J-S58023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

ERIC BAEZ,

                         Appellant                  No. 417 MDA 2015


               Appeal from the PCRA Order of January 26, 2015
             In the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0003667-2007


BEFORE: GANTMAN, P.J., OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                        FILED OCTOBER 26, 2015

        Appellant, Eric Baez, appeals from an order entered on January 26,

2015 in the Criminal Division of the Court of Common Pleas of Lackawanna

County that dismissed, without a hearing, his claims filed pursuant to the

Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful

review, we vacate and remand.

        In November 2007, the Carbondale Police Department charged

Appellant with rape of a child and related offenses stemming from a sexual

assault upon a six-year-old victim. Appellant proceeded to trial in November

2008.     At the conclusion of trial, the jury found Appellant guilty of the

charged offenses. On March 25, 2009, the trial court sentenced Appellant to

an aggregate term of 52 to 130 years’ imprisonment. The trial court also




* Retired Senior Judge assigned to the Superior Court
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determined that Appellant met the statutory criteria for sexually violent

predator (SVP) status as set forth in 42 Pa.C.S.A. § 9795.4.

       Appellant thereafter filed post-sentence motions, which the trial court

denied, following argument, on January 11, 2010.       A timely direct appeal

followed on January 27, 2010 and we affirmed Appellant’s judgment of

sentence on February 10, 2011. Appellant petitioned for allowance of appeal

before our Supreme Court on March 10, 2011. The Supreme Court denied

Appellant’s petition on August 3, 2011. It does not appear from the record

that Appellant requested further review in the United States Supreme Court.

       On or about January 16, 2014, Appellant filed a document captioned

as, “Application for Speedy Disposition of Post-Conviction Collateral Relief

Motion.”    Appellant alleged in this submission that, at the completion of

direct review, he filed a timely pro se petition pursuant to the PCRA on

October 29, 2012. Appellant further alleged that, despite the passage of 15

months, the PCRA court had not taken action on his petition. As proof of the

filing date of his petition, Appellant attached a cash slip as Exhibit A to his

application.1 The cash slip is dated October 30, 2012 and identifies the item

to be charged to Appellant’s account as a “PCRA Petition Mailing” addressed

to the Clerk of Court’s Office – Court of Common Pleas Lackawanna


____________________________________________


1
    For purposes of clarity, we refer to Appellant’s January 16, 2014
submission as his “application” and we refer to the alleged October 29, 2012
filing as his “petition.”



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Courthouse in Scranton, Pennsylvania.       Appellant’s application requested

relief in the form of: (1) a status conference via video; (2) the appointment

of counsel to file an amended PCRA petition; (3) an evidentiary hearing on

the merits of his PCRA petition; or, (4) any additional relief the court

deemed appropriate.

      On February 4, 2014, the PCRA court appointed counsel and issued a

rule directing the Commonwealth to show cause, on or before March 10,

2014, why a hearing should not be granted.        By letter dated March 10,

2014, the Commonwealth advised that it reviewed the docket and

determined that no PCRA petition appears on or around October 29, 2012.

Furthermore, the Commonwealth stated that it could not effectively respond

to Appellant’s application since it did not request collateral relief or allege

facts in support of such relief. Finally, the Commonwealth advised the PCRA

court that it intended to respond to any amended petition filed by appointed

counsel.

      Treating Appellant’s application as his initial PCRA petition, the PCRA

court, on March 17, 2014, granted leave to allow Appellant, with the

assistance of counsel, to amend his application in accordance with

Pa.R.Crim.P. 902, which describes the form and content of a petition filed

pursuant to the PCRA. The court’s order directed that the amended petition

be filed no later than May 12, 2014 and instructed Appellant to include

within his amended petition averments regarding the timeliness of the




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petition, as well as the applicability of any exceptions to the one-year filing

deadline.

        Appointed counsel did not file an amended petition. Instead, counsel

petitioned the court to withdraw from representation on August 19, 2014.

Counsel’s petition to withdraw acknowledged Appellant’s January 16, 2014

application but stated that no PCRA petition appeared on the docket in this

case.    Counsel’s petition also averred that, on March 19, 2014, counsel

forwarded to Appellant a copy of the PCRA court’s order of March 17, 2014,

which directed that the filing of an amended petition include allegations

relating to the timeliness of Appellant’s collateral relief claims. In addition,

counsel alleged in his petition to withdraw that he requested from Appellant

the information needed to prepare an amended petition but that Appellant

never provided the necessary facts.        By letter dated August 11, 2014,

counsel advised Appellant that a petition to withdraw had been filed with the

PCRA court.

        On January 26, 2015, the PCRA court granted counsel’s petition to

withdraw and dismissed, without a hearing, Appellant’s January 16, 2014

application for relief.   The court’s January 26, 2015 order explained that

counsel was permitted to withdraw since he complied with the requirements

of   Commonwealth         v.   Turner,   544   A.2d   927   (Pa.   1988)    and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). In addition,

the court determined that Appellant’s request for collateral relief was subject

to summary dismissal because his claim was untimely and he failed to

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invoke any exceptions to the PCRA’s timeliness requirements.       Trial Court

Order, 1/26/15, at 1-2.         Specifically, the trial court concluded that

Appellant’s judgment of sentence became final on September 29, 2011, that

the PCRA’s one-year filing period expired in this case on September 29,

2012, and that Appellant filed his claims on January 16, 2014, “more than

one year from the date that his judgment of sentence became final.”        Id.

The PCRA court did not issue notice of its intent to dismiss Appellant’s claims

pursuant to Pa.R.Crim.P. 907.

      On February 25, 2015, Appellant filed a pro se notice of appeal. By

order dated March 10, 2015, the PCRA court appointed new counsel to

represent Appellant and directed Appellant to file a concise statement of

errors complained of on appeal.      After receiving an enlargement of time,

Appellant filed his concise statement on May 18, 2015. To date, the PCRA

court has not issued its opinion pursuant to Pa.R.A.P. 1925(a).

      On appeal, Appellant claims that the trial court erred in ordering the

summary dismissal of his claims for collateral relief without first issuing

notice of its intentions pursuant to Pa.R.Crim.P. 907. See Appellant’s Brief

at 7. Citing our prior decision in Commonwealth v. Bond, 630 A.2d 1281

(Pa. Super. 1993), both the Commonwealth and the PCRA court argue that

such notice is unnecessary and that dismissal was proper in this case since

PCRA counsel petitioned to withdraw in compliance with Turner/Finley,

counsel’s petition to withdraw explained that Appellant’s claims lacked merit,

counsel forwarded a copy of his petition (as well as a copy of the court’s

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March 17, 2014 order) to Appellant, and Appellant failed to object to

counsel’s petition even though the PCRA court gave Appellant more than 20

days to respond.        See Trial Court Order, 1/26/15, at 2-3; see also

Commonwealth’s Brief at 3-5.        After careful review, we are constrained to

vacate the dismissal order and remand for further proceedings, albeit for

reasons other than those raised and discussed by the parties and the PCRA

court.

         We “review an order granting or denying PCRA relief to determine

whether the PCRA court’s decision is supported by evidence of record and

whether its decision is free from legal error.”     Commonwealth v. Liebel,

825 A.2d 630, 632 (Pa. 2003).            Application of the PCRA’s timeliness

requirements is jurisdictional in nature and, as such, presents a question of

law over which we apply de novo review. Commonwealth v. Chester, 895

A.2d 520, 522 (Pa. 2006). This Court may raise the issue of jurisdiction suo

sponte. Forrester v. Hanson, 901 A.2d 548, 554 (Pa. Super. 2006).

         The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.      This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

date that the petitioner’s judgment of sentence becomes final, unless [the]

petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b).                “For

purposes of this subchapter, a judgment becomes final at the conclusion of

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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()(3).

       In this case, the PCRA court held that Appellant’s January 16, 2014

filing was untimely and therefore subject to dismissal without a hearing.

This holding rested in large part on the court’s determination that Appellant’s

judgment of sentence became final on September 29, 2011 and that his

petition had to be filed no later than September 29, 2012.               These

determinations constituted legal error.          As we stated above, this Court

affirmed Appellant’s judgment of sentence on February 10, 2011 and

Appellant filed a petition for allowance of appeal on March 10, 2011.

Thereafter, our Supreme Court denied Appellant’s petition on August 3,

2011. Under United States Supreme Court Rule 13, Appellant had 90 days

in which to file a petition for writ of certiorari. U.S. Sup. Ct. Rule 13. Thus,

contrary to the PCRA court’s determinations, Appellant’s judgment of

sentence became final on November 3, 2011 and his PCRA petition was due

on or before November 3, 2012.2

____________________________________________


2
   In determining the date on which Appellant’s judgment of sentence
became final, the PCRA court appears to have relied on the date on which
the clerk for the court of common pleas recorded our decision in Appellant’s
direct appeal on the local docket sheet. The appropriate date for this
calculation, however, is the date on which our Supreme Court filed its order
denying Appellant’s petition for allowance of appeal.




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       Inasmuch as the PCRA court erred in determining both the date on

which Appellant’s judgment of sentence became final and the expiration of

the one-year filing deadline for Appellant’s PCRA petition, we cannot

conclude with confidence that the PCRA court properly exercised its

discretion in denying a hearing in this case.    Under Pa.R.Crim.P. 907, the

PCRA court may dismiss a petition without a hearing only if there are no

genuine issues concerning any material fact, the defendant is not entitled to

post-conviction collateral relief, and no purpose would be served by any

further proceedings. Pa.R.Crim.P. 907. In his January 16, 2014 application,

Appellant alleged that he filed a PCRA petition on October 29, 2012 and that

the court took no action on his filing for 15 months.    To substantiate his

contentions, Appellant attached a cash slip dated October 30, 2012 to his

submission.3       If true, the averments in Appellant’s application would

demonstrate that Appellant filed a timely petition on or around October 29,

2012. Thus, we conclude that Appellant raised a genuine issue of fact as to

the filing of a timely petition and that he is entitled to a hearing on this

claim. While we recognize, as the PCRA court points out, that the docket in

this case does not reflect the filing of a PCRA petition on or about October

29, 2012, we do not believe that Appellant’s claim can be resolved in the

____________________________________________


3
   In the context of the prisoner mailbox rule, cash slips have been
recognized as proof that a PCRA petition was timely filed. Commonwealth
v. Jones, 700 A.2d 423, 426 (Pa. 1997).



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absence of an evidentiary hearing. In essence, Appellant advances a claim

asserting   a   breakdown   in   the   judicial   system   with   respect   to   the

transmission, receipt, and filing of his original petition.       On remand, the

PCRA court should convene a hearing to explore whether, in fact, Appellant

filed a timely PCRA petition on or around October 29, 2012.

      For each of the foregoing reasons, we vacate the order dismissing

Appellant’s claims and remand this matter for further proceedings consistent

with this memorandum.

      Order vacated. Case remanded. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/26/2015




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