J-S73031-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DONALD E GELTS, JR.                        :
                                               :
                       Appellant               :   No. 693 WDA 2018

                  Appeal from the Order Entered April 26, 2018
               In the Court of Common Pleas of Venango County
              Criminal Division at No(s): CP-61-CR-0000290-2002


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

JUDGMENT ORDER BY OLSON, J.:                        FILED NOVEMBER 30, 2018

        Appellant, Donald E Gelts, Jr., appeals pro se from the order entered on

April 26, 2018. Although we quash this appeal, we instruct the PCRA court to

comply with this judgment order.

        As our resolution of this appeal is based on the procedural posture of

this case, we decline to set forth the factual background. On July 11, 2003,

the trial court sentenced Appellant to an aggregate term of 14 to 30 years’

imprisonment after he pled guilty to statutory sexual assault1 and involuntary

deviate sexual intercourse.2          After Appellant’s direct appeal rights were



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1   18 Pa.C.S.A. § 3122.1.

2   18 Pa.C.S.A. § 3123(a)(7).
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reinstated nunc pro tunc, this Court affirmed. Commonwealth v. Gelts, 22

A.3d 1071 (Pa. Super. 2010) (unpublished memorandum) (citation omitted).

On December 29, 2010, Appellant filed his first3 pro se petition pursuant to

the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.          The

PCRA court denied Appellant’s request for the appointment of counsel. 4 No

action was taken on that petition for the next seven and one-half years.

       On April 6, 2018, Appellant filed a motion to amend that PCRA petition.

On April 26, 2018, the PCRA court treated the filing as a second PCRA petition

and purported to dismiss the petition. This appeal followed.

       Preliminarily, we must determine if we have jurisdiction over this appeal.

Generally, we only have jurisdiction over appeals from final orders. Shearer

v. Hafer, 177 A.3d 850, 855 (Pa. 2018) (citation omitted). An order denying

a motion to amend a PCRA petition is not a final order.           See Pa.R.A.P.

341(b)(1).     Hence, if Appellant’s filing were a motion to amend his PCRA

petition, we lack jurisdiction over this appeal. If, however, as the PCRA court


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3   See Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 2013).
4In denying Appellant’s request for appointment of counsel to handle his post-
conviction challenge, the PCRA court incorrectly stated that Appellant was
being represented by his direct appellate counsel at the time. Appellate
counsel, however, only had an obligation “to continue representation until the
case [wa]s concluded[.]” Commonwealth v. White, 871 A.2d 1291, 1294
(Pa. Super. 2005) (citation omitted). The case was concluded on December
15, 2010, when the time for filing a petition for allowance of appeal expired.
There is nothing in the certified record indicating that appellate counsel was
appointed to represent Appellant in any post-conviction challenge. Hence,
Appellant was not represented when he filed his PCRA petition.

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found, Appellant’s filing was a second PCRA petition, the April 26, 2018 order

was a final order and we have jurisdiction over this appeal.

        We must look to the contents of a filing to determine its character and

not merely the title a party ascribes thereto. Cf. Commonwealth v.

Descardes, 136 A.3d 493, 503 (Pa. 2016) (court was required to consider

filing a PCRA petition although titled a petition for writ of coram nobis). As

noted above, Appellant’s December 29, 2010 PCRA petition was still pending

when he filed the motion to amend. Appellant sought to add a claim to that

PCRA petition in his filing. Hence, the PCRA court improperly treated the filing

as Appellant’s second PCRA petition. The filing should have been treated as a

motion to amend Appellant’s first PCRA petition. Hence, this appeal from the

order denying the motion to amend is interlocutory and we lack jurisdiction

over this appeal. Accordingly, we quash this appeal.

        Although we quash this appeal as interlocutory, we note that “it is

undisputed that first time PCRA petitioners have a rule-based right to

counsel.” Commonwealth v. Figueroa, 29 A.3d 1177, 1180 n.6 (Pa. Super.

2011).     The PCRA court has denied Appellant that right for the past eight

years. The PCRA court shall appoint counsel forthwith to litigate the pending

PCRA petition.5

        Appeal quashed.



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5   Counsel shall expeditiously file an amended petition or a no-merit letter.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2018




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