J-S18032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JAY LEE WALTER, SR.                      :
                                          :
                    Appellant             :   No. 1062 MDA 2018

             Appeal from the PCRA Order Entered June 5, 2018
    In the Court of Common Pleas of Franklin County Criminal Division at
                      No(s): CP-28-CR-0000532-2009


BEFORE:    BOWES, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                        FILED APRIL 24, 2019

      Appellant, Jay Lee Walter, Sr., appeals from the June 5, 2018, order

entered in the Court of Common Pleas of Franklin County purporting to deny

Appellant’s second petition filed under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. After a careful review, we are constrained to

vacate the PCRA court’s June 5, 2018, order and remand for further

proceedings consistent with this decision.

      The relevant facts and procedural history are as follows: Appellant was

arrested in connection with the sexual assault of his minor daughter from

October 2006 to October 2008. Represented by counsel, Appellant proceeded

to a jury trial, at the conclusion of which he was convicted of rape of a child,

involuntary deviate sexual intercourse with a child (two counts), indecent




____________________________________
* Former Justice specially assigned to the Superior Court.
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assault, and endangering the welfare of a child.1 Appellant was sentenced to

an aggregate of 23 years to 50 years in prison, and he was determined to be

a sexually violent predator pursuant to 42 Pa.C.S.A. § 9792.

        Appellant filed a timely direct appeal to this Court. In an unpublished

memorandum filed on December 9, 2011, a panel of this Court concluded the

trial court erred in admitting out-of-court statements by the victim pursuant

to Pennsylvania’s “Tender Years Act,” 42 Pa.C.S.A. § 5985.1. Consequently,

this Court vacated the judgment of sentence and remanded for further

proceedings. See Commonwealth v. Walter, 1829 MDA 2010 (Pa.Super.

filed 12/9/11) (unpublished memorandum).          However, the Commonwealth

filed a petition for allowance of appeal, which the Pennsylvania Supreme Court

granted.

        Thereafter, in an opinion filed on February 18, 2014, the Supreme Court

held this Court erred in finding the trial court abused its discretion by admitting

the victim’s out-of-court statements pursuant to the Tender Years Act. See

Commonwealth v. Walter, 625 Pa. 522, 93 A.3d 442 (2014). Accordingly,

the Supreme Court reversed this Court’s decision and remanded to this Court

for consideration of Appellant’s remaining issues. See id.

        Upon remand, in an unpublished memorandum filed on September 9,

2014, this Court concluded Appellant was not entitled to relief on his remaining



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1   18 Pa.C.S.A. §§ 3121, 3123, 3126, and 4304, respectively.

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issues, and therefore, we            affirmed his   judgment of   sentence.   See

Commonwealth v. Walter, 1829 MDA 2010 (Pa.Super. filed 9/9/14)

(unpublished memorandum). Appellant did not file a petition for allowance of

appeal from this decision.

       On or about February 3, 2017, Appellant filed a pro se PCRA petition in

which he challenged the legality of his sentence and suggested he was entitled

to the newly recognized constitutional right exception to the PCRA’s time bar.

See 42 Pa.C.S.A. § 9545(b)(1)(iii). In support of his claim, Appellant cited to

several cases, including Alleyne v. United States, 570 U.S. 99, 133 S.Ct.

2151 (2013),2 and Commonwealth v. Wolfe, 636 Pa. 37, 140 A.3d 651

(2016).3 On February 27, 2017, the PCRA court appointed counsel, who filed

a petition seeking to withdraw his representation, as well as a Turner/Finley4

“no-merit” letter on April 24, 2017.

       By order entered on May 12, 2017, pursuant to Pa.R.Crim.P. 907(1),

the PCRA court provided Appellant with notice of its intent to dismiss



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2 In Alleyne, the United States Supreme Court held any fact that increases
mandatory minimum sentences for a crime is considered an element of the
crime for the fact-finder to find beyond a reasonable doubt.

3 In Wolfe, the Pennsylvania Supreme Court held that 42 Pa.C.S.A. § 9718,
pertaining to mandatory minimum sentences for involuntary deviate sexual
intercourse crimes, is unconstitutional under Alleyne.

4 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).


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Appellant’s PCRA petition without an evidentiary hearing.      Further, in this

order, the PCRA court specifically granted counsel’s petition to withdraw and

provided Appellant with twenty days to respond to the order.

       On or about May 22, 2017, Appellant filed a timely pro se response in

opposition to the PCRA court’s notice of intent to dismiss. Therein, Appellant

raised claims of ineffective assistance of PCRA counsel, challenged the

adequacy of PCRA counsel’s Turner/Finley “no-merit” letter, and averred his

sentence is illegal.

       On January 16, 2018, Appellant filed a pro se document entitled “Motion

to Modify Sentence.” Appellant averred he was serving an illegal sentence

under Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017).5 By

order entered on January 18, 2018, despite the fact it had not disposed of

Appellant’s February 3, 2017, PCRA petition, the PCRA court treated

Appellant’s January 16, 2018, petition as a second PCRA petition.6

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5 In Muniz, the Pennsylvania Supreme Court held that certain registration
provisions of Pennsylvania’s Sex Offender Registration and Notification Act
(SORNA) are punitive and the retroactive application thereof violates the ex
post facto clauses of the federal and Pennsylvania constitutions.

6 We agree with the PCRA court that Appellant’s “Motion to Modify Sentence”
presented claims that are cognizable under the PCRA, and thus, the PCRA is
“the exclusive vehicle” by which Appellant could gain relief. Commonwealth
v. Taylor, 65 A.3d 462 (Pa.Super. 2013); Com. ex rel. Strope v. Dist.
Attorney of Bradford County, 789 A.2d 218, 220 (Pa.Super. 2001).
Accordingly, while the PCRA court properly treated Appellant’s petition under
the auspices of the PCRA, as discussed infra, the PCRA court erred in treating
it as Appellant’s second PCRA petition.



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Specifically, the PCRA court concluded that Appellant’s second petition met

the timeliness exception of Section 9545(b)(1)(iii), and therefore, the PCRA

court appointed counsel, who filed a supplemental PCRA petition on March 9,

2018.7

       Following a hearing, by opinion and order entered on June 5, 2018, the

PCRA court purported to deny Appellant’s second PCRA petition.8 On June 25,

2018, Appellant filed a counseled notice of appeal. The PCRA court directed

Appellant to file a Pa.R.A.P. 1925(b) statement, Appellant complied, and the

PCRA court filed a Pa.R.A.P. 1925(a) opinion.

       In reviewing the propriety of the PCRA court’s denial of Appellant’s

petition, we are limited to determining whether the PCRA court’s findings are

supported by the record, and whether the order is free of legal error.

Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582 (1999).

       Preliminarily, we must address a procedural anomaly that exists in this

case. The record reveals that, on or about February 3, 2017, Appellant filed

his first PCRA petition, and on May 12, 2017, the PCRA court entered an order


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7 In the March 9, 2018, amended PCRA petition, counsel mistakenly averred
that “[Appellant] has filed prior Petitions for Post-Conviction Relief, which were
dismissed as untimely.” Counsel’s Amended PCRA Petition, filed 3/9/18, at 2.

8In its opinion, the PCRA court mistakenly indicated Appellant had filed a prior
PCRA petition, which was denied as untimely. PCRA Court Opinion, filed
6/5/18, at 3.




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pursuant to Pa.R.Crim.P. 907(1),9 indicating the court intended to dismiss

Appellant’s petition on the basis it was untimely filed, and Appellant had the

option to respond to the proposed dismissal within twenty days.

       Appellant filed a timely objection to the notice of intent to dismiss his

first PCRA petition; however, the PCRA court never addressed Appellant’s

objection, never entered an order dismissing the PCRA petition, and never

provided Appellant with notice that the PCRA petition had been dismissed.


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9Pa.R.Crim.P. 907 relevantly provides:
      Rule 907. Disposition Without Hearing
      Except as provided in Rule 909 for death penalty cases,
      (1) the judge shall promptly review the petition, any answer by
      the attorney for the Commonwealth, and other matters of record
      relating to the defendant’s claim(s). If the judge is satisfied from
      this review that there are no genuine issues concerning any
      material fact and that the defendant is not entitled to post-
      conviction collateral relief, and no purpose would be served by any
      further proceedings, the judge shall give notice to the parties of
      the intention to dismiss the petition and shall state in the notice
      the reasons for the dismissal. The defendant may respond to
      the proposed dismissal within 20 days of the date of the
      notice. The judge thereafter shall order the petition
      dismissed, grant leave to file an amended petition, or direct
      that the proceedings continue.
                                        ***
      (4) When the petition is dismissed without a hearing, the
      judge promptly shall issue an order to that effect and shall
      advise the defendant by certified mail, return receipt
      requested, of the right to appeal from the final order disposing of
      the petition and of the time limits within which the appeal must
      be filed. The order shall be filed and served as provided in Rule
      114.
Pa.R.Crim.P. 907 (bold added)




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       Thereafter, when Appellant filed his January 16, 2018, pro se petition,

the PCRA court concluded it was Appellant’s second PCRA petition. However,

since the PCRA court had never formally disposed of Appellant’s February 3,

2017, PCRA petition, including ruling on Appellant’s response in opposition to

dismissal, the January 16, 2018, petition did not constitute a second PCRA

petition.10

       Therefore, as the record reveals confusion and/or an apparent

breakdown in the PCRA court, including whether the PCRA court considered

Appellant’s timely response in opposition to the court’s Pa.R.Crim.P. 907

notice of intent to dismiss the February 3, 2017, petition, we vacate the June

5, 2018, order, which purports to deny Appellant’s second PCRA petition, and

remand for further proceedings consistent with this decision.




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10  We recognize that, under Pa.R.Crim.P. 907(1), after Appellant filed his
response in opposition to the PCRA court’s notice of intent to dismiss his
February 3, 2017, petition, the PCRA court was permitted to grant Appellant
leave to file an amended PCRA petition. See Pa.R.Crim.P. 907(1). However,
the record reveals the PCRA court did not provide such leave or treat
Appellant’s January 16, 2018, petition as an amendment to his first PCRA
petition. Rather, the PCRA court incorrectly concluded the May 12, 2017,
notice of intent to dismiss was a final order, which disposed of Appellant’s
“first” PCRA petition, and, thus, the PCRA court treated the January 16, 2018,
petition as a “second” PCRA petition. See PCRA Court Opinion, filed 7/30/18,
at 3 (PCRA court indicating “[Appellant] filed his first Petition for Post-
Conviction Relief (PCRA) on February 3, 2017, which was deemed untimely
and dismissed by this Court on May 12, 2017.”). As indicated supra, the May
12, 2017, order was entered pursuant to Pa.R.Crim.P. 907(1) and did not
constitute a final order in this case.

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     Order Vacated; Case Remanded; Jurisdiction Relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2019




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