J-S32035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

TARIQ JAHAD YUSUF JACKSON

                           Appellant                   No. 3038 EDA 2016


                 Appeal from the PCRA Order September 1, 2016
     in the Court of Common Pleas of Northampton County Criminal Division
                       at No(s): CP-48-CR-0000623-2013

BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED JULY 14, 2017

        Appellant, Tariq Jahad Yusuf Jackson, appeals from the order

dismissing his first Post Conviction Relief Act1 (“PCRA”) petition as untimely.

Appellant claims he is entitled to relief based on a new constitutional right

recognized in Alleyne v. United States, 133 S. Ct. 2151 (2013).                 We

vacate and remand with instructions.

        The   PCRA   court   summarized    the   following   relevant   facts   and

procedural history as follows:

           On May 31, 2013, [Appellant], entered into a negotiated
           plea to robbery as a felony 1.       The negotiated plea
           included a sentence bargain of [five] to [ten] years which
           represented the statutory mandatory minimum sentence
           invoked by the District Attorney, as [Appellant]
           acknowledged that he displayed a sawed off shotgun at the

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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          time that he perpetrated his robbery of a convenience
          store. As a result of the guilty plea, other related charges
          were withdrawn. We imposed the sentence pursuant to
          the negotiated bargain at the time of the entry of the
          guilty plea on May 31, 2013. [The United States Supreme
          Court decided Alleyne on June 13, 2013, thirteen days
          after Appellant was sentenced.] No appeal was filed.
          Therefore the conviction became a final conviction [thirty]
          days thereafter, June 30, 2013.[2]

PCRA Ct. Op., 9/1/16 at 1.

        On August 31, 2015, Appellant, acting pro se, filed the instant PCRA

petition, his first, alleging that his mandatory sentence was illegal pursuant

to Alleyne.     The PCRA court appointed PCRA counsel on September 10,

2015.       In October 2015, Appellant wrote a letter to PCRA counsel

requesting that he file an amended PCRA petition on his behalf and

suggesting arguments he would like to be included in his petition. (Letter

filed 10/30/15).    PCRA counsel never filed an amended petition.        PCRA

counsel did notify the PCRA court and Appellant, in a letter dated July 21,

2016, that he believed that Appellant’s claim lacked merit in light of

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016), which

held “that Alleyne does not apply retroactively to cases pending on

collateral review[.]”




2
  We note that June 30, 2013 was a Sunday. Therefore, Appellant’s
judgment of sentence became final on July 1, 2013, because Appellant had
until the next business day to file a timely appeal. See 1 Pa.C.S. § 1908.




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         On August 2, 2016, the PCRA court issued a notice of its intent to

dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907.

PCRA counsel indicated, in a letter dated August 11, 2016, that he did not

intend to pursue Appellant’s appeal any further, yet he did not seek leave to

withdraw under Turner/Finley.3           As a result, Appellant filed a pro se

response to the PCRA court’s Rule 907 notice wherein he alleged that PCRA

counsel was ineffective for failing to assert prior counsel’s ineffectiveness for

not filing a direct appeal.        In his response, Appellant also cited PCRA

counsel’s failure to file an amended PCRA petition or a Turner/Finley letter

brief.    On September 1, 2016, via an order and opinion, the PCRA court

denied Appellant’s petition as untimely.

         Appellant, again acting pro se, timely appealed from this order and

submitted      a   court-ordered   Pa.R.A.P.   1925(b)   statement   of   matters

complained of on appeal wherein he requested, inter alia, the appointment

of new PCRA counsel.         The court issued a Pa.R.A.P. 1925(a) response,

referencing its September 1, 2016 opinion. PCRA counsel filed an appellate

brief in this Court.4

         In this appeal, Appellant raises one issue:

3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
4
  During the pendency of this appeal, PCRA counsel also filed a motion
requesting the appointment of new PCRA counsel in light of Appellant’s claim
that PCRA counsel was ineffective. This Court denied the motion, via per
curiam order, on November 21 2016.



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            Whether [Appellant] was sentenced to an illegal mandatory
            sentence related to possession of a firearm pursuant to
            title 42 Pa.C.S.A. § 9712(a) where no direct appeal was
            timely filed by plea counsel?

Appellant’s Brief at 3 (citations and some capitalization omitted).

      Preliminarily, we must consider whether Appellant had the benefit of

meaningful counsel during the pendency of his first PCRA petition.          See

Commonwealth v. Smith, 121 A.3d 1049, 1053 (Pa. Super. 2015)

(citation omitted), appeal denied, 136 A.3d 981 (Pa. 2016); Pa.R.Crim.P.

904(C). A general rule-based right to initial PCRA counsel is provided under

Pennsylvania law:

            While a PCRA petitioner does not have a Sixth Amendment
            right to assistance of counsel during collateral review, this
            Commonwealth, by the way of procedural rule, provides
            for the appointment of counsel during a petitioner’s first
            petition for post conviction relief.

Smith, 121 A.3d at 1053 (citation omitted).

      Even if a PCRA petition is patently untimely, the right to a counseled

first PCRA petition remains. See Commonwealth v. Smith, 818 A.2d 494,

500-01 (Pa. 2003) (“[A]n indigent petitioner, whose first PCRA petition

appears untimely, is entitled to the assistance of counsel in order to

determine whether any of the exceptions to the one-year time limitation

apply.”).     Further, once appointed, counsel must take certain affirmative

steps:

            When appointed, counsel’s duty is to either (1) amend the
            petitioner’s pro se Petition and present the petitioner’s
            claims in acceptable legal terms, or (2) certify that the


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         claims lack merit by complying with the mandates of
         Turner/Finley. “If appointed counsel fails to take either
         of these steps, our courts have not hesitated to find that
         the petition was effectively uncounseled.”

Commonwealth v. Cherry, 155 A.3d 1080, 1083 (Pa. Super. 2017)

(citation omitted).

      Our review of the certified record reveals that Appellant specifically

requested that PCRA counsel file an amended PCRA petition on his behalf or

Turner/Finley, and ultimately requested the appointment of new counsel

once PCRA counsel indicated that he did not intend to pursue Appellant’s

matter any further.        In addition, PCRA counsel never sought to properly

withdrawal pursuant to the dictates of Turner/Finley.            Accordingly, we

conclude that Appellant did not receive the benefit of counsel, as

contemplated under Pa.R.Crim.P. 904(C), during the pendency of his initial

PCRA petition.     See Smith, 121 A.3d 1049, 1053; Cherry, 155 A.3d at

1083. Therefore, we vacate the order denying PCRA relief and remand to

the PCRA court to determine whether current PCRA counsel will continue to

represent Appellant by either filing an amended PCRA petition or a

Turner/Finley letter brief, or whether a new PCRA counsel should be

appointed.

      Order     vacated.    Case   remanded   with   instructions.   Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/14/2017




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