Com. v. Jones, S.

J-S71026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
SHAMEL LEROY JONES
Appellant No. 1266 EDA 2017
Appeal from the PCRA Order Entered March 24, 2017
In the Court of Common Pleas of Northampton County
Criminal Division at No: CP-48-CR-0001920-2000; CP-48-CR-0001057-
2003
BEFORE: PANELLA, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED JANUARY 11, 2018
Appellant Shamel Leroy Jones, pro se, appeals from the March 24, 2017,
order entered in the Court of Common Pleas of Northampton County (“PCRA
court”), which dismissed as untimely his request for collateral relief under the
Post Conviction Relief Act (the “PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon
review, we vacate and remand.
Briefly, on September 8, 2003, Appellant pleaded guilty at dockets
1920-2000 and 1057-2003. Specifically, at docket 1920-2000, he entered
into a negotiated guilty plea to robbery carrying a sentence of 36 to 72
months’ imprisonment. At docket 1057-2003, Appellant entered into a
negotiated guilty plea to possession of contraband carrying a sentence of 18
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* Retired Senior Judge assigned to the Superior Court.
J-S71026-17
to 36 months in prison. The trial court ordered the sentences to run
concurrently to each other and consecutively to any sentence that he was
serving. Appellant did not file a direct appeal.
On February 27, 2017, Appellant filed the instant, his first, PCRA
petition, challenging the voluntariness of his guilty plea and asserting
ineffectiveness assistance of counsel claims. In his petition, Appellant
asserted that he did “not have a lawyer” and was “without financial resources
or otherwise unable to obtain a lawyer.” Appellant thus requested that the
PCRA court “appoint a lawyer to represent” him. The PCRA court did not
appoint counsel. Following the PCRA court’s issuance of a Pa.R.Crim.P. 907
notice of its intent to dismiss the petition without a hearing, the PCRA court
denied Appellant PCRA relief on March 24, 2017. Appellant timely appealed
to this Court.
At the outset, we observe that Pennsylvania Rule of Criminal Procedure
904 requires the appointment of counsel for an indigent petitioner on his first
PCRA petition. See Pa.R.Crim.P. 904(c). An indigent defendant must be
represented “throughout the post-conviction proceedings, including any
appeal from disposition of the petition for post-conviction relief. Once counsel
has entered an appearance on a defendant’s behalf, counsel is obligated to
continue representation until the case is concluded or counsel is granted leave
by the court to withdraw his appearance.” Commonwealth v. Brown, 836
A.2d 997, 998-99 (Pa. Super. 2003) (citations and quotation marks omitted).
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Moreover, and most important, “[a]n indigent petitioner is entitled to
appointment of counsel on his first PCRA petition, even where the petition
appears untimely on its face.” Commonwealth v. Perez, 799 A.2d 848,
851 (Pa. Super. 2002) (emphasis added). “In such cases, counsel is appointed
principally to determine whether the petition is indeed untimely, and if so,
whether any exception to the timeliness requirements . . . applies.” Id. at
852.
Additionally, Rule 904 requires appointed counsel to provide meaningful
representation. As we explained in Perez “when appointed counsel fails to
amend an inarticulately drafted pro se [post-conviction] petition, or fails
otherwise to participate meaningfully, this [C]ourt will conclude that the
proceedings were, for all practical purposes, uncounseled and in violation of
the representation requirement. Id. at 852 (emphasis in original). “[T]o
provide meaningful representation, appointed counsel must at least address
the timeliness of a PCRA petition and determine whether the petition fits any
exception to the PCRA’s timeliness provision, where the subject petition is
untimely on its face.” Id. at 849. Counsel’s failure to discuss the timeliness
issue renders the “representation virtually meaningless” and effectively denies
an appellant the right to assistance of counsel. Id. at 853. Where the record
fails to demonstrate “meaningful participation by counsel appointed to
represent an indigent petitioner filing his first petition, [this Court] will remand
for appointment of new counsel.” Id. at 852, (citation omitted). Indeed,
“where an indigent, first-time PCRA petitioner was denied his right to counsel
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. . . this Court is required to raise this error sua sponte and remand for the
PCRA court to correct that mistake.” Commonwealth v. Stossel, 17 A.3d
1286, 1290 (Pa. Super. 2011).
Instantly, our review of the record reveals that the PCRA court failed to
appoint counsel to represent Appellant on the instant—his first—PCRA petition,
despite Appellant’s request for counsel. As stated, Appellant specifically
asserted that he was without resources to hire an attorney. In fact, Appellant
is proceeding in forma pauperis in this appeal. Accordingly, the PCRA court
erred in failing to appoint counsel to represent Appellant on his first PCRA
petition. We, therefore, remand this case to the PCRA court to appoint counsel
to represent Appellant and to hold further proceedings. See Pa.R.Crim.P.
904(c).
We recognize that Appellant pro se filed his PCRA petition over a decade
after his time for filing it had expired. As stated earlier, the record reflects
Appellant’s judgment of sentence became final on October 8, 2003. See 42
Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Because Appellant had one year
from October 8, 2003, to file his PCRA petition, the current filing is facially
untimely given it was filed on February 27, 2017. Yet, despite his PCRA
petition being facially untimely, Appellant still was entitled to counsel. See
Perez, supra.Order vacated. Case remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/18
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