Com. v. Hodges, W.

J-S83011-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WALTER T. HODGES, II :
:
Appellant : No. 417 WDA 2018
Appeal from the PCRA Order February 15, 2018
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0004883-2001
CP-65-CR-0004884-2001
CP-65-CR-0004885-2001
BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.
JUDGMENT ORDER BY PANELLA, J.: FILED JUNE 28, 2019
Walter T. Hodges, II, appeals pro se from the order dismissing his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541–9546. Hodges claims, inter alia, that the hearing on the revocation
of his probation and resentencing was a sham proceeding conducted to
conceal an illegal detainer, and his sentence was unlawful. PCRA counsel
mistakenly concluded that Appellant’s petition was untimely filed, and did not
review the substantive claims. We agree with the Commonwealth that under
controlling authority, Appellant would be considered uncounseled, and the
matter should be remanded for the appointment of new PCRA counsel. We
therefore vacate and remand.
J-S83011-18
Appellant’s counsel erroneously concluded that his PCRA petition was
untimely. The PCRA court dismissed the petition and granted counsel
permission to withdraw. See Order, 2/15/18. It reasoned that even if the
petition was timely as to certain claims, the substantive issues it raised were
frivolous.
The Commonwealth maintains that where counsel is granted permission
to withdraw solely on his mistaken conclusion that the PCRA petition was
untimely filed without reviewing the substantive claims, under our case law
Appellant is considered uncounseled, and the matter should be remanded for
the appointment of new PCRA counsel. See Commonwealth’s Brief, at 3.
We agree. See Commonwealth v. Karanicolas, 836 A.2d 940, 947-
48 (Pa. Super. 2003) (holding appellant effectively deprived of right to counsel
where counsel’s petition for leave to withdraw was based solely on mistaken
conclusion that PCRA petition was untimely filed, counsel failed to explain why
remainder of appellant’s issues lacked merit, and counsel’s cursory analysis
was tainted by misconception that appellant’s petition was untimely).
Accordingly, we remand for the appointment of new counsel. After review,
counsel may seek leave to file an amended petition, file an advocate’s brief or
file a proper Turner/Finley no merit letter with the PCRA court.1
____________________________________________
1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
-2-
J-S83011-18
Order vacated. Case remanded for further proceedings consistent with
this order. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2019
-3-