J-S22039-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                  Appellee                :
                                          :
                     v.                   :
                                          :
KEVIN WILLIAM KISELYK,                    :
                                          :
                  Appellant               :    No. 1863 WDA 2014

            Appeal from the PCRA Order Entered October 8, 2014
               in the Court of Common Pleas of Potter County,
             Criminal Division, at No(s): CP-53-CR-000059-2010

BEFORE:     PANELLA, LAZARUS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED MAY 22, 2015

      Kevin William Kiselyk (Appellant) appeals from the October 8, 2014

order which dismissed his petition deemed to have been filed pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We vacate

the order and remand with instructions.

      In December, 2010, Appellant was convicted by a jury of receiving

stolen property and possession of a firearm by one prohibited. On March 16,

2011, he was sentenced to an aggregate term of 91 to 182 months of

incarceration.   Appellant filed no direct appeal, but as a result of a PCRA

petition, his direct appeal rights were reinstated.     This Court affirmed

Appellant’s judgment of sentence, and our Supreme Court denied his

petition for allowance of appeal on June 16, 2014.      Commonwealth v.




*Retired Senior Judge assigned to the Superior Court.
J-S22039-15


Kiselyk, 91 A.3d 1296 (Pa. Super. 2013) (unpublished memorandum),

appeal denied, 94 A.3d 1008 (Pa. 2014).

      On August 14, 2014, Appellant filed, pro se, a petition for writ of

habeas corpus,1 in which he raised challenges to, inter alia, the legality of

his sentence and the collection of costs, fines, fees, and restitution. Petition

for Writ of Habeas Corpus, 8/14/2014, at 14-16. Thereafter, the PCRA court

entered an order appointing counsel to represent Appellant and to amend

the petition “as necessary.”        Order, 8/27/2014.    On September 30, 2014,

the PCRA court entered an order dismissing Appellant’s petition. However,

two days later, it filed a notice indicating that the petition would henceforth

be treated as a PCRA petition, and that it intended to dismiss the petition

without a hearing after 20 days.         Notice, 10/2/2014, at 1.2         Counsel for

Appellant   filed   a   response,    reiterating   alleged   errors   on   Appellant’s

sentencing form and in the recording of Appellant’s sentence.              Petition for

Reconsideration of Denial of PCRA Petition, 10/28/2014, at 1.

      On October 29, 2014, the PCRA court entered an order dismissing

Appellant’s petition.    Appellant timely filed a notice of appeal.         The PCRA

court ordered Appellant to file a statement of errors complained of on
1
  Although Appellant in his petition claimed to be filing for a writ of habeas
corpus pursuant to 42 Pa.C.S. § 6502, he instead quoted the jurisdiction and
proceedings section of the PCRA. Petition for Writ of Habeas Corpus,
8/14/2014, at 5 (quoting 42 Pa.C.S. § 9545).
2
  A “Notice and Order” with the same provisions was filed on October 8,
2014.


                                         -2-
J-S22039-15


appeal.   Appellant timely complied by filing a counselled statement which,

(1) although Appellant was convicted after a jury trial, inexplicably indicated

that Appellant “was promised a different plea and sentence[] as opposed to

the sentence the court imposed”; (2) noted that Appellant’s sentence was in

the standard range; and (3) somehow reached the following conclusion:

“Therefore, the only argument the Appellant would remain [sic] on appeal is

the discretionary aspects of sentencing.”      1925(b) Statement, 12/5/2014.

Although the issue stated in the 1925(b) statement is in no way related to

the issues addressed in the PCRA court’s Rule 907 Notice, the PCRA court

filed an opinion indicating that the reasoning for its dismissal can be found in

its October 8, 2014 notice of intent to dismiss.

      On appeal, Appellant’s counsel states the following question for our

review:

            Should the Superior Court reverse and remand the Potter
      County Trial Court of Common Pleas and find the trial court erred
      as a matter of fact and law when it:

            a.     Dismissed the Appellant’s second PCRA petition and
                   failed to permit a hearing on the [Appellant’s]
                   habeas corpus motion later converted to the
                   Appellant’s second PCRA petition without a formal
                   hearing?

Appellant’s Brief at 9.

      The    argument     section   of    Appellant’s   brief   is   based   upon

Commonwealth v. Karanicolas, 836 A.2d 940 (Pa. Super. 2003).                 That




                                         -3-
J-S22039-15


case, although it has nothing to do with the issue stated in Appellant’s

1925(b) statement, is factually similar to the instant case. In Karanicolas,

as in the instant case, Karanicolas’ first PCRA action resulted in the

reinstatement of his direct appeal rights.    After Karanicolas’ judgment of

sentence was affirmed by this Court during the nunc pro tunc direct appeal,

he filed another PCRA petition. Counsel was appointed, but the petition was

dismissed.      On appeal, counsel for Karanicolas sought to withdraw on the

basis that the untimeliness of the underlying PCRA petition rendered the

appeal frivolous.    This Court noted that, “[w]hen a petitioner is granted a

direct appeal nunc pro tunc in his first PCRA petition, a subsequent PCRA

petition is considered a first PCRA petition for timeliness purposes.” Id. at

944 (citing Commonwealth v. Lewis, 718 A.2d 1262 (Pa. Super. 1998)).

Applying the appropriate date for calculating when Karanicolas’ judgment of

sentence became final, it was clear that the instant, first PCRA petition was

timely filed.

      Counsel’s basis for concluding that Karanicolas’ appeal was frivolous

was thus invalid.

            Here, appellate counsel’s petition for leave to withdraw
      was based solely on counsel’s mistaken conclusion that
      Appellant’s current PCRA petition was untimely filed.
      Consequently, counsel failed to explain why the remainder of
      Appellant's  issues   lacked   merit,    in   compliance   with
      [Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
      Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
      banc)]. Although counsel did address Appellant's issues in his



                                      -4-
J-S22039-15


     “Anders” brief, counsel’s cursory analysis was obviously tainted
     by his misconception that Appellant’s PCRA petition was
     untimely. Appellate counsel’s petition to withdraw was a half-
     hearted amalgam of the Turner/Finley and Anders [v.
     California, 386 U.S. 738 (1967),] requirements, which
     ultimately succeeded neither in advancing Appellant’s claims nor
     certifying their lack of merit. Under these circumstances, we
     conclude that the record provides little or no evidence to
     demonstrate meaningful participation by appellate counsel.
     Thus, Appellant’s appeal from the disposition of his first PCRA
     petition was for all practical purposes uncounseled, depriving
     Appellant of the opportunity of legally trained counsel to advance
     his position in acceptable legal terms on appeal.

Id. at 947 (citations, quotation marks, and footnote omitted). Accordingly,

this Court remanded the case for the appointment of new counsel,

instructing that “[n]ewly appointed counsel may either proceed to develop

and advocate meritorious claims or seek to withdraw.” Id. at 948.

     Rule 904 of the Rules of Criminal Procedure requires the appointment

of counsel for an indigent petitioner on his or her first PCRA petition.

Pa.R.Crim.P. 904(C). “Clearly this rule is not limited to the mere naming of

an attorney to represent an accused, but also envisions that counsel so

appointed   shall   have   the   opportunity   and   in   fact   discharge   the

responsibilities required by his representation.” Commonwealth v. Fiero,

341 A.2d 448, 450 (Pa. 1975) (vacating the order dismissing Fiero’s petition

and ordering the appointment of counsel to file an amended petition where

the record was “devoid of any evidence of meaningful participation by

counsel”). See also Commonwealth v. Carrier, 431 A.2d 271, 274 (Pa.




                                     -5-
J-S22039-15


1981) (“[F]inding no evidence of meaningful participation by counsel, we

must conclude that the proceedings were, for all practical purposes,

uncounseled….”); Commonwealth v. Sangricco, 415 A.2d 65, 68-69 (Pa.

1980) (“Appointed counsel here, as in Fiero, not only failed to amend

appellant’s new pro se petition but also failed either to argue or to brief

appellant’s second set of claims.   Appellant thus was uncounselled at the

time the PCHA court summarily dismissed his second pro se petition.”);

Commonwealth v. Ollie, 450 A.2d 1026, 1028 (Pa. Super. 1982) (“When

appointed counsel fails to amend an inarticulately drafted pro se [] petition,

or fails otherwise to participate meaningfully, this court will conclude that

the proceedings were, for all practical purposes, uncounseled….” (citations

and internal quotation marks omitted)).

     As in these cases,3 we conclude that the PCRA petition at issue was

uncounselled for all practical purposes. Although counsel was appointed and

ordered to amend Appellant’s petition: no amended petition was filed; the

counselled 1925(b) statement neither bears any relation to the prior

proceedings nor any issue properly the subject of a PCRA petition; and the

appellate brief presents no argument on any issue previously raised.




3
   We recognize that many of these cases predate the PCRA. However,
Karanicolas, which undergoes a similar analysis, does not. Accordingly, the
cited cases are applicable.


                                    -6-
J-S22039-15


Appellant thus has been denied “legally trained counsel to advance his

position in acceptable legal terms.” Karanicolas, 836 A.2d at 947.

     Accordingly, we vacate the order which dismissed Appellant’s PCRA

petition and remand for the appointment of new counsel to provide the

representation to which Appellant is entitled under Pa.R.Crim.P. 904(C),

beginning with the filing of an amended PCRA petition or a no-merit letter

which satisfies all of the requirements of Turner and Finley.

     Order vacated. Case remanded with instructions.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 5/22/2015




                                    -7-
