.   By


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order entered April 15, 2016, the trial court granted the motion for

continuance and appointed Attorney Ian C. Walchesky as counsel.        Order,

5/15/16, at 1.

      On April 25, 2016, Attorney Walchesky filed a motion to withdraw as

counsel due to a conflict of interest. By order entered April 27, 2016, the

trial court granted Attorney Walchesky’s motion to withdraw, and appointed

Kenneth R. Harris, Jr., Esquire, as counsel. Order, 4/27/16, at 1.

      On April 28, 2016, this Court denied Attorney Black’s application to

withdraw as counsel that had been filed on April 8, 2016, and issued the

following order:

             Upon consideration of Rebecca L. Black, Esquire’s April 8,
      2016 “Petition to Withdraw as Counsel of Record for Appellant,”
      the petition is DENIED. Counsel may seek to withdraw in the
      trial court. If counsel is granted permission to withdraw in the
      trial court, counsel may again seek relief in this Court attaching
      the order permitting withdraw[al] to the petition.

Order, 443 WDA 2016, 4/28/16, at 1.

      On May 5, 2016, Attorney Black filed with this Court an amended

petition to withdraw as counsel of record for Appellant. Amended Petition to

Withdraw as Counsel of Record for Appellant, 5/5/16, at 1. In it, Attorney

Black asserts that there had been a subsequent appointment of counsel for

Appellant. Id. at 1-2. This Court issued an order on May 12, 2016, which

provided as follows:

            Upon consideration of Rebecca Black, Esquire’s May 5,
      2016 “Amended Petition to Withdraw as Counsel of Record for
      Appellant,” and upon review of the lower court’s April 28, 2016

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       order appointing Kenneth R. Harris, Jr., Esquire as counsel for
       Appellant Brindle, the petition is GRANTED such that [A]ttorney
       Black is EXCUSED from her representation of Appellant. The
       prothonotary is DIRECTED to enter the appearance of
       [A]ttorney Harris in this Court.

             The prothonotary is directed to forward a copy of the
       instant Order to Appellant and [A]ttorneys Black and Harris.

Order, 443 WDA 2016, 5/12/16, at 1.

       Following several extensions, Attorney Harris filed a Statement of

Intent to file an Anders Brief on July 14, 2016.        Counsel subsequently

submitted an Anders Brief and filed an application to withdraw as counsel.

In it, counsel identifies the following single issue: “Whether a timely notice

of appeal was filed giving this Court jurisdiction of the Appellant’s appeal.”

Anders Brief at 4 (full capitalization omitted).1

       Before we address counsel’s Anders brief and his request to withdraw,

we must consider whether this appeal is timely.       We lack jurisdiction to

consider untimely appeals. Commonwealth v. Burks, 102 A.3d 497, 500

(Pa. Super. 2014).

       In cases where no post-sentence motions or Commonwealth motions

to modify sentence are filed, a defendant must file an appeal within thirty

days of imposition of sentence in open court.        Pa.R.Crim.P. 720(A)(3);

Pa.R.A.P. 903(c)(3).       Appellant was sentenced on February 2, 2016.   The
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1
  We note that review of counsel’s Anders Brief reflects that while counsel
cites rules and law setting forth parameters for a timely appeal, he fails to
present any analysis of this case and whether the current appeal is timely.



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docket reflects that Appellant’s notice of appeal was filed on March 28,

2016.2 The appeal is therefore patently untimely.

        However, we must consider whether this document filed after the

direct appeal period expired should have been treated as a petition brought

pursuant to the Post Conviction Relief Act (“PCRA”).3              Pennsylvania law is

well settled that any collateral petition raising issues requesting remedies

available    under     the    PCRA     will    be     considered   a   PCRA     petition.

Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa. Super. 2001) (citing

Commonwealth           v.    Fahy,    737      A.2d    214,   223–224    (Pa.    1999);

Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa. 1998). “[A] petition

raising a claim for which the PCRA does not offer a remedy will not be

considered a PCRA petition.           Thus, the question then becomes whether

petitioner had an available remedy under the PCRA ....” Deaner, 779 A.2d

at 580 (internal citation and quotations omitted).

        “The content of the motion—just exactly what is pled and requested

therein—is relevant to deciding whether to treat the motion as a collateral

petition.”   Commonwealth v. Wrecks, 931 A.2d 717, 720 (Pa. Super.
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2
  The record indicates that Appellant was incarcerated at the time the notice
of appeal was filed. However, we discern no evidence of record establishing
when Appellant provided the pro se notice to prison authorities for mailing.
See Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011)
(“Under the prisoner mailbox rule, we deem a pro se document filed on the
date it is placed in the hands of prison authorities for mailing.”).
3
    42 Pa.C.S. §§ 9541-9546.



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2007) (citing Commonwealth v. Lutz, 788 A.2d 993, 996 n. 7 (Pa. Super.

2001) (holding that, generally, a filing that raises issues cognizable under

the PCRA will be considered a PCRA petition while a filing requesting relief

outside the PCRA will not be so treated). Ineffective assistance of counsel

claims are cognizable under the PCRA, and filings or motions raising such

claims will be treated as PCRA petitions. 42 Pa.C.S. § 9543(a)(2)(ii); see

also Commonwealth v. Lusch, 759 A.2d 6, 8 (Pa. Super. 2000)

(accusations of trial counsel ineffectiveness are cognizable under the PCRA).

      Here, as noted, in the filing Appellant entitled, “notice of appeal,” he

asserted that “counsel of record for this party has failed to respond to her

client[’]s request to exercise his post-sentencing rights.” Notice of Appeal,

3/28/16, at 1.      This assertion may be fairly construed as a claim of

ineffective assistance of counsel. Because such claims are cognizable under

the PCRA, this pleading should be treated as a PCRA petition. 42 Pa.C.S. §

9543(a)(2)(ii); see also Commonwealth v. Kutnyak, 781 A.2d 1259,

1261 (Pa. Super. 2001) (treating appellant’s pro se motion challenging his

guilty plea as a PCRA petition “regardless of the manner in which the petition

is titled”).   Accordingly, we remand to allow appointed counsel to file an

amended PCRA petition in which he may request that Appellant’s direct

appeal rights be reinstated nunc pro tunc or any other appropriate relief

available under the PCRA.




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      Counsel’s application to withdraw as counsel pursuant to Anders is

denied. Case remanded for proceedings consistent with this memorandum.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2016




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