J-S49045-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                           Appellee

                      v.

PERRY WALLACE

                           Appellant                     No. 593 EDA 2014


               Appeal from the Order Entered January 17, 2014
             In the Court of Common Pleas of Montgomery County
               Criminal Division at No: CP-46-CR-0008880-2004


BEFORE: OLSON, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                           FILED OCTOBER 14, 2014

        Appellant, Perry Wallace, appeals from the January 17, 2014 order

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

42 Pa.C.S.A. §§ 9541-9546. We vacate and remand.

        After a May 11, 2005 bench trial, the court found Appellant guilty of

rape,    statutory   sexual   assault,   indecent   assault,   terroristic   threats,

possession of an instrument of crime, and corruption of minors. On January

24, 2006, the trial court imposed a sentence of three to six years of

incarceration followed by ten years of probation.        Appellant was released

from prison on September 27, 2010 and arrested the next day for a positive

cocaine test. On September 9, 2011, the trial court imposed a sentence of

four to eight years of incarceration followed by ten years of probation. This

Court affirmed the judgment of sentence on May 9, 2012.
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       Appellant filed his timely first PCRA petition on August 17, 2012. After

a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998),

the PCRA court found that Appellant knowingly, intentionally, and voluntarily

waived his statutory right to court-appointed counsel.        The PCRA court

dismissed Appellant’s petition on September 20, 2013.        Appellant did not

appeal.

       On October 31, 2013, Appellant filed the instant pro se PCRA petition.

In response to the PCRA court’s December 16, 2013 notice of intent to

dismiss, Appellant asserted he never received notice of dismissal of his first

PCRA petition.      The PCRA court dismissed Appellant’s second petition on

January 14, 2014. This timely appeal followed.1

       In its Pa.R.A.P. 1925(a) opinion, the PCRA court concludes that it erred

and requests a remand: “Appellant claims, and the Court’s USPS Certified

Return Receipt shows, that he did not receive the Final Order of Dismissal of

the First PCRA Petition until October 28, 2013–well after the thirty-day

deadline under Rule 903(a) had passed.” PCRA Court Opinion, 4/16/14, at

4-5. The PCRA court reasoned that its administrative breakdown warrants


____________________________________________


1
   The docket date for Appellant’s notice of appeal is February 19, 2014,
which is one day after the expiration of the thirty-day appeal period. The
postmark on Appellant’s notice of appeal indicates that Appellant mailed that
document on February 12, 2014. Pursuant to the prisoner mailbox rule,
Appellant’s appeal is timely. Commonwealth v. Jones, 700 A.2d 423,
425-26 (Pa. 1997).



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relief in the form of a nunc pro tunc appeal from the September 30, 2013

dismissal of Appellant’s timely first PCRA petition.

      Before we remand, per the PCRA court’s request, we must discern

whether   the    PCRA   court   has   jurisdiction   over   the     instant   petition.

Appellant’s judgment of sentence became final thirty days after our May 9,

2012 affirmance of the trial court’s judgment of sentence. The instant PCRA

petition, filed October 31, 2013, is facially untimely under § 9545(b) of the

PCRA:

      b) Time for filing petition.

             (1) Any petition under this subchapter, including a second
      or subsequent petition, shall be filed within one year of the date
      the judgment becomes final, unless the petition alleges and the
      petitioner proves that:

                  (i) the failure to raise the claim previously was the
            result of interference by government officials with the
            presentation of the claim in violation of the Constitution or
            laws of this Commonwealth or the Constitution or laws of
            the United States;

                  (ii) the facts upon which the claim is predicated were
            unknown to the petitioner and could not have been
            ascertained by the exercise of due diligence; or

                  (iii) the right asserted is a constitutional right that
            was recognized by the Supreme Court of the United States
            or the Supreme Court of Pennsylvania after the time period
            provided in this section and has been held by that court to
            apply retroactively.

42   Pa.C.S.A.   § 9545(b).      Section   9545’s      timeliness    provisions    are

jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).




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         Section 9545(b)(1)(ii) applies where the petitioner’s request for relief

is predicated on previously unknown facts the petitioner could not have

ascertained through due diligence.         42 Pa.C.S.A. § 9545(b)(1)(ii).     In

Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), the petitioner’s

appeal from his first PCRA petition was dismissed after counsel failed to file a

brief.    Id. at 1266.    Construing, § 9545(b)(1)(ii), the Court wrote that it

“simply requires petitioner to allege and prove that there were ‘facts’ that

were ‘unknown’ to him and that he exercised ‘due diligence.’” Id. at 1270.

The petitioner in Bennett alleged he was unaware of counsel’s failure to file

a brief until he received a letter from the Superior Court informing him of

the dismissal of his appeal.      Id. at 1272.    The PCRA court granted the

petitioner’s request for a nunc pro tunc appeal from the dismissal of the first

PCRA petition, but this Court reversed, concluding the PCRA court lacked

jurisdiction to order relief.    Id. at 1267.    The Supreme Court reversed,

reasoning that “subsection (b)(1)(ii) is a limited extension of the one-year

time requirement under circumstances when a petitioner has not had the

review to which he was entitled due to a circumstance that was beyond his

control.” Id. at 1273.

         Instantly, counsel’s stewardship is not at issue, as counsel withdrew

pursuant to the Turner/Finley procedure.         Nonetheless, the substance of

Appellant’s assertion here is precisely the same as it was in Bennett.

Appellant asserts he did not receive the review to which he was entitled


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through no fault of his own. As noted above, the PCRA court concedes that

point, as it failed to provide Appellant, whose counsel had withdrawn, of

timely notice of the dismissal of his PCRA petition. Pursuant to Bennett, the

instant facts are sufficient to trigger § 9545(b)(1)(ii).2

         We next consider § 9545(b)(2) of the PCRA, which requires a

petitioner asserting a timeliness exception to raise the claim within sixty

days of the first date on which the claim could have been raised. Appellant

received the PCRA court’s tardy notice of its dismissal of Appellant’s first

petition on October 28, 2013. Appellant filed the instant petition three days

later,    on   October    31,   2013.          Thus,   Appellant   has   complied   with

§ 9545(b)(2).

         Based on the foregoing, we vacate the PCRA court’s order and remand

for further proceedings.

         Order vacated. Case remanded. Jurisdiction relinquished.




____________________________________________


2
  In analogous cases on direct appeal, our courts will accept jurisdiction of
an otherwise untimely appeal where the untimeliness results from a
breakdown in the court’s operation. See Commonwealth v. Coolbaugh,
770 A.2d 788, 791 (Pa. Super. 2001).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2014




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