J. S02012/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                   v.                   :
                                        :
GUIDO RYAN LaVELLA,                     :         No. 1505 EDA 2016
                                        :
                        Appellant       :


                 Appeal from the PCRA Order, April 29, 2016,
               in the Court of Common Pleas of Chester County
               Criminal Division at No. CP-15-CR-0003645-2013


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED FEBRUARY 22, 2017

     Guido Ryan LaVella appeals, pro se, from the order entered in the

Court of Common Pleas of Chester County that dismissed, without a hearing,

his first petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. After careful review, we vacate the order and

remand with instructions.

     The PCRA court set forth the following procedural history in its

April 12, 2016 notice of intent to dismiss PCRA petition pursuant to

Pa.R.Crim.P. 907(1):

           [Appellant] entered into an open guilty plea on
           August 14, 2014 to five (5) counts of Theft by
           Deception, 18 Pa.C.S.[A.] § 3922(a)(1).           A
           Pre-Sentence Investigation Report was completed,
           and a sentencing hearing was conducted on
           October 24, 2014. [Appellant] was sentenced by the
           court to an aggregate term of not less than six (6)
J. S02012/17


            years four (4) months, not more than fifteen (15)
            years in prison.      [Appellant] filed a motion for
            reconsideration on November 3, 2014, and oral
            argument on that motion was held on January 9,
            2015. [Appellant’s] motion was granted in part and
            denied in part, and [appellant’s] sentence was
            amended on February 5, 2015 to include the proper
            [Recidivism Risk Reduction Incentive] minimum
            sentence calculation. [Appellant] filed an appeal to
            the Superior Court on March 4, 2015 which was
            subsequently     withdrawn     on    May  5,   2015.
            [Appellant] then filed the instant pro se PCRA
            petition on September 2, 2015, and a related “First
            Supplemental Petition” on November 16, 2015. The
            court issued a Notice of Intent to Dismiss the PCRA
            petition on November 30, 2015. Pursuant to the
            provisions of Pa.R.A.P. 907(1), [appellant] was
            informed that he had twenty (20) days from the
            docketing of that Notice (which occurred on
            December 1, 2015) to respond, or else his petition
            would be dismissed. [Appellant’s] Response to the
            court’s notice was filed on December 14, 2015.
            Upon review of [appellant’s] response, on January 7,
            2016 the court vacated its Notice of Intent to
            Dismiss and appointed Robert P. Brendza, Esquire to
            represent [appellant] in these PCRA proceedings.
            Counsel filed a Petition to Withdraw as PCRA Counsel
            per Commonwealth v. Finley, 550 A.2d 213
            (Pa.Super. 1988) [(en banc)] and Commonwealth
            v. Turner, 544 A.2d 927 (Pa. 1988) on March 29,
            2016.

PCRA court’s notice of intent to dismiss PCRA petition pursuant to

Pa.R.Crim.P. 907(1), 4/12/16 at 2 n.1.

      The record reveals that the PCRA court’s April 12, 2016 notice of intent

to dismiss PCRA petition pursuant to Rule 907(1) properly informed

appellant of his right to respond to the proposed dismissal within 20 days of

the date of the notice. The record further reflects that appellant certified in



                                     -2-
J. S02012/17


a proof of service that he served on the PCRA court, among others, by

U.S. First Class Mail, his response to show cause to notice of intent to

dismiss PCRA petition pursuant to Rule 907(1) on April 27, 2016.

Appellant’s response and proof of service are time-stamped as being

received by the Clerk of Courts of Chester County on May 2, 2016. Although

no timeliness issue exists with respect to the filing of appellant’s response,

the record raises a concern that the PCRA court may have dismissed

appellant’s PCRA petition prematurely because (1) appellant’s response is

time-stamped as being received on May 2, 2016, and the PCRA court

entered its order dismissing the petition on April 29, 2016; and (2) the PCRA

court attempted to respond to appellant’s response to its notice of intention

to dismiss nearly one month after it entered its order that, in fact, dismissed

appellant’s PCRA petition.

      The next relevant docket entry reveals that on May 13, 2016,

appellant filed a notice of appeal to this court of the PCRA court’s April 29,

2016 order dismissing his PCRA petition.      On May 23, 2016, which was

nearly one month after the PCRA court entered its order dismissing

appellant’s PCRA petition, the PCRA court filed an “Amended Order” in which

it attempted to vacate its April 29, 2016 order dismissing appellant’s PCRA

petition. In the May 23, 2016 filing, the PCRA court attempts to “address




                                     -3-
J. S02012/17


herein the issues raised by [appellant] in his second Response of April 28,

2016.”1 (Docket #38.)

      Although a trial court may generally modify or rescind any order within

30 days of its entry, it is prohibited from doing so once an appeal has been

taken. See 42 Pa.C.S.A. § 5505 (providing that “a court upon notice to the

parties may modify or rescind any order within 30 days after its entry,

notwithstanding the prior termination of any term of court, if no appeal from

such order has been taken”). Here, appellant filed his notice of appeal on

May 13, 2016, appealing from the April 29, 2016 order that is, of course, the

subject of this appeal. Once appellant filed that notice of appeal, the PCRA

court lacked jurisdiction to vacate its April 29, 2016 order and enter another

order dismissing the petition and responding to appellant’s response to the

PCRA court’s April 12, 2016 notice of intention to dismiss.

      In light of the puzzling procedural history of this case and the concern

it raises regarding the premature dismissal of appellant’s PCRA petition, we

are constrained to vacate the PCRA court’s April 29, 2016 order dismissing

appellant’s PCRA petition and remand to the PCRA court with instructions to

provide the parties with the requisite notice of intention to dismiss pursuant




1
  We are unable to determine why the PCRA court referred to appellant’s
response as the “[r]esponse of April 28, 2016” because appellant dated the
response April 27, 2016 and it is time-stamped as being received by the
Clerk of Courts of Chester County on May 2, 2016.


                                     -4-
J. S02012/17


to Rule 907; afford appellant 20 days to respond to the proposed dismissal;

and thereafter enter an order on the petition.

      Order vacated. Case remanded with instructions. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/22/2017




                                    -5-
