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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
EDGAR WINSETT,                              :
                                            :
                          Appellant         :     No. 3572 EDA 2014

                    Appeal from the Order November 14, 2014
                 In the Court of Common Pleas of Chester County
                Criminal Division No(s).: CP-15-CR-0000625-2008

BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED SEPTEMBER 22, 2015

        Appellant, Edgar Winsett, appeals from the order entered in the

Chester County Court of Common Pleas denying his pro se motion for

reconsideration of sentence as untimely.        Appellant’s counsel has filed a

petition to withdraw pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), with

this Court. We vacate the order below, deny counsel’s petition to withdraw,

and remand for further proceedings.

        On September 9, 2008, Appellant entered a negotiated guilty plea to

criminal conspiracy to commit theft by deception and theft by unlawful

taking and was sentenced to a negotiated term of six to twenty-three


*
    Former Justice specially assigned to the Superior Court.
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months’ incarceration followed by five years’ probation. On December 10,

2008, Appellant was paroled.

        According to the parties’ briefs and the docket, the following

transpired.1    The Commonwealth filed a Gagnon2 petition on February 8,

2013, which alleged Appellant violated the terms of his probation.           On

September 6, 2013, Lauren Holt, Esq., of the Chester County Public

Defender’s Office, entered her appearance. A Gagnon II hearing was held

on October 1, 2013, and the court revoked Appellant’s probation and

resentenced him to five to twenty-three months’ imprisonment followed by

three years’ probation. On October 8, 2013, the court received Appellant’s

pro se motion to modify sentence. The court did not forward Appellant’s pro

se motion to his counsel and instead denied it on October 25, 2013.         The

order notified Appellant he had thirty days to appeal, and the court served

the order on Appellant.

        On October 20, 2014, Appellant mailed a pro se letter to the trial court

asking for “modification of the parole violation sanctions [the court] imposed

on . . . Oct. 01, 2013.” Ltr. from Appellant to court (Oct. 20, 2014). The

1
  The certified record is missing a large number of documents. “Our law is
unequivocal that the responsibility rests upon the appellant to ensure that
the record certified on appeal is complete in the sense that it contains all of
the materials necessary for the reviewing court to perform its duty.”
Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc)
(citation omitted).
2
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).


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court did not forward the letter to his counsel. The trial court construed this

letter as a pro se motion for reconsideration of sentence and denied it on

November 14, 2014.      The order advised Appellant he had thirty days to

appeal.

        On December 8, 2014, Appellant, pro se, sent a letter to the court

complaining about, inter alia, the lack of correspondence from his counsel.

On December 10, 2014, the court responded via letter that Appellant was

appointed counsel on September 6, 2013, all future correspondence with the

court should be from Appellant’s counsel, and the court copied Attorney Holt

as a courtesy. On Monday, December 15, 2014, Attorney Holt timely filed a

notice of appeal for Appellant. On December 16, 2014, Appellant’s counsel

filed a Pa.R.A.P. 1925(c)(4) statement of intent to file an Anders brief,

which she did.

        As a prefatory matter, given this procedural morass, we ascertain

whether the court should have construed Appellant’s pro se October 20,

2014 letter as a Post Conviction Relief Act3 (“PCRA”) petition and thus

whether Appellant was entitled to PCRA counsel.4      In Commonwealth v.

Taylor, 65 A.3d 462 (Pa. Super. 2013), the defendant filed a petition for



3
    42 Pa.C.S. §§ 9541-9546.
4
  As noted above, we acknowledge that Appellant’s prior counsel did not
withdraw from representing him and the trial court’s failure to comply with
Pa.R.Crim.P. 576(A)(4).


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writ of habeas corpus, which the trial court denied after construing it as an

untimely post-sentence motion.       Id. at 464.      On direct appeal, the

Commonwealth claimed the defendant’s petition should have been construed

as an untimely PCRA petition. Id. at 465. This Court agreed:

            In Commonwealth v. Fowler, 930 A.2d 586 (Pa.
         Super. 2007), the learned Judge, now Justice, McCaffery,
         collected cases and reiterated that all motions filed after a
         judgment of sentence is final are to be construed as PCRA
         petitions. . . . More recently, in Commonwealth v.
         Jackson, 30 A.3d 516 (Pa. Super. 2011), this Court held
         that a defendant’s motion to correct his illegal sentence
         was properly addressed as a PCRA petition, stating
         broadly, “any petition filed after the judgment of sentence
         becomes final will be treated as a PCRA petition.”

Id. at 466 (citations omitted).    “[A]n untimely post-sentence motion filed

after finality of judgment is to be treated as a PCRA petition.” Id. at 467.

      Instantly, Appellant was sentenced on October 1, 2013, and he filed a

pro se motion to modify sentence on October 8th, which the court denied on

October 25th. His judgment of sentence became final thirty days thereafter.

Almost one year later, on October 20, 2014, Appellant filed a pro se motion

for reconsideration of his sentence that the court should have construed as a

PCRA petition.   See id. at 466.   In conjunction with the failure to comply

with Pa.R.Crim.P. 576(A)(4), and trial counsel’s failure to withdraw, we

deem it appropriate to vacate the order below, remand to have PCRA

counsel formally appointed, and have the PCRA court construe Appellant’s

October 20, 2014 motion as a PCRA petition. See id.



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      Order vacated.         Petition to withdraw denied.   Case remanded.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/22/2015




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