Com. v. Holley, J. ( 2020 )

J-S03034-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESSIE JAMES HOLLEY :
:
Appellant : No. 1104 WDA 2019
Appeal from the PCRA Order Entered July 8, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0014168-2014
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
JUDGMENT ORDER BY PELLEGRINI, J.: FILED FEBRUARY 7, 2020
Jessie James Holley (Holley) appeals pro se from the order entered in
the Court of Common Pleas of Allegheny County (PCRA court) dismissing his
first petition for relief filed pursuant to the Post-Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. Because the PCRA court failed to issue notice of its
intent to dismiss under Pa.R.Crim.P. 907(a), we vacate and remand.
On August 8, 2017, Holley was sentenced to serve an aggregate 35 to
70 years’ imprisonment after being convicted by a jury of numerous sexual
offenses. After the denial of post-sentence motions, Holley appealed. This
Court affirmed the judgment of sentence on October 15, 2018. See
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Holley, 1353 WDA 2017 (Pa. Super. 2018) (unpublished
memorandum).
On January 9, 2019, Holley filed a pro se PCRA petition and was
appointed counsel. However, just two months later, Holley requested he be
permitted to represent himself. Consequently, on April 29, 2019, the PCRA
court held a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81
(Pa. 1998), and granted Holley’s request to proceed pro se. The PCRA court
further ordered that if Holley wished to file an amended PCRA petition, he
needed to file it within 60 days. Holley never filed an amended petition and
on July 8, 2019, the PCRA court entered an order dismissing Holley’s petition
without hearing.
After Holley filed a notice of appeal, the PCRA court issued a statement
in lieu of opinion requesting that this matter be remanded so that it can issue
a notice of intent to dismiss as required by Pa.R.Crim.P. 907, which it had
failed to do before dismissing Holley’s petition. In its brief, the Commonwealth
agrees with the PCRA court’s position and requests that this Court remand this
matter for the issuance of a Rule 907 notice which Holley may respond to.
We agree with the PCRA court that remand is appropriate. Pennsylvania
Rule of Criminal Procedure 907 provides, in pertinent part, as follows:
the judge shall promptly review the petition, any answer by the
attorney for the Commonwealth, and other matters of record
relating to the defendant’s claim(s). If the judge is satisfied from
this review that there are no genuine issues concerning any
material fact and that the defendant is not entitled to post-
conviction collateral relief, and no purpose would be served by any
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further proceedings, the judge shall give notice to the parties of
the intention to dismiss the petition and shall state in the notice
the reasons for the dismissal. The defendant may respond to the
proposed dismissal within 20 days of the date of the notice. The
judge thereafter shall order the petition dismissed, grant leave to
file an amended petition, or direct that the proceedings continue.
Pa.R.Crim.P. 907(1). A PCRA court’s compliance with this rule is mandatory.
See Commonwealth v. Feighery, 661 A.2d 437, 439 (Pa. Super. 1995) (“It
is, of course, clear that the notice requirement of the intention to dismiss, is
mandatory (‘the judge shall (give notice and) shall state (the reasons)’ ”)
(emphasis in original).
Even though Holley did not file an amended PCRA petition, this did not
alleviate the PCRA court of issuing a Rule 907 notice before dismissing his
petition. On remand, the PCRA court shall comply with Rule 907 and issue a
notice stating the reasons for its intent to dismiss Holley’s PCRA petition. In
accordance with the rule, Holley may respond to the notice within 20 days of
its issuance.
Order vacated; case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/2020
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