Com. v. Lawrence, B. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
BENJAMIN WILLIAM LAWRENCE
Appellant No. 1198 MDA 2020
Appeal from the PCRA Order entered August 17, 2020
In the Court of Common Pleas of Wyoming County
Criminal Division at No: CP-66-CR-0000444-2013
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED: AUGUST 19, 2021
Appellant, Benjamin William Lawrence, appeals from the August 17,
2020 order of the Court of Common Pleas of Wyoming County denying his first
petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa. C.S.A. §§ 9541-9546. Upon review, we vacate and remand.
The background of the instant matter is not at issue. Briefly, on
December 14, 2015,1 a jury convicted Appellant of nineteen counts of sexual
assault perpetrated against his two stepdaughters. The trial court sentenced
Appellant to an aggregate term of not less than 120 nor more than 240
months’ incarceration. On appeal, we affirmed the conviction but vacated his
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* Retired Senior Judge assigned to the Superior Court.
1 A December 14, 2014 trial resulted in a hung jury.
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sentence and remanded for the court to resentence him without considering
the mandatory minimums.2 See Commonwealth v. Lawrence, No. 281
MDA 2017, unpublished memorandum at 14 (Pa. Super. filed January 23,
2018).3
On October 5, 2018, the trial court resentenced Appellant to the same
term of incarceration but did not invoke the mandatory minimum sentences.
Appellant timely appealed, challenging the discretionary aspects of his
sentence. We affirmed the judgment of sentence on July 16, 2019. See
Commonwealth v. Lawrence, No. 1913 MDA 2018, unpublished
memorandum at 4-7 (Pa. Super. filed July 16, 2019). Appellant did not seek
further review from our Supreme Court.
On July 31, 2020, Appellant pro se filed his first PCRA petition, alleging
several errors, including ineffective assistance of counsel. Still unrepresented,
on August 17, 2020, the PCRA court denied Appellant’s first PCRA petition as
untimely.
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2 Appellant was sentenced to mandatory-minimum sentences pursuant to
42 Pa. C.S.A. § 9718. In Commonwealth v. Wolfe, 140 A.3d 651, 663 (Pa.
2016), our Supreme Court held that “[s]ection 9718 is irremediably
unconstitutional on its face, non-severable, and void.” Because any sentence
relying on these provisions was illegal, we needed to vacate his sentence. See
Commonwealth v. Lawrence, 1913 MDA 2018, supra, at *2, n.3.
3 Our Supreme Court denied Appellant’s petition for allowance of appeal on
August 29, 2018. See Commonwealth v. Lawrence, 128 MAL 2018 (Pa.
2018).
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On August 21, 2020, Appellant pro se filed a “Response to Rule to Show
Cause,” in which Appellant argued that his first PCRA petition was in fact
timely.4
On September 16, 2020, Appellant (through counsel) filed a notice of
appeal from the August 17, 2020 order.
On September 21, 2020, Jonathan W. Crisp, Esq., filed a praecipe for
entry of appearance. On the same day, the PCRA court ordered Appellant to
file a concise statement of matters complained of on appeal. Appellant
complied. In his statement, Appellant argued that the PCRA court erred in
finding his PCRA petition untimely. We agree.
“[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).
All PCRA petitions, “including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final” unless an exception
to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). “The PCRA’s time
restrictions are jurisdictional in nature. Thus, if a PCRA petition is untimely,
neither this Court nor the [PCRA] court has jurisdiction over the petition.
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4 There is no indication that the PCRA court entered a Rule to Show Cause
order.
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Without jurisdiction, we simply do not have the legal authority to address the
substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.
2006) (internal citations and quotation marks omitted) (overruled on other
grounds by Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020)). As
timeliness is separate and distinct from the merits of Appellant’s underlying
claims, we first determine whether this PCRA petition is timely filed.
Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008).
As noted by Appellant and the Commonwealth, see Appellant’s Brief at
11-12; Commonwealth’s Brief at 2-3, the judgment became final at the
expiration of the 30-day period to seek appeal before our Supreme Court.
See Pa.R.A.P. § 1113(a); 42 Pa.C.S.A. § 9545(b)(3). Since our memorandum
was filed on July 16, 2019, the judgment of sentence became final 30 days
later, on August 16, 2019. Appellant had one year from August 16, 2019, or
August 17, 2020,5 to file a timely PCRA petition. See Pa.C.S.A.
§ 95454(b)(1). Because the underlying petition was filed on July 31, 2020,
the petition was timely and the PCRA court erred in finding otherwise.
The PCRA court, however, erred on another matter, which we must
mention due to its seriousness, even though it is not dispositive of the instant
appeal.
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5 One year from August 16, 2019 was August 16, 2020. However, that day
fell on a Sunday. See 1 Pa.C.S.A. § 1908 (providing that when a statutory
filing deadline falls on a Saturday, Sunday, or holiday, the deadline will be
extended to the next business day).
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As noted, the record shows that the PCRA court dismissed Appellant’s
pro se first PCRA petition on the erroneous belief that it was untimely.
However, the PCRA court could not have done so without the appointment of
counsel to assist Appellant on his first PCRA petition.
In Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998), our
Supreme Court held that “denial of PCRA relief cannot stand unless the
petitioner was afforded the assistance of counsel.” Id. at 699 (citation
omitted). Similarly, in Commonwealth v. Robinson, 970 A.2d 455 (Pa.
Super. 2009) (en banc), we observed: “Pursuant to the rules of criminal
procedure and interpretive case law, a criminal defendant has a right to
representation of counsel for purposes of litigating a first PCRA petition
through the entire appellate process.” Id. at 457.
Additionally, the timeliness of the PCRA petition is irrelevant for
purposes of entitlement to appointment of counsel. In Commonwealth v.
Ferguson, 722 A.2d 177 (Pa. Super. 1998), we noted that there is an
absolute right to an appointed attorney for a first PCRA petition, even if a
PCRA petition is facially untimely. See also Commonwealth v. Evans, 866
A.2d 442, 444 (Pa. Super. 2005); Commonwealth v. Guthrie, 749 A.2d 502(Pa. Super. 2000). These decisions also stand for the proposition that the
improper deprivation of a first-time PCRA petitioner’s right to counsel must be
raised by this Court sua sponte. Commonwealth v. Stossel, 17 A.3d 1286(Pa. Super. 2011).
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Here, the record shows that Appellant obtained counsel on September
21, 2020, and is currently counseled. Thus, while we note the initial omission
of counsel we need not remand for the appointment of counsel as Appellant is
now counseled.
Because the PCRA court erroneously concluded that the underlying
petition was untimely, we are constrained to vacate the order and remand to
the PCRA court for further proceedings.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/19/2021
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