Com. v. Bonus, P.

J-S66023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PAUL JAY BONUS, :
:
Appellant : No. 188 WDA 2017
Appeal from the PCRA Order January 4, 2017
In the Court of Common Pleas of Somerset County Criminal Division at
No(s): CP-56-CR-0000227-2013
BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT*, J.
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 15, 2017
Appellant, Paul Jay Bonus, appeals from the January 4, 2017 Order
dismissing his first Petition pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We vacate and remand with
instructions.
On July 9, 2013, Appellant entered an open guilty plea to Rape by
Forcible Compulsion, 18 Pa.C.S. § 3121(a)(1).1 On October 2, 2013, the
trial court sentenced Appellant to a mandatory minimum sentence of 10 to
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1
In exchange for Appellant’s guilty plea, the Commonwealth withdrew 10
other charges: Rape by Threat of Forcible Compulsion, Sexual Assault,
Aggravated Indecent Assault without Consent, Aggravated Indecent Assault
by Forcible Compulsion, Aggravated Indecent Assault by Threat of Forcible
Compulsion, Incest of Minor, Corruption of Minors, Indecent Assault without
Consent, Indecent Assault by Forcible Compulsion, and Indecent Assault by
Threat of Forcible Compulsion.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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20 years’ incarceration pursuant to 42 Pa.C.S. § 9718(a)(1). At both
Appellant’s guilty plea hearing and sentencing hearing, Appellant’s counsel
informed the court that Appellant’s guilty plea to Rape by Forcible
Compulsion of a victim under the age of 16 carried a mandatory minimum
ten-year sentence pursuant to 42 Pa.C.S. § 9718(a)(1). See N.T. Guilty
Plea Hearing, 7/9/13, at 3; N.T. Sentencing Hearing, 10/2/13, at 4. The
trial court sentenced Appellant accordingly. See N.T. Sentencing Hearing, at
at 5; Sentencing Order, 10/2/13; Sentencing Guideline Form, 10/4/13.
The record does not reflect, however, that counsel or the court
informed Appellant that less than one month before Appellant’s guilty plea
hearing on June 17, 2013, the U.S. Supreme Court decided Alleyne v.
United States, 113 S.Ct. 2151 (U.S. 2013). The Court in Alleyne held that
any fact that increases a mandatory minimum sentence for a crime—other
than the fact of a prior conviction—is an element of that crime, which much
be submitted to a jury. Alleyne, thus, called into question the
constitutionality of mandatory minimum sentences.2
Following his sentencing, Appellant did not file a timely Post-Sentence
Motion or a direct appeal to this Court. Thus, Appellant’s Judgment of
Sentence became final on November 2, 2013. See 42 Pa.C.S. § 9545(b)(3)
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2
On June 20, 2016, the Pennsylvania Supreme Court in Commonwealth v.
Wolfe, 140 A.3d 651, 663 (Pa. 2016) specifically found Section 9718, the
statute pursuant to which the court sentenced Appellant, unconstitutional.
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(mandating that a Judgment of Sentence becomes final at the conclusion of
direct review or at the expiration of the time for seeking review);
Pa.R.Crim.P. 720(A)(3).
On January 28, 2014, the trial court docketed a handwritten letter,
post-marked November 22, 2013, from Appellant in which Appellant
requested reconsideration of his sentence. Appellant claimed that he “was
sentenced to a longer time than [he] deserves” because this was his first
offense. There is a notation in the docket that the court had sent to
Appellant’s trial counsel, Steven L. Miller of the Public Defender’s office, a
copy of the letter on November 26, 2013. Neither Appellant’s counsel nor
the court took any action in response to Appellant’s letter.
On September 14, 2015, Appellant filed a pro se Motion to Modify and
Correct Sentence, which the court treated as a first PCRA Petition. In his
Motion, Appellant challenged the legality of his mandatory minimum
sentence pursuant to Alleyne. That same day, Appellant also filed a pro se
“Motion for Withdrawal of Counsel Inter Alia Ineffective Assistance of
Counsel,” alleging trial counsel had abandoned him.
On December 7, 2015 the PCRA court entered an Order appointing
Appellant new counsel and scheduling a hearing on Appellant’s Petition.
Following the hearing, the PCRA court took the matter under
advisement “to determine whether or not [Appellant’s] Petition has been
timely filed.” PCRA Order, 1/26/16.
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On May 26, 2016, the PCRA court issued a Memorandum and Notice of
Intent to Dismiss Appellant’s PCRA Petition pursuant to Pa.R.Crim.P. 907
finding the Petition untimely and concluding that Appellant had failed to
plead and prove any exceptions to the PCRA’s time-bar. See 42 Pa.C.S. §
9545(b)(1)(i)-(iii).
On August 10, 2016, Appellant filed a Response to the court’s Rule 907
Notice in which he asserted that his Petition was not untimely because on
June 20, 2016, the Pennsylvania Supreme Court had affirmed this Court’s
ruling in Commonwealth v. Wolfe, 140 A.3d 651, 663 (Pa. 2016), finding
Section 9718 to be unconstitutional.
On August 15, 2016, Appellant filed an additional Motion for Post
Conviction Collateral Relief, in which he reiterated the arguments set forth in
his Response to the court’s Rule 907 Notice. Because the PCRA court had
not dismissed Appellant’s September 14, 2015 PCRA Petition, nor granted
leave for Appellant to file an Amended Petition, the court treated this filing
as a supplement to Appellant’s Response to the court’s Rule 907 Notice.
Appellant argued that this Petition was timely because he filed it within 60
days of the Supreme Court’s Opinion in Wolfe, supra.
On January 4, 2017, the PCRA court concluded that Appellant’s PCRA
Petition was untimely, and that Appellant had not proved the applicability of
any of the PCRA’s exceptions to the time-bar. The court noted that, because
Appellant’s Judgment of Sentence became final on November 2, 2013, in
order to be timely, Appellant was required to file a PCRA Petition on or
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before November 2, 2014. Appellant filed a PCRA Petition on September 9,
2015. Thus, the court concluded that Appellant’s Petition was patently
untimely. The court further noted that Appellant had not raised a question
of the retroactivity of Alleyne, because the Supreme Court decided Alleyne
before Appellant entered his guilty plea to Rape. PCRA Ct. Op, 1/4/17, at 5.
In a footnote, the PCRA court acknowledged for the first time that on
November 26, 2013, the court received Appellant’s letter requesting
reconsideration of his sentence. Id. at n 1. The trial court characterized
this letter as an untimely Post-Sentence Motion.
Appellant timely appealed from the January 4, 2017 Order dismissing
his PCRA Petition. Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
Before reaching the merits of Appellant’s issues on appeal, we note
that the trial court erroneously failed to treat Appellant’s November 26, 2013
letter challenging his sentence as a timely first PCRA Petition. See
Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001)
(holding that, regardless of what a defendant titles his Petition, “the PCRA is
the exclusive vehicle for obtaining post-conviction collateral relief.”). See
also Commonwealth v. Evans, 866 A.2d 442, 443-44 (Pa. Super. 2005)
(concluding that a Motion for Reconsideration or Modification of Sentence
should be treated as PCRA Petition); Commonwealth v. Beck, 848 A.2d
987, 989 (Pa. Super. 2004) (concluding that collateral challenge to legality
of sentence for failure to give credit for time served must be brought under
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the PCRA, despite being labeled as a Petition for habeas corpus);
Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002)
(concluding that a Motion to Vacate Sentence qualified as a PCRA Petition);
Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000)
(concluding that a Motion to Correct Illegal Sentence would be treated as
PCRA Petition).
Given the trial court’s failure to properly consider Appellant’s
November 26, 2013 letter as a first PCRA Petition, “we could vacate and
remand on this basis alone, as this conclusion by the court is in error.”
Kutnyak, 781 A.2d at 1262.
Further, defendants have a general rule-based right to the assistance
of counsel for their first PCRA Petition. Pa.R.Crim.P. 904(C). See
Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009) (en
banc) (stating, “a criminal defendant has a right to representation of counsel
for purposes of litigating a first PCRA petition through the entire appellate
process.”). “The indigent petitioner’s right to counsel must be honored
regardless of the merits of his underlying claims, even where those claims
were previously addressed on direct appeal, so long as the petition in
question is his first.” Commonwealth v. Powell, 787 A.2d 1017, 1019
(Pa. Super. 2001) (citation omitted).
Thus, “where an indigent, first-time PCRA petitioner was denied his
right to counsel—or failed to properly waive that right—this Court is required
to raise this error sua sponte and remand for the PCRA court to correct that
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mistake.” Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super.
2011).
Although the court forwarded Appellant’s trial counsel a copy of
Appellant’s pro se November 26, 2013 letter, it is not evident from the
record whether counsel still represented Appellant at that time. Thus, given
the nature of the relief Appellant sought and that Appellant’s sentence was
illegal at the time of his sentencing, it was incumbent upon the court to
ensure that Appellant had counsel, or had properly waived counsel, for what
was, in actuality, his first PCRA Petition. See Commonwealth v. Grazier,
713 A.2d 81 (Pa. 1998). The lower court erred in not appointing PCRA
counsel to Appellant following its receipt of his November 2013 letter.
Accordingly, we vacate the court’s January 4, 2017 Order dismissing
Appellant’s “second” PCRA Petition and remand for Appellant’s appointed
counsel to file an amended first PCRA Petition.
Order vacated. Case remanded. Jurisdiction relinquished.
President Judge Emeritus Bender joins this memorandum.
Judge Platt concurs in the results.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2017
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