Com. v. Morris, V. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VERNELL MORRIS :
:
Appellant : No. 3731 EDA 2016
Appeal from the PCRA Order November 3, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1113151-1992
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
JUDGMENT ORDER BY LAZARUS, J.: FILED FEBRUARY 01, 2018
Vernell Morris appeals from the order, entered in the Court of Common
Pleas of Philadelphia County, dismissing his petition for collateral relief filed
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. We
vacate and remand.
Following a waiver trial before the Honorable Paul Ribner, Morris was
convicted of first-degree murder, five counts each of aggravated assault and
recklessly endangering another person, and possession of an instrument of
crime. On September 8, 1994, Judge Ribner sentenced Morris to life
imprisonment. This Court affirmed his judgment of sentence.
Commonwealth v Morris, 678 A.2d 831 (Pa. Super. 1996) (Table), and on
January 7, 1997, the Pennsylvania Supreme Court denied his petition for
allowance of appeal. Commonwealth v. Morris, 689 A.2d 232 (Pa. 1997)
(Table). Morris did not seek certiorari in the United States Supreme Court
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and, therefore, his judgment of sentence became final on April 7, 1997, when
the time to file a petition for writ of certiorari with the United States Supreme
Court expired. See 42 Pa.C.S. § 9545(b)(3) (“a judgment becomes final at
the conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.”). See also U.S.Sup.Ct.R. 13, 28
U.S.C.A.
On September 22, 2008, Morris filed a pro se writ of habeas corpus,
which the Honorable Sheila Woods-Skipper dismissed without prejudice to
allow him to file a PCRA petition. On July 20, 2012, Morris filed his first pro
se PCRA petition and the court served him with notice of its intention to
dismiss pursuant to Pa.R.Crim.P. 907(1). Morris did not respond to the Rule
907 notice and the PCRA court dismissed Morris’ petition as untimely on
November 3, 2016. This appeal followed. Thereafter, the PCRA court filed its
opinion, requesting this Court remand for appointment of counsel pursuant to
Pa.R.Crim.P. 904(C) (“[W]hen an unrepresented defendant satisfies the judge
that the defendant is unable to afford or otherwise procure counsel, the judge
shall appoint counsel to represent the defendant on the defendant’s first
petition for post-conviction collateral relief.”).
Here, neither the 2008 petition nor the 2012 petition were counseled.
Morris has not been afforded the assistance of counsel in a prior post-
conviction proceeding. We agree with the PCRA court that remand for
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appointment of counsel is necessary here. See Pa.R.Crim.P. 904(C); see also
Commonwealth v. Guthrie, 749 A.2d 502 (Pa. Super. 2000).
This necessary conclusion . . . implicates a long line of
Pennsylvania precedent requiring unequivocally that prisoners
seeking post-conviction relief by whatever name be afforded the
assistance of counsel. See Commonwealth v. Smith, 572 Pa.
572, 818 A.2d 494, 498 (2003) (“[T]he rules of criminal procedure
require the appointment of counsel in PCRA proceedings.”);
Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 699
(1999) (“The denial of PCRA relief cannot stand unless the
petitioner was afforded the assistance of counsel.”);
[Commonwealth v.] Kutnyak, 781 A.2d [1259,] 1262 [(Pa.
Super. 2001)] (holding that appellant is entitled to representation
of counsel on first PCRA petition “despite any apparent
untimeliness of the petition or the apparent non-cognizability of
the claims presented”); Guthrie, 749 A.2d at 504 (remanding for
appointment of counsel); Commonwealth v. Quail, 729 A.2d
571, 573 (Pa. Super. 1999) (same); Commonwealth v.
Ferguson, 722 A.2d 177, 180 (Pa. Super. 1998) (same). These
holdings follow from the mandatory language contained in
Pa.R.Crim.P. 904, formerly Pa.R.Crim.P. 1504.
Commonwealth v. Evans, 866 A.2d 442, 444 (Pa. Super. 2005).
We remand for the appointment of counsel and the preparation of an
amended petition as well as further proceedings as directed by the PCRA court.
Order vacated. Case remanded for proceedings consistent with this
decision. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/1/18
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