J-S66023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PAUL JAY BONUS,                            :
                                               :
                      Appellant                :   No. 188 WDA 2017

                  Appeal from the PCRA Order January 4, 2017
     In the Court of Common Pleas of Somerset County Criminal Division at
                       No(s): CP-56-CR-0000227-2013


BEFORE:      BENDER, P.J.E., DUBOW, J., and PLATT*, J.

MEMORANDUM BY DUBOW, J.:                             FILED DECEMBER 15, 2017

        Appellant, Paul Jay Bonus, appeals from the January 4, 2017 Order

dismissing his first Petition pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546.                 We vacate and remand with

instructions.

        On July 9, 2013, Appellant entered an open guilty plea to Rape by

Forcible Compulsion, 18 Pa.C.S. § 3121(a)(1).1          On October 2, 2013, the

trial court sentenced Appellant to a mandatory minimum sentence of 10 to

____________________________________________


1
  In exchange for Appellant’s guilty plea, the Commonwealth withdrew 10
other charges: Rape by Threat of Forcible Compulsion, Sexual Assault,
Aggravated Indecent Assault without Consent, Aggravated Indecent Assault
by Forcible Compulsion, Aggravated Indecent Assault by Threat of Forcible
Compulsion, Incest of Minor, Corruption of Minors, Indecent Assault without
Consent, Indecent Assault by Forcible Compulsion, and Indecent Assault by
Threat of Forcible Compulsion.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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20 years’ incarceration pursuant to 42 Pa.C.S. § 9718(a)(1).                At both

Appellant’s guilty plea hearing and sentencing hearing, Appellant’s counsel

informed the court that Appellant’s guilty plea to Rape by Forcible

Compulsion of a victim under the age of 16 carried a mandatory minimum

ten-year sentence pursuant to 42 Pa.C.S. § 9718(a)(1).             See N.T. Guilty

Plea Hearing, 7/9/13, at 3; N.T. Sentencing Hearing, 10/2/13, at 4.               The

trial court sentenced Appellant accordingly. See N.T. Sentencing Hearing, at

at 5; Sentencing Order, 10/2/13; Sentencing Guideline Form, 10/4/13.

       The record does not reflect, however, that counsel or the court

informed Appellant that less than one month before Appellant’s guilty plea

hearing on June 17, 2013, the U.S. Supreme Court decided Alleyne v.

United States, 113 S.Ct. 2151 (U.S. 2013). The Court in Alleyne held that

any fact that increases a mandatory minimum sentence for a crime—other

than the fact of a prior conviction—is an element of that crime, which much

be   submitted     to   a jury.       Alleyne,   thus, called   into   question   the

constitutionality of mandatory minimum sentences.2

       Following his sentencing, Appellant did not file a timely Post-Sentence

Motion or a direct appeal to this Court.           Thus, Appellant’s Judgment of

Sentence became final on November 2, 2013. See 42 Pa.C.S. § 9545(b)(3)


____________________________________________


2
  On June 20, 2016, the Pennsylvania Supreme Court in Commonwealth v.
Wolfe, 140 A.3d 651, 663 (Pa. 2016) specifically found Section 9718, the
statute pursuant to which the court sentenced Appellant, unconstitutional.



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(mandating that a Judgment of Sentence becomes final at the conclusion of

direct review or at the expiration of the time for seeking review);

Pa.R.Crim.P. 720(A)(3).

      On January 28, 2014, the trial court docketed a handwritten letter,

post-marked November 22, 2013, from Appellant in which Appellant

requested reconsideration of his sentence. Appellant claimed that he “was

sentenced to a longer time than [he] deserves” because this was his first

offense.   There is a notation in the docket that the court had sent to

Appellant’s trial counsel, Steven L. Miller of the Public Defender’s office, a

copy of the letter on November 26, 2013. Neither Appellant’s counsel nor

the court took any action in response to Appellant’s letter.

      On September 14, 2015, Appellant filed a pro se Motion to Modify and

Correct Sentence, which the court treated as a first PCRA Petition.    In his

Motion, Appellant challenged the legality of his mandatory minimum

sentence pursuant to Alleyne. That same day, Appellant also filed a pro se

“Motion for Withdrawal of Counsel Inter Alia Ineffective Assistance of

Counsel,” alleging trial counsel had abandoned him.

      On December 7, 2015 the PCRA court entered an Order appointing

Appellant new counsel and scheduling a hearing on Appellant’s Petition.

      Following the hearing, the PCRA court took the matter under

advisement “to determine whether or not [Appellant’s] Petition has been

timely filed.” PCRA Order, 1/26/16.




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      On May 26, 2016, the PCRA court issued a Memorandum and Notice of

Intent to Dismiss Appellant’s PCRA Petition pursuant to Pa.R.Crim.P. 907

finding the Petition untimely and concluding that Appellant had failed to

plead and prove any exceptions to the PCRA’s time-bar. See 42 Pa.C.S. §

9545(b)(1)(i)-(iii).

      On August 10, 2016, Appellant filed a Response to the court’s Rule 907

Notice in which he asserted that his Petition was not untimely because on

June 20, 2016, the Pennsylvania Supreme Court had affirmed this Court’s

ruling in Commonwealth v. Wolfe, 140 A.3d 651, 663 (Pa. 2016), finding

Section 9718 to be unconstitutional.

      On August 15, 2016, Appellant filed an additional Motion for Post

Conviction Collateral Relief, in which he reiterated the arguments set forth in

his Response to the court’s Rule 907 Notice. Because the PCRA court had

not dismissed Appellant’s September 14, 2015 PCRA Petition, nor granted

leave for Appellant to file an Amended Petition, the court treated this filing

as a supplement to Appellant’s Response to the court’s Rule 907 Notice.

Appellant argued that this Petition was timely because he filed it within 60

days of the Supreme Court’s Opinion in Wolfe, supra.

      On January 4, 2017, the PCRA court concluded that Appellant’s PCRA

Petition was untimely, and that Appellant had not proved the applicability of

any of the PCRA’s exceptions to the time-bar. The court noted that, because

Appellant’s Judgment of Sentence became final on November 2, 2013, in

order to be timely, Appellant was required to file a PCRA Petition on or

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before November 2, 2014. Appellant filed a PCRA Petition on September 9,

2015.     Thus, the court concluded that Appellant’s Petition was patently

untimely. The court further noted that Appellant had not raised a question

of the retroactivity of Alleyne, because the Supreme Court decided Alleyne

before Appellant entered his guilty plea to Rape. PCRA Ct. Op, 1/4/17, at 5.

        In a footnote, the PCRA court acknowledged for the first time that on

November 26, 2013, the court received Appellant’s letter requesting

reconsideration of his sentence.   Id. at n 1.     The trial court characterized

this letter as an untimely Post-Sentence Motion.

        Appellant timely appealed from the January 4, 2017 Order dismissing

his PCRA Petition.     Both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

        Before reaching the merits of Appellant’s issues on appeal, we note

that the trial court erroneously failed to treat Appellant’s November 26, 2013

letter challenging his sentence as a timely first PCRA Petition.            See

Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001)

(holding that, regardless of what a defendant titles his Petition, “the PCRA is

the exclusive vehicle for obtaining post-conviction collateral relief.”).   See

also Commonwealth v. Evans, 866 A.2d 442, 443-44 (Pa. Super. 2005)

(concluding that a Motion for Reconsideration or Modification of Sentence

should be treated as PCRA Petition); Commonwealth v. Beck, 848 A.2d

987, 989 (Pa. Super. 2004) (concluding that collateral challenge to legality

of sentence for failure to give credit for time served must be brought under

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the PCRA, despite being labeled as a Petition for habeas corpus);

Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002)

(concluding that a Motion to Vacate Sentence qualified as a PCRA Petition);

Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000)

(concluding that a Motion to Correct Illegal Sentence would be treated as

PCRA Petition).

      Given   the   trial   court’s   failure   to   properly   consider   Appellant’s

November 26, 2013 letter as a first PCRA Petition, “we could vacate and

remand on this basis alone, as this conclusion by the court is in error.”

Kutnyak, 781 A.2d at 1262.

      Further, defendants have a general rule-based right to the assistance

of counsel for their first PCRA Petition.              Pa.R.Crim.P. 904(C).      See

Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009) (en

banc) (stating, “a criminal defendant has a right to representation of counsel

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

process.”).   “The indigent petitioner’s right to counsel must be honored

regardless of the merits of his underlying claims, even where those claims

were previously addressed on direct appeal, so long as the petition in

question is his first.”     Commonwealth v. Powell, 787 A.2d 1017, 1019

(Pa. Super. 2001) (citation omitted).

      Thus, “where an indigent, first-time PCRA petitioner was denied his

right to counsel—or failed to properly waive that right—this Court is required

to raise this error sua sponte and remand for the PCRA court to correct that

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mistake.”   Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super.

2011).

      Although the court forwarded Appellant’s trial counsel a copy of

Appellant’s pro se November 26, 2013 letter, it is not evident from the

record whether counsel still represented Appellant at that time. Thus, given

the nature of the relief Appellant sought and that Appellant’s sentence was

illegal at the time of his sentencing, it was incumbent upon the court to

ensure that Appellant had counsel, or had properly waived counsel, for what

was, in actuality, his first PCRA Petition. See Commonwealth v. Grazier,

713 A.2d 81 (Pa. 1998).      The lower court erred in not appointing PCRA

counsel to Appellant following its receipt of his November 2013 letter.

      Accordingly, we vacate the court’s January 4, 2017 Order dismissing

Appellant’s “second” PCRA Petition and remand for Appellant’s appointed

counsel to file an amended first PCRA Petition.

      Order vacated. Case remanded. Jurisdiction relinquished.

      President Judge Emeritus Bender joins this memorandum.

      Judge Platt concurs in the results.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2017

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