J-S24009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

SAMUEL C. PIERCE

                            Appellant                  No. 653 WDA 2016


                   Appeal from the PCRA Order April 14, 2016
             In the Court of Common Pleas of Westmoreland County
               Criminal Division at No(s): CP-65-CR-0004510-2009


BEFORE: PANELLA, J., STABILE, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, J.                                 FILED MAY 5, 2017

        Appellant, Samuel C. Pierce, appeals pro se from the denial of his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546, as premature. We vacate and remand for

appointment of PCRA counsel.

        This case can be best described as a procedural debacle of the lower

court’s and the parties’ making. Once the procedural mess is untangled, the

disposition is relatively straightforward.

        On March 17, 2009, Appellant was charged with involuntary deviate

sexual intercourse (“IDSI”), statutory sexual assault, indecent assault, and


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
    Former Justice specially assigned to the Superior Court.
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corruption of minors.1 A bench trial took place in May 2015. The trial court

acquitted Appellant of IDSI and corruption of minors, but found him guilty of

statutory sexual assault and indecent assault. Appellant was immediately

sentenced to an aggregate term of five to ten years’ imprisonment, to be

followed by a two-year term of probation. As discussed later, in a move

contrary to the applicable statute, following sentencing, the trial court

ordered the Sexual Offender’s Assessment Board (“SOAB”) to conduct a

sexually violent predator (“SVP”) evaluation to determine if Appellant should

be designated as an SVP under 42 Pa.C.S.A. § 9799.24.

       On March 28, 2016, Appellant filed a pro se PCRA petition.2 As

Appellant’s SVP determination was still pending, the trial court denied

Appellant’s PCRA petition, without prejudice, as premature. Appellant filed a

pro se notice of appeal on May 4, 2016.3

       On June 30, 2016, following an SVP evaluation by the SOAB, the trial

court held Appellant’s SVP hearing. Based upon the evaluation as well as the

testimony presented at the hearing, the trial court found Appellant met the

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1
  18 Pa.C.S.A. §§ 3123(A)(7), 3122.1, 3126, and 6301(A)(1), respectively.
2
  Under Pennsylvania law, there is no right to hybrid representation either at
trial or on the appellate level. See Commonwealth v. Padilla, 80 A.3d
1238, 1259 (Pa. 2013). As such, when a defendant who is still technically
represented by counsel files a pro se motion, brief, or petition, the court
should file it and forward the document to counsel. See id., at 1258.
3
  Appellant’s notice of appeal was dated April 29, 2016, but was not
docketed until May 4, 2016.



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criteria for an SVP. Thereafter, without filing a separate notice of appeal,

Appellant’s counsel filed an appellate brief challenging the sufficiency of the

evidence supporting Appellant’s convictions of statutory sexual assault and

indecent assault, as well as his classification as an SVP.

      Prior to reaching the merits of this appeal, we must clarify which

issues Appellant has properly presented for our review. The formal purpose

of our Court “is to maintain and effectuate the decisional law of the Supreme

Court of Pennsylvania as faithfully as possible.” Commonwealth v.

Simmons, 565 A.2d 481, 484 (Pa. 1989) (citation omitted). To that end, we

do not have the power to review the work of a lower court without a

statutory right of appeal and we do not have any broad discretionary powers

of review. See id.

      In general, a party only has a statutory right of appeal as of right from

a final order, which encompasses a judgment, decision, decree, sentence,

and adjudication. See Pa.R.A.P. 102. More specifically, a final order is an

order that disposes of all claims and all parties, or contains an express

determination that an immediate appeal would facilitate a resolution of the

entire case. See Pa.R.A.P. 341(a),(b)(1),(3),(c). Here, it is important to note

that the instant appeal to this court is based solely on the trial court’s denial

of the PCRA petition. This is a final order for purposes of our review and

pertains exclusively to Appellant’s claims of ineffective assistance of trial

counsel.




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      Additionally, “a single appeal is [generally] incapable of bringing on for

review more than one final order, judgment or decree.” General Elec.

Credit Corp. v. Aetna Cas. & Sur. Co., 263 A.2d 448, 452 (Pa. 1970). Any

argument that the PCRA appeal implicitly includes a review of the judgment

of sentence is unavailing. The judgment of sentence was a separate,

appealable final order that trial counsel neglected to appeal. Further, at the

time of the filing of the notice of appeal, Appellant’s SVP determination had

yet to take place. Appellant cannot logically argue that this determination

was intended to be included as part of his appeal. Cf. K.H. v. J.R., 826 A.2d

863, 871 (Pa. 2003) (“[I]n the context of a single action, a notice of appeal

filed from the entry of judgment will be viewed as drawing into question any

prior non-final orders that produced the judgment.”)

      Accordingly, our jurisdiction is confined to a review of that order. We

refuse to address the challenges to Appellant’s judgment of sentence or SVP

determination raised by counsel in his appellate brief.

      Turning to Appellant’s sole issue presented on appeal, the trial court

contends that it dismissed Appellant’s PCRA petition because it was filed

prior to the finalization of Appellant’s judgment of sentence, and therefore

was premature. A defendant may not file a PCRA petition prior to a

judgment of sentence becoming final; a petition will only be considered after

he has waived or exhausted his direct appeal rights. See Commonwealth

v. Fralic, 625 A.2d 1249, 1252 n.1 (Pa. Super. 1993) (holding that




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appellant’s PCRA petition was premature because he filed it before he

exhausted his direct appeal rights).

       Here, because of the unique circumstances of the case and the lower

court’s actions, the finality of Appellant’s judgment of sentence presents a

procedural quagmire. Due to Appellant’s convictions of sexually violent

offenses,4 the trial court was required to order an SVP assessment. See 42

Pa.C.S.A. § 9799.24(a). This assessment should have been conducted prior

to the imposition of sentence. See 42 Pa.C.S.A. § 9799.24(a); see also

Commonwealth v. Baird, 856 A.2d 114, 118 (Pa. Super. 2004) (vacating

judgment of sentence based on trial court’s failure to conduct SVP hearing

prior to sentencing). However, the trial court did not follow the procedure

outlined by the statute, and instead chose to sentence Appellant more than

one year before determining his SVP status.

       Prior panels of this Court have addressed the timing of the finality of

sentence in situations where a defendant waives his right to have his SVP

status determined prior to sentencing. For instance, in Commonwealth v.

Whanger, 30 A.3d 1212 (Pa. Super. 2011), we found that although §

9799.24(a) requires that a defendant’s SVP assessment must be conducted
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4
  Section 9799.12 defines sexually violent offenses as “offense[s] specified
in section 9799.14 (relating to sexual offenses and tier system) as a Tier I,
Tier II, or Tier III sexual offense.” 42 Pa.C.S.A. § 9799.12. Appellant was
convicted of statutory sexual assault and indecent assault, which are
classified as Tier II and Tier I sexual offenses, respectively. See 42
Pa.C.S.A. § 9799.14(c)(1.1); (b)(6).



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by the SOAB prior to sentencing, a defendant can waive the pre-sentence

requirement in a written colloquy. See id., at 1214. Further, if a defendant

knowingly waives the pre-sentence SOAB assessment requirement, the

judgment of sentence is not final until the SVP determination is rendered.

See Commonwealth v. Schrader, 141 A.3d 558, 561 (Pa. Super. 2016).

       However, we have not explicitly addressed the finality of a judgment of

sentence where a defendant has not waived his right to have the SVP

hearing conducted prior to sentencing and the SVP hearing occurs after

sentencing, unchallenged.5 This is the situation we encounter here. There is

no evidence of record that Appellant ever waived the right to a pre-sentence

SVP hearing. As such, the holding in Schrader delaying the finality of the

judgment of sentence until the SVP determination is not applicable here.

Additionally, we have long held that an SVP order is a non-punitive collateral

consequence of a criminal judgment of sentence. See Commonwealth v.

Harris, 972 A.2d 1196, 1201 (Pa. Super. 2009). “As the SVP order is

collateral to the sentence, but a final order relative to the sole issue before

the SVP court, a defendant whose SVP hearing occurs after sentencing can

obviously appeal from that order regardless of whether it makes judgment of


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5
  Of course, had trial counsel objected to the lower’s court’s failure to adhere
to the procedural mandates of the applicable statute and timely appealed
Appellant’s judgment of sentence, we would have simply vacated Appellant’s
judgment of sentence, remanded for resentencing, and avoided the
procedural problem. See Baird, 856 A.2d at 118.



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sentence final.” Commonwealth v. Whanger, 30 A.3d 1212, 1219 n.3 (Pa.

Super. 2011) (Bowes, J., concurring opinion). Thus, in this unique situation,

we find that Appellant’s judgment of sentence became final thirty days after

sentencing. See Pa.R.Crim.P. 903(a).

       As such, Appellant’s PCRA petition was timely. See Pa.R.Crim.P.

901(A). However, we cannot reach the merits of Appellant’s PCRA petition

because the lower court failed to appoint counsel prior to dismissing his

PCRA petition.6

       Rule 904 of the Rules of Criminal Procedure requires the appointment

of counsel for an indigent petition on his first PCRA petition. See

Pa.R.Crim.P. 904(c). As such, this Court has stated as follows:

       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 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 and internal quotation marks omitted).
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6
  We recognize that technically trial counsel represented Appellant at the
time Appellant filed his pro se PCRA petition, and later represented Appellant
at his SVP hearing. However, as Appellant’s allegations of ineffectiveness
within his PCRA petition were aimed at trial counsel, it would have been
inappropriate for trial counsel to assist Appellant with his PCRA petition.
Additionally, there is no evidence of record that trial counsel was in any way
involved with the filing, or disposition, of Appellant’s PCRA petition.



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      Here, our review of the certified record reflects that Appellant filed his

first petition for PCRA relief acting pro se, averred a lack of resources to hire

an attorney, and requested the court to appoint counsel to represent him.

See PCRA Petition, 3/28/16, at 7. Indeed, Appellant is proceeding in forma

pauperis in this appeal.

      Because the court did not appoint counsel to represent Appellant in

this first PCRA petition, we vacate the dismissal order. We remand this case

to the PCRA court to appoint counsel to represent Appellant, and for further

proceedings as are appropriate under the PCRA. See Pa.R.Crim.P. 904(c);

Commonwealth v. Evans, 866 A.2d 442, 444-446 (Pa. Super. 2005).

      Order vacated. Case remanded for proceedings consistent with this

decision. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/5/2017




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