J-S78031-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                Appellee                :
                                        :
           v.                           :
                                        :
ALLEN J. BENNETT,                       :
                                        :
                Appellant               :     No. 827 WDA 2017

               Appeal from the Order Entered May 19, 2017
                in the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0002049-2016

BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                 FILED JANUARY 11, 2018

     Allen J. Bennett (Appellant) appeals from the May 19, 2017 order that

denied his “motion for dismissal or removal of fines.”    Appellant’s counsel

has filed a petition to withdraw and a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009).   We deny counsel’s petition, vacate the trial court’s

May 19, 2017 order, and remand for further proceedings.

     Appellant cashed a check from his former employer knowing that

payment had been stopped. Proceeding pro se because he, at the time, did

not qualify for appointed counsel, Appellant ultimately pled guilty to one

count of receiving stolen property in exchange for the Commonwealth’s

withdrawal of the remaining charges.    On April 10, 2017, the trial court




* Retired Senior Judge assigned to the Superior Court
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sentenced Appellant to five years of probation along with costs, but

expressly declined to impose fines. N.T., 4/10/2017, at 15.

      On May 17, 2017, Appellant filed the above-referenced motion,

claiming therein that he received paperwork indicating that “fines, costs, and

fees totaling $3,198.00” had been imposed and asking the trial court “to

issue an order waiving these itemized accounts.”        Motion for Dismissal or

Removal of Fines, 5/17/2017, at ¶¶ 2, 4. The trial court denied the motion

by order of May 19, 2017.

      On June 6, 2017, Appellant filed a notice of appeal.       Appellant also

filed on that date a motion to proceed in forma pauperis (IFP) and to obtain

appointed counsel.      In response, the trial court ordered Appellant to file a

concise statement of errors complained of on appeal, granted Appellant

leave to proceed IFP on appeal as to filing fees, and instructed Appellant to

file an application with the Erie County Public Defender’s Office if he was

unable to afford counsel.      Order, 6/16/2017.    On July 13, 2017, counsel

from the Public Defender’s Office filed on Appellant’s behalf a motion to file

his concise statement nunc pro tunc, citing a family health emergency that

had delayed Appellant’s obtaining counsel. By order of July 17, 2017, the

trial court granted the motion, giving counsel 21 days to file a concise

statement. On August 7, 2017, counsel instead filed a statement of intent to

file an Anders brief.




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        In the Anders brief filed in this Court, counsel contends that the

appeal is wholly frivolous because Appellant’s motion to remove fines was a

post-sentence motion that was not filed within ten days of his judgment of

sentence. Anders Brief at 13.          Because untimely-filed post-sentence

motions do not toll the appeal period, Appellant’s appeal from his judgment

of sentence had to be filed on or before May 10, 2017.        Id.   Therefore,

Appellant’s notice of appeal filed on June 6, 2017 was not timely filed, and

this Court lacks jurisdiction over the appeal. Id. In the alternative, counsel

notes that no fines were imposed in the case; rather, the $3,188 at issue is

costs and fees, which the trial court did impose at sentencing. Id. at 14.

        We disagree with counsel’s characterization of Appellant’s May 17,

2017 motion as an untimely-filed post sentence motion. “[A]ll motions filed

after a judgment of sentence is final are to be construed as PCRA[1]

petitions.” Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013)

(citing Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super. 2007)

(collecting cases)).   See also Commonwealth v. Jackson, 30 A.3d 516,

521 (Pa. Super. 2011) (quoting Commonwealth v. Johnson, 803 A.2d

1291, 1293 (Pa. Super. 2002) (“‘We have repeatedly held that ... any

petition filed after the judgment of sentence becomes final will be treated as

a PCRA petition.’”).




1
    Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
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      Here, Appellant was sentenced on April 10, 2017.       Pursuant to the

PCRA, his judgment of sentence became final on May 10, 2017, when he

failed to file a direct appeal.    See 42 Pa.C.S. § 9545 (“[A] judgment

becomes final at the conclusion of direct review… or at the expiration of time

for seeking the review.”); Pa.R.Crim.P. 720 (“If the defendant does not file a

timely post-sentence motion, the defendant’s notice of appeal shall be filed

within 30 days of imposition of sentence….”). Accordingly, the PCRA court

should have treated Appellant’s May 17, 2017 motion as a timely-filed PCRA

petition.

      An indigent petitioner has a statutory right to the appointment of

counsel throughout the litigation of his first PCRA petition. Commonwealth

v. Williams, 167 A.3d 1, 5 (Pa. Super. 2017) (“The record indicates

[Williams] is indigent.    Thus, [Williams] was entitled to appointment of

counsel throughout all stages of litigating his first PCRA petition.”

(emphasis in original)).   Once appointed, PCRA counsel has the duty “to

either (1) amend the petitioner’s pro se petition and present the petitioner’s

claims in acceptable legal terms, or (2) certify that the claims lack merit by

complying with the mandates of” Commonwealth v. Turner, 544 A.2d 927

(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988) (en banc). Commonwealth v. Cherry, 155 A.3d 1080, 1083 (Pa.

Super. 2017).




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      Here, Appellant is indigent: he has qualified to proceed IFP on appeal

and to be represented by the Public Defender’s Office. However, he did not

have the assistance of counsel until after what should have been treated as

his first PCRA petition had been denied and he had filed a notice of appeal.

While counsel examined the record and opined that there were no non-

frivolous issues to be litigated in a direct appeal in the procedural posture in

which she found it, that does not satisfy Appellant’s rights.           Rather,

Appellant is entitled to have counsel examine the record for meritorious

PCRA claims and file an amended petition on his behalf. Id.

      Therefore, we deny counsel’s petition to withdraw, vacate the order

denying Appellant’s May 17, 2017 motion, and remand for counsel to consult

with Appellant and to file either an amended PCRA petition or a petition to

withdraw pursuant to Turner and Finley.

      Petition to withdraw denied.      Order vacated.    Case remanded for

further proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/2018




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