J-S96016-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                     v.

MORRIS WILLIAMS

                          Appellant                  No. 259 WDA 2016


                Appeal from the PCRA Order December 21, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0008406-1987


BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.

MEMORANDUM BY BOWES, J.:                          FILED JANUARY 12, 2017

        Morris Williams appeals from the December 21, 2015 order dismissing

his PCRA petition as untimely filed. We vacate the order and remand for the

appointment of counsel.

        Appellant was convicted in this action of robbery after he and his co-

defendant committed an armed robbery of Steven Davenport on July 5,

1987.     Appellant was sentenced to seven and one-half to fifteen years

imprisonment, and we affirmed on December 19, 1988. Commonwealth v.

Williams, 555 A.2d 944 (Pa.Super. Docket No. 205 Pittsburgh 1988, filed
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December 19, 1988).1 The next docket entry appears on October 8, 2015,

when Appellant filed his first PCRA petition pro se.          In that petition,

Appellant reported that he did not have counsel, was indigent, and wanted a

lawyer appointed to represent him. Appellant’s PCRA petition was dismissed

as untimely. On appeal, Appellant raises these arguments:

       1. Did ineffective Assistance of Counsel representation fall below
       standard of reasonableness, an counsel's deficient performance
       prejudice the appellant, violating rules of professional conduct an
       allowing others to do the same?

       2. Did Judge Walter Little abuse His discretion by ignoring the
       commonwealths illegal procedure process of some robbery case
       that prosecutorial misconduct so infect the trial with unfairness
       as to make the resulting conviction a denial of due process?

Appellant’s brief at 5.

       This Court reviews the “denial of PCRA relief to determine whether the

findings of the PCRA court are supported by the record and free of legal

error.” Commonwealth v. Roane, 142 A.3d 79, 86 (Pa. Super. 2016)
____________________________________________


1
  We note that it is unclear whether Appellant is still serving the sentence
imposed in this matter. He was convicted at criminal action numbers 87-
07597 and 87-08029 of second degree murder and robbery in connection
with an event that occurred on July 3, 1987. Appellant tried to rob Mark
Brown, who was in the process of purchasing drugs from someone on the
street, and then shot and killed the victim. We affirmed his sentence of life
imprisonment imposed therein. See Commonwealth v. Williams, 944
A.2d 944 (Pa.Super. Docket No. 644 Pittsburgh 1988, filed December 28,
1988) (unpublished memorandum).          The record in this case does not
indicate if the sentence was imposed consecutively to the life term imposed
in that action. There is just a sentencing order in the certified record.
Neither the Commonwealth nor the PCRA court indicated that Appellant is
not serving a sentence for purposes of this action.



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(quoting Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)). “Any

petition” filed under the PCRA “shall be filed within one year of the date the

judgment becomes final[.]” 42 Pa.C.S. § 9545(b)(1). We agree with the

PCRA court and the Commonwealth that Appellant’s 2015 petition appears

patently untimely.    Appellant’s judgment of sentence became final on

January 18, 1989, thirty days after we affirmed on direct appeal, thus giving

him until January 18, 1990, to file a timely PCRA petition.      42 Pa.C.S. §

9545(b)(3) (“A judgment becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review.”).

      Additionally, the present petition is not saved by the proviso included

with the November 17, 1995 enactment of § 9545.         That provision stated

“that a petition where the judgment of sentence became final before the

effective date of the amendments shall be deemed timely if the petitioner's

first petition was filed within one year of the effective date of the

amendments.      See Act of November 17, 1995, P.L. 1118, No. 32

(Spec.Sess. No. 1), § 3(1).”   Commonwealth v. Alcorn, 703 A.2d 1054,

1057 (Pa.Super. 1997) (emphasis in original).          Section 9545 became

effective on January 16, 1996. While Appellant’s judgment of sentence was

final prior to 1995, his petition was not filed by January 16, 1997, within one

year of the effective date of the 1995 amendments, rendering that savings

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clause inapplicable. Additionally, we are aware that Appellant’s allegations

of ineffective assistance of trial counsel do not fall within any of the

enumerated exceptions to the one-year time bar.           Commonwealth v.

Davis, 816 A.2d 1129 (Pa.Super. 2003) (collecting cases).

      Despite the rather obvious untimeliness of this petition, however, it is

clear that Appellant was entitled to have counsel appointed to litigate it since

it was the first PCRA petition that he presented in this action. Our Supreme

Court articulated in Commonwealth v. Albrecht, 720 A.2d 693, 699 (Pa.

1999), that “denial of PCRA relief cannot stand unless the petitioner was

afforded the assistance of counsel.”     Consistently therewith, the en banc

court in Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa.Super.

2009) (en banc) observed: “Pursuant to the rules of criminal procedure and

interpretive case law, a criminal defendant has a right to representation of

counsel for purposes of litigating a first PCRA petition through the entire

appellate process.”

      The timeliness of the PCRA petition is irrelevant for purposes of

entitlement to appointed counsel.     In Commonwealth v. Ferguson, 722

A.2d 177 (Pa.Super. 1998), we held that where a defendant has asked for

appointed counsel, a PCRA petition cannot be denied based upon a PCRA

court’s independent review and determination that the petition is untimely.

This Court noted that there is an absolute right to appointed attorney for a

first PCRA petition, even if a PCRA petition is facially untimely. Accord

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

Commonwealth v. Guthrie, 749 A.2d 502 (Pa.Super. 2000).                  These

decisions likewise stand for the proposition that the improper deprivation of

a first-time PCRA petitioner’s right to counsel must be raised by this Court

sua sponte. Commonwealth v. Stossel, 17 A.3d 1286 (Pa.Super. 2011).

Hence, we vacate the order and remand for the appointment of counsel.

     Order vacated. Case remanded. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2017




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