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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                    1    IN THE SUPERIOR COURT
                                                         OF PENNSYLVANIA
                           Appellee

                      v.

AQUIL JOHNSON

                           Appellant                    No. 3497 EDA 2017

           Appeal from the PCRA Order Entered September 28, 2017
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: MC-51-MD0000127-2013

BEFORE: STABILE, MURRAY, JJ., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.:                                FILED JULY 17, 2019

        Appellant, Aquil Johnson, appeals pro se from the September 28, 2017

order dismissing his petition pursuant to the Post Conviction Relief Act
("PCRA"), 42 Pa.C.S.A. §§ 9541-46. We reverse and remand.

        During a January 25, 2013 voir dire proceeding at Appellant's trial for

attempted murder, aggravated assault, and conspiracy, Judge Chris R. Wogan

of the Philadelphia County Court of Common Pleas held Appellant in contempt

of court for disruptive behavior. The trial court imposed three to six months

of incarceration for contempt.         The official docket reflects a motion for
contempt, a finding of contempt, and a sentence imposed all on January 8,

2013.    Subsequently, at the March 15, 2013 sentencing in the attempted

murder case, which proceeded under a separate criminal docket number, the

trial court vacated the contempt convictions and indicated that it would not
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impose any sentence for contempt. The certified docket for the instant matter

does not reflect that the trial court vacated the sentence.

      Appellant did not file a direct appeal of the contempt sentence.          A

postage order indicates that Appellant mailed a timely first PCRA petition on

January 2, 2014.1 According to the PCRA court's opinion, authored by Judge

Sean F. Kennedy of the Philadelphia Court of Common Pleas, Appellant's

original petition was mishandled by the court system. PCRA Court Opinion,

8/15/18, at 2. Appellant therefore refiled the petition on June 30, 2014, after

the PCRA's one-year deadline expired.        The certified docket reflects that
Appellant filed his PCRA petition on that date. Given the PCRA court's finding

that Appellant's original petition was mishandled, we conclude Appellant
timely filed his petition on January 2, 2014 pursuant to the prisoner mailbox

rule. See Commonwealth v. .7ohnson, 192 A.3d 1149, 1151 n.4 (Pa. Super.

2018) (noting that a document from a pro se prisoner is deemed filed on the

day he gives it to prison authorities for mailing), appeal denied, 200 A.3d

440 (Pa. 2019).

      Appellant's pro se brief to this Court, while difficult to follow, addresses

the timeliness of his petition, the propriety of the trial court's finding of
contempt, the legality of the contempt sentence, and Judge Wogan's alleged




1 A petitioner must file a PCRA petition within one year of the date on which
the judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1).

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bias against Appellant. Judge Kennedy explains in his opinion that he denied

relief because Judge Wogan eventually vacated the contempt sentence. PCRA

Court Opinion, at 5. Thus, Judge Kennedy believed Appellant already received

the relief he is seeking. The Commonwealth acknowledges that Judge Wogan

intended to vacate the contempt sentence at issue, but notes that the certified

docket does not reflect an order to that effect. The Commonwealth does not

oppose a remand for that purpose. Given the agreement among the parties

and the PCRA court that the instant contempt sentence should be vacated, we

will remand for entry and docketing of an appropriate order.2        Given our

disposition, we need not analyze the merits of Appellant's arguments.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Jseph D. Seletyn,
Prothonotary

Date: 7/17/19




2  It is not clear that Judge Wogan had jurisdiction to vacate the January 8,
2013 contempt sentence at the March 15, 2013 criminal sentencing, as more
than thirty days elapsed in the interim. See 42 Pa.C.S.A. § 5505 ("Except as
otherwise provided or prescribed by law, a court upon notice to the parties
may modify or rescind any order within 30 days after its entry,
notwithstanding the prior termination of any term of court, if no appeal from
such order has been taken or allowed."). Appellant's timely PCRA petition,
however, gives this Court jurisdiction to remand for entry of an order in accord
with Judge Wogan's stated intent.
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