Com. v. Gelts, D. ( 2018 )

J-S73031-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD E GELTS, JR. :
:
Appellant : No. 693 WDA 2018
Appeal from the Order Entered April 26, 2018
In the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0000290-2002
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
JUDGMENT ORDER BY OLSON, J.: FILED NOVEMBER 30, 2018
Appellant, Donald E Gelts, Jr., appeals pro se from the order entered on
April 26, 2018. Although we quash this appeal, we instruct the PCRA court to
comply with this judgment order.
As our resolution of this appeal is based on the procedural posture of
this case, we decline to set forth the factual background. On July 11, 2003,
the trial court sentenced Appellant to an aggregate term of 14 to 30 years’
imprisonment after he pled guilty to statutory sexual assault1 and involuntary
deviate sexual intercourse.2 After Appellant’s direct appeal rights were
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1 18 Pa.C.S.A. § 3122.1.
2 18 Pa.C.S.A. § 3123(a)(7).
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reinstated nunc pro tunc, this Court affirmed. Commonwealth v. Gelts, 22
A.3d 1071 (Pa. Super. 2010) (unpublished memorandum) (citation omitted).
On December 29, 2010, Appellant filed his first3 pro se petition pursuant to
the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. The
PCRA court denied Appellant’s request for the appointment of counsel. 4 No
action was taken on that petition for the next seven and one-half years.
On April 6, 2018, Appellant filed a motion to amend that PCRA petition.
On April 26, 2018, the PCRA court treated the filing as a second PCRA petition
and purported to dismiss the petition. This appeal followed.
Preliminarily, we must determine if we have jurisdiction over this appeal.
Generally, we only have jurisdiction over appeals from final orders. Shearer
v. Hafer, 177 A.3d 850, 855 (Pa. 2018) (citation omitted). An order denying
a motion to amend a PCRA petition is not a final order. See Pa.R.A.P.
341(b)(1). Hence, if Appellant’s filing were a motion to amend his PCRA
petition, we lack jurisdiction over this appeal. If, however, as the PCRA court
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3 See Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 2013).
4In denying Appellant’s request for appointment of counsel to handle his post-
conviction challenge, the PCRA court incorrectly stated that Appellant was
being represented by his direct appellate counsel at the time. Appellate
counsel, however, only had an obligation “to continue representation until the
case [wa]s concluded[.]” Commonwealth v. White, 871 A.2d 1291, 1294
(Pa. Super. 2005) (citation omitted). The case was concluded on December
15, 2010, when the time for filing a petition for allowance of appeal expired.
There is nothing in the certified record indicating that appellate counsel was
appointed to represent Appellant in any post-conviction challenge. Hence,
Appellant was not represented when he filed his PCRA petition.
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found, Appellant’s filing was a second PCRA petition, the April 26, 2018 order
was a final order and we have jurisdiction over this appeal.
We must look to the contents of a filing to determine its character and
not merely the title a party ascribes thereto. Cf. Commonwealth v.
Descardes, 136 A.3d 493, 503 (Pa. 2016) (court was required to consider
filing a PCRA petition although titled a petition for writ of coram nobis). As
noted above, Appellant’s December 29, 2010 PCRA petition was still pending
when he filed the motion to amend. Appellant sought to add a claim to that
PCRA petition in his filing. Hence, the PCRA court improperly treated the filing
as Appellant’s second PCRA petition. The filing should have been treated as a
motion to amend Appellant’s first PCRA petition. Hence, this appeal from the
order denying the motion to amend is interlocutory and we lack jurisdiction
over this appeal. Accordingly, we quash this appeal.
Although we quash this appeal as interlocutory, we note that “it is
undisputed that first time PCRA petitioners have a rule-based right to
counsel.” Commonwealth v. Figueroa, 29 A.3d 1177, 1180 n.6 (Pa. Super.
2011). The PCRA court has denied Appellant that right for the past eight
years. The PCRA court shall appoint counsel forthwith to litigate the pending
PCRA petition.5
Appeal quashed.
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5 Counsel shall expeditiously file an amended petition or a no-merit letter.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2018
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