J-S95013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JARVAY M. DAVIS

                            Appellant               No. 1036 EDA 2016


              Appeal from the PCRA Order Entered March 21, 2016
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0008270-2009


BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                         FILED MARCH 13, 2017

       Appellant, Jarvay M. Davis, appeals the March 21, 2016 order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-46. We vacate and remand.

       The record reveals that, on July 19, 2012, Appellant pleaded guilty to

attempted burglary, conspiracy, and possession of an instrument of crime.1

The trial court imposed three sentences of one to five years of incarceration,

two of which ran concurrently to another sentence Appellant was serving,

and one of which ran consecutive. Appellant did not file a direct appeal. On




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1
    18 Pa.C.S.A. §§ 901, 3502, 903, and 907, respectively.
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May 30, 2013, Appellant pro se filed a timely2 first PCRA petition. The PCRA

court appointed counsel on February 18, 2014, and counsel filed an

amended petition on August 10, 2014. On August 3, 2015, the PCRA court

entered notice of its intent to dismiss Appellant’s petition as untimely. On

March 21, 2016, the PCRA court dismissed Appellant’s petition as untimely.

       The PCRA court dismissed Appellant’s petition as untimely because

counsel filed the amended petition without leave and outside of the one-year

jurisdictional deadline set forth in § 9545(b)(1).   The PCRA court relied in

part on Commonwealth v. Renchenski, 52 A.3d 251 (Pa. 2012), wherein

the petitioner filed a timely first petition. Appointed counsel withdrew with

the petitioner’s consent, and the petitioner took no further action for ten

years. Id. at 252. The Commonwealth argued the delay would prejudice its

ability to retry the case. Id. Section 9543(b) permits dismissal of a petition

if the delay in the petition is prejudicial to the Commonwealth. 42 Pa.C.S.A.

§ 9543(b).      The Supreme Court agreed with the Commonwealth that

§ 9543(b) applied to amended petitions, and the Supreme Court upheld the

dismissal of the petition. Id. at 259-60.

       Renchenski is easily distinguishable from the instant matter, as

Appellant’s amended petition came only 15 months after Appellant’s pro se

petition and only six months after the PCRA court’s appointment of counsel.
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2
   Appellant filed his pro se petition well within the one-year deadline
specified in 42 Pa.C.S.A. § 9545(b)(1).



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Most importantly, for our purposes, the Renchenski Court noted, “a pro se

petitioner is entitled to file an amended first petition once counsel is

appointed.” Id. at 258 (emphasis added). Here, the PCRA court did not

appoint counsel until more than one year after the finality of Appellant’s

judgment of sentence.         In dismissing Appellant’s petition as untimely, the

PCRA court effectively denied Appellant his rule-based right to counsel under

Pa.R.Crim.P. 904. The PCRA court committed an egregious error in denying

Appellant’s petition as untimely.

       We note that the PCRA court’s opinion addresses the merits of

Appellant’s issues, despite the court’s conclusion on timeliness.            The

Commonwealth confines its analysis to the merits and does not defend the

PCRA court’s decision on timeliness. Appellant does not address the merits

in his brief.3 He had no occasion to do so given the dismissal of his petition

as untimely. In these circumstances, we will not consider the merits as an

alternate basis for affirmance.        The PCRA court, as noted above, deprived

Appellant of his rule-based right to counsel by refusing to consider counsel’s

amended petition. Were we to address the merits of the underlying issues

without any advocacy from Appellant’s counsel, we would be depriving



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3
  Appellant argues that the PCRA court should conduct a hearing, an issue
not properly before us given the dismissal for untimeliness. The need for a
hearing is an issue the parties and the PCRA court must address on remand.



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Appellant of his right to counsel in this appeal.   We therefore vacate the

PCRA court’s order and remand for further proceedings.

     Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2017




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