Com. v. Blackstone, R. ( 2017 )

J-S22041-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RASHEEK R. BLACKSTONE,
Appellant No. 995 MDA 2016
Appeal from the PCRA Order May 2, 2016
in the Court of Common Pleas of Dauphin County
Criminal Division at Nos.: CP-22-CR-0001725-2006
CP-22-CR-0001726-2006
BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*
JUDGMENT ORDER BY PLATT, J.: FILED MAY 02, 2017
Appellant, Rasheek R. Blackstone, appeals, pro se, from the order of
May 2, 2016, denying his motion for disposition of pending petition for
PCRA1 relief or immediate discharge. For the reasons discussed below, we
vacate the order and remand with instructions.
On October 13, 2006, following trial, a jury convicted Appellant of two
counts of recklessly endangering another person, one count each of
aggravated assault, firearms not to be carried without a license, and
unlawful to fire any weapon within city limits. On December 21, 2006, the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
The Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
J-S22041-17
trial court sentenced Appellant to an aggregate term of incarceration of not
less than eight nor more than twenty years. Appellant did not file a direct
appeal.
On December 7, 2015, Appellant filed a motion claiming that, in 2008,
he had filed a petition under the PCRA, which had never been decided by the
court. (See Motion for Disposition of Pending Petition for PCRA Relief,
12/07/15, at 1). Appellant sought either a decision on the petition or
immediate discharge. (See id. at 3). The court denied the motion on May
2, 2016. The instant timely appeal followed. The court did not order
Appellant to file a concise statement of errors complained of on appeal. See
Pa.R.A.P. 1925(b). On July 26, 2016, the court issued a statement in lieu of
a Rule 1925(a) opinion stating that there is no indication in either docket
that a PCRA petition was ever filed for Appellant in 2008. Furthermore, the
PCRA court reviewed Appellant’s physical files and found no petition in any of
them. (See PCRA Court Opinion, 7/26/16, at 2); see also Pa.R.A.P.
1925(a).
We review this matter to determine whether the record supports the
PCRA court’s findings and whether its order is otherwise free of legal error.
See Commonwealth v. Faulk, 21 A.3d 1196, 1199 (Pa. Super. 2011).
Here, the record demonstrates that Appellant attached a copy of a
purported PCRA petition to his motion. The petition appears to be date-
stamped as being received by the Clerk of Courts of Dauphin County on
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January 18, 2008. (See PCRA Petition, 1/18/08, at unnumbered page 1).
Thus, it appears that Appellant may have attempted to file a PCRA petition in
2008 and that the Clerk of Courts date-stamped and may have received the
petition.
Accordingly, we vacate the order of May 2, 2016, and remand to the
PCRA court for an evidentiary hearing on whether there was a breakdown in
the operation of the court in 2008 that may have resulted in a failure to file
and docket Appellant’s PCRA petition. We direct the PCRA court to appoint
counsel to represent Appellant’s interests in this hearing. See Pa.R.A.P.
904. We further direct the court to determine whether Appellant exercised
due diligence in waiting almost eight years to ascertain the status of his
petition. Specifically, we direct the court to determine if Appellant properly
complied with 42 Pa.C.S.A. § 9545(b)(2) (“60 day rule”). See also 42
Pa.C.S.A. § 9545(b) (petition may be dismissed if delay prejudiced the
Commonwealth); Cf., Commonwealth v. Markowitz, 32 A.3d 706 (Pa.
Super. 2011), appeal denied, 40 A.3d 1235 (Pa. 2012) (prejudicial delay in
filing petition precluded relief); Commonwealth v. Weatherill, 24 A.3d
435 (Pa. Super. 2011), appeal denied, 63 A.3d 777 (Pa. 2013) (prejudicial
delay prohibited relief where appellant did not filed amended petition for ten
years); Commonwealth v. Renchenski, 988 A.3d 699 (Pa. Super. 2010),
affirmed, 52 A.3d 251 (Pa. 2012) (same). If the court determines that such
a breakdown occurred, and that Appellant exercised due diligence in
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ascertaining the status of his petition, then we direct it to permit Appellant’s
PCRA petition to be filed nunc pro tunc and to appoint counsel to continue to
represent him in any further PCRA proceedings on this petition.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/2/2017
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