J-S26004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

NORMAN WILLIAMS, JR.

                            Appellant                  No. 452 MDA 2014


                 Appeal from the PCRA Order February 4, 2014
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0001173-2004


BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                         FILED SEPTEMBER 04, 2015

        Norman Williams, Jr., appeals pro se from the order entered in the

Court of Common Pleas of Dauphin County, dated February 4, 2014,

dismissing his amended petition filed under the Post-Conviction Relief Act

(PCRA).1     Williams seeks relief from the judgment of sentence of life

imprisonment imposed on February 28, 2005, following his jury conviction of

second-degree murder and criminal conspiracy to commit murder.2 For the

reasons set forth below, we remand this case to the PCRA court for the

appointment of counsel.


____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. §§ 2502(b) and 903, respectively.
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       The procedural history of this case as reflected in the certified record

follows. On January 10, 2005, a jury convicted Williams of the above-stated

crimes. On February 28, 2005, the court sentenced Williams to a term of life

imprisonment without the possibility of parole for the murder conviction, and

a concurrent term of 12 to 24 years’ incarceration for the conspiracy crime.

A panel of this Court affirmed his judgment of sentence, and the

Pennsylvania Supreme Court denied his petition for allowance of appeal.

See Commonwealth v. Williams, 898 A.2d 1136 (Pa. Super. 2006)

(unpublished memorandum), appeal denied, 907 A.2d 1102 (Pa. 2006).

       Williams filed a pro se PCRA petition on January 10, 2007.      Counsel

was appointed, and filed an amended PCRA petition on April 3, 2007.

Counsel then filed a motion to withdraw as counsel on July 23, 2007.3 Three

days later, the court granted counsel’s motion, and issued notice of its intent

to dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907.

On August 24, 2007, after receiving no response from Williams, the PCRA

court dismissed his petition, and Williams filed a notice of appeal that was

docketed on September 27, 2007. On July 17, 2009, a panel of this Court

remanded the matter, finding the record did not allow the panel to


____________________________________________


3
   Counsel did not file a “no-merit” letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc).




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definitively determine whether Williams had timely filed his notice of appeal.4

See Commonwealth v. Williams, 979 A.2d 838 (Pa. Super. 2009)

(unpublished memorandum). On remand, the PCRA court held a hearing on

September 2, 2009, and found Williams had filed a timely appeal.5

Nevertheless, on November 9, 2009, this Court vacated the July 26, 2007,

and August 24, 2007, orders, and remanded the matter, because we

determined      counsel    failed   to   satisfy   the   technical   prerequisites   of

Turner/Finley, and therefore, the PCRA court erred by granting counsel’s

request to withdraw. See Commonwealth v. Williams, 988 A.2d 732 (Pa.

Super. 2009) (unpublished memorandum).

       On remand again, Williams filed a pro se motion for leave to amend his

original PCRA petition.        In a December 9, 2010, order, the PCRA court

appointed new counsel and granted Williams leave to file a supplemental

petition. Williams, through counsel, then filed a supplemental PCRA petition

on July 7, 2011.       On August 2, 2011, the PCRA court issued a Rule 907

notice of its intent to dismiss the petition without a hearing.            During the

ensuing year, the court did not act on its Rule 907 notice. Williams filed a



____________________________________________


4
   The record does not reveal why this Court’s response was delayed by
almost two years.
5
    The court also issued a corresponding, supplemental opinion on
September 8, 2009.



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pro se PCRA petition on August 27, 2012, and pro se praecipe for entry of

judgment on November 29, 2013.

       On February 4, 2014, the PCRA court entered two separate orders.6

The first order stated:

             AND NOW, this 4th day of February, 2014, upon
       consideration of [Williams]’s pro se petition filed pursuant to the
       Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541 et seq., on
       August 27, 2012,

               IT IS HEREBY ORDERED that the said petition is
       DISMISSED WITHOUT PREJUDICE as it was filed while
       petitioner’s prior PCRA petition filed July 7, 2011 was pending.
       See Com v. Lark, 746 A.2d 585, 588 (Pa. 2000) (a subsequent
       PCRA petition may not be considered while a previous petition is
       still pending).

             IT IS FURTHER ORDERED that [Williams]’s pro se
       “Praecipe for Entry of Judgment” filed on November 29, 2013 is
       therefore moot.

Order, 2/4/2014.

       The second order provided, in relevant part:

             AND NOW, this 4th day of February[,] 2014, upon
       consideration of [Williams]’s supplemental PCRA petition filed
       pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541
       et seq. by court-appointed counsel on July 7, 2011, and the
       applicable statutory and caselaw,

             IT IS HEREBY ORDERED that the instant petition is
       DISMISSED. [Williams] is hereby advised of his right to appeal
       this Order to the Superior Court of Pennsylvania within thirty
       (30) from the date of this Order.


____________________________________________


6
    The orders were docketed and time-stamped two days later.



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Order, 2/4/2014. Williams filed a notice of appeal, which stated: “Notice is

hereby given that Norman Williams, Jr., above named defendant, hereby

appeals to the Superior Court of Pennsylvania from the order entered on

02/04/14 by the Honorable Judge Andrew H. Dowling dismissing petitioners

[sic] amended PCRA petition.” Notice of Appeal, 3/11/2014.7

       Initially, we must determine whether the present appeal is timely. The

order from which Williams appeals was dated February 4, 2014, and

docketed two days later. Williams is incarcerated, and his notice of appeal

was docketed on March 11, 2014, which was well past the 30-day appeal

period. See Pa.R.A.P. 903(a) (“[T]he notice of appeal ... shall be filed within

30 days after the entry of the order from which the appeal is taken.”).

Generally, “[u]pon receipt of the notice of appeal the clerk shall immediately

stamp it with the date of receipt, and that date shall constitute the date

when the appeal was taken, which date shall be shown on the docket.”

Pa.R.A.P. 905(a)(3).

       Under the “prisoner mailbox rule,” a pro se prisoner’s document is

deemed filed on the date he delivers it to prison authorities for mailing. See

generally, Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa. Super

2006). However, to avail oneself of the mailbox rule, a prisoner must supply
____________________________________________


7
   On March 12, 2014, the PCRA court ordered Williams to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Williams filed a concise statement on March 26, 2014. The court did not file
an opinion pursuant to Pa.R.A.P. 1925(a).



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sufficient proof of the date of the mailing. See Commonwealth v. Jones,

700 A.2d 423 (Pa. 1997); Commonwealth v. Perez, 799 A.2d 848 (Pa.

Super. 2002) (documentation required to support when notice of appeal was

placed in the hands of prison authorities for filing).

       Here, Williams dated the notice of appeal on February 21, 2014, and

on the document, there is a time-stamp from this Court stating that it was

received on February 28, 2014, well within the 30-day appeal period. Based

on the record, and applying the “prisoner mailbox rule,” we conclude that

Williams has provided sufficient proof that he filed a timely notice of appeal

on February 21, 2014. Therefore, his application for relief, filed March 27,

2014, is hereby granted.

       Nevertheless, we are unable to address the merits of Williams’s appeal

based on the following.        While we find the PCRA court acted properly in

dismissing without prejudice Williams’s pro se PCRA petition, filed on August

27, 2012, in its February 4, 2014, order, we agree with the court on

different grounds.8      Our review of the record indicates that Williams was

represented by counsel at that time.9 Therefore, this document was a legal

____________________________________________


8
   As stated above, the court found that Williams’s prior, counseled PCRA
petition was pending and therefore, dismissed his subsequent pro se petition
pursuant to Lark, supra.
9
   Specifically, we note counsel filed the July 7, 2011, PCRA petition, and
counsel was copied on the distribution list for the PCRA court’s August 2,
2011, Rule 907 notice, and the two February 4, 2014, orders.



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nullity, and the court did not err in dismissing the petition without prejudice.

See Commonwealth v. Leslie, 757 A.2d 984 (Pa. Super. 2000) (indicating

(1) PCRA court should have dismissed without prejudice defendant’s PCRA

petition because it was filed while her direct appeal was pending; and (2)

PCRA court erred by proceeding on the merits of the petition during the

pendency of the direct appeal); see also Commonwealth v. Nischan, 928

A.2d 349, 355 (Pa. Super. 2007) (citations omitted) (“Appellant had no right

to file a pro se motion because he was represented by counsel. This means

that his pro se post-sentence motion was a nullity, having no legal effect.”);

Commonwealth v. Hall, 476 A.2d 7, 9-10 (Pa. Super. 1984) (“[a]n

accused’s pro se actions have no legal effect while defense counsel remains

authorized to represent the accused in all aspects of the proceedings”)

(citation omitted).

       However, since PCRA counsel’s appointment, and with the exception of

the July 7, 2011, petition, he appears to have done nothing to further his

client’s interests.10    Moreover, the record indicates he is still counsel of

____________________________________________


10
    Additionally, our review of the record does not indicate whether the
August 27, 2012, pro se PCRA petition was forwarded by the clerk of courts
to Williams’s counsel of record pursuant to Pennsylvania Rule of Criminal
Procedure 576(a)(4) (“In any case in which a defendant is represented by an
attorney, if the defendant submits for filing a written motion, notice, or
document that has not been signed by the defendant’s attorney, the clerk of
courts shall accept it for filing, time stamp it with the date of receipt and
make a docket entry reflecting the date of receipt, and place the document
in the criminal case file. A copy of the time stamped document shall be
(Footnote Continued Next Page)


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record, and has not filed a petition to withdraw or been granted leave to

withdraw by another manner. It merits mention that this is still technically

Williams’s first attempt at post-conviction relief. As such, we are guided by

the following:

            An indigent petitioner is entitled to representation by
      counsel for a first petition filed under the PCRA. This right to
      representation     exists    throughout     the   post-conviction
      proceedings, including any appeal from disposition of the petition
      for post-conviction relief.      Once counsel has entered an
      appearance on a defendant’s behalf, counsel is obligated to
      continue representation until the case is concluded or counsel is
      granted leave by the court to withdraw his appearance.

Commonwealth v. Brown, 836 A.2d 997, 998-999 (Pa. Super. 2003)

(citations, quotation, quotation marks omitted.

      In addressing the petitioner’s right to counsel under the
      precursor to the PCRA, we admonished that when appointed
      counsel fails to amend an inarticulately drafted pro se [post-
      conviction]    petition, or    fails  otherwise    to  participate
      meaningfully, this court will conclude that the proceedings were,
      for all practical purposes, uncounselled and in violation of the
      representation requirement[.]

Commonwealth v. Hampton, 718 A.2d 1250, 1253 (Pa. Super. 1998)

(citations, quotation, quotation marks omitted). See also Commonwealth

v. Kutnyk, 781 A.2d 1259, 1262 (Pa. Super. 2001) (the petitioner was

“entitled to counsel to represent him despite any apparent untimeliness of

the petition or the apparent non-cognizability of the claims presented”).

                       _______________________
(Footnote Continued)

forwarded to the defendant’s attorney             and   the   attorney   for   the
Commonwealth within 10 days of receipt.”).



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       It is evident that Williams would like to appeal the dismissal of his

PCRA petition but we cannot discern from his pro se notice of appeal exactly

which one of the February 4, 2014, orders he takes issue with as he merely

states he is appealing the order dismissing his “amended” petition.       See

Notice of Appeal, 3/11/2014.             The Commonwealth argues Williams is

appealing from the order that dismissed his pro se PCRA petition, which

would result in a quashal.         See Commonwealth’s Brief at 6-8.   However,

because that it is not clear from Williams’s notice of appeal, we are not

persuaded by that contention.

       Accordingly, we are constrained to conclude Williams was not afforded

the right to counsel with respect to his first PCRA petition as his counsel was

neglectful in taking any further action before or after the February dismissal.

See Hampton, 718 A.2d at 1253 (“counsel’s inaction deprived the petitioner

the opportunity of legally trained counsel to advance his position in

acceptable legal terms”).

       Therefore, we direct the PCRA court to appoint new counsel11 and

within 60 days of the date of the filing of this memorandum, counsel is to:

(1) review Williams’s counseled, supplemental PCRA petition that was filed

on July 7, 2011, and dismissed by the court on February 4, 2014; and (2)

file either an advocate’s brief or an application to withdraw and “no-merit”

____________________________________________


11
     See Brown, 836 A.2d at 999.



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letter consistent with the dictates of Turner/Finley, including a letter, which

notifies Williams of the petition to withdraw and advises him of his appeal

rights.

      Williams and the Commonwealth will then each have 30 days in which

to file a response, if either so desires. We also direct the PCRA court to file a

supplemental trial court opinion addressing these matters within 30 days

thereafter.

      The Prothonotary of this Court is directed to remand the certified

record to the PCRA court.

      Case remanded for proceedings consistent with this memorandum.

Application for relief granted. Panel jurisdiction retained.




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