Com. v. King, T.

J-S41025-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS STUART KING :
:
Appellant : No. 1703 MDA 2019
Appeal from the PCRA Order Entered October 3, 2019
In the Court of Common Pleas of Fulton County Criminal Division at
No(s): CP-29-CR-0000070-2016
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STRASSBURGER, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 16, 2020
Thomas Stuart King appeals pro se from the order dismissing as
untimely his petition filed under the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546. We reverse and remand for further proceedings.
On November 1, 2017, King pled guilty to eight counts of Aggravated
Indecent Assault with Complainant less than sixteen years of age, and one
count of Indecent Exposure.1 On the same day, the trial court sentenced King
to 22½ to 45 years’ incarceration to be served concurrently with a sentence
King was already serving.2
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3125(a)(8) & 3127, respectively.
2 King also filed an appeal from this unrelated case, which is currently before
this Court at docket number 2060 MDA 2019.
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King filed a timely notice of appeal on December 1, 2017, and he listed
in his notice of appeal the issue he wanted this Court to review. However,
even though the trial court ordered King to file a Pa.R.A.P. 1925(b) statement
of matters complained of on appeal, King’s trial counsel failed to do so. This
Court dismissed King’s appeal on April 5, 2018, due to his counsel’s failure to
file an appellate brief. In our dismissal order, we directed King’s counsel to
certify within 10 days that King had been informed of the dismissal. King’s
counsel complied by filing a “Certification from Appellant’s Counsel that
Appellant has been notified of the Dismissal,” on April 19, 2018. King did not
file a petition for allowance of appeal to the Pennsylvania Supreme Court.
Approximately one year and five days later, on April 24, 2019, King filed
the instant PCRA petition. The PCRA court appointed counsel, who submitted
a Turner/Finley3 no merit letter and motion to withdraw. Appellate counsel
noted that although King’s petition might contain a meritorious issue for
ineffective assistance of counsel because King’s prior attorney failed to file a
Rule 1925(b) statement or an appellate brief, the issue was moot because
King’s petition was untimely. The PCRA court agreed, and filed an opinion and
order, on July 9, 2019, granting appellate counsel’s motion to withdraw and
providing King with Pa.R.Crim.P. 907 notice that his petition would be
dismissed as untimely. King did not file a response and the PCRA court
dismissed his petition on October 3, 2019.
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3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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The instant timely appeal followed and both the PCRA court and King
complied with Rule 1925. In its Rule 1925(a) opinion, the court reiterated that
it had properly dismissed King’s petition as untimely. The court also opined
that even if the petition were timely, King’s claim regarding the ineffective
assistance of counsel would not warrant relief because King could not establish
prejudice.
King raises the following issues on appeal:
1. Was the Fulton County Court of Common Pleas in error
when it failed to order a hearing in this matter to address
the seriousness of the claims made?
2. Was the Court in error when it allowed [the] case to move
forward knowing counsel was unprepared for trial?
Was counsel ineffective and violated [King’s] rights under
the VI Amendment to effective assistance of counsel by
lying to his client on numerous occasions about his case and
not being prepared and moving forward with the trial?
Was the Court in error when it knowingly forced [King] to
choose between an attorney who was not ready for trial or
represent himself pro se, knowing [King] had no legal
experience?
3. Did counsel provide [King] with misleading information
on where he would serve a sentence and how long it would
be?
4. Is this PCRA/Appeal filed untimely?
King’s Br. at 4.
When reviewing the denial or grant of relief under the PCRA, “[w]e must
determine whether the PCRA court’s ruling is supported by the record and free
of legal error.” Commonwealth v. Presley, 193 A.3d 436, 442 (Pa.Super.
2018) (citation omitted).
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We address King’s last issue first. A PCRA petition is timely if filed within
one year after the date the judgment of sentence became final. See 42
Pa.C.S.A. § 9545(b)(1); Commonwealth v. Hart, 199 A.3d 475, 480
(Pa.Super. 2018). A judgment of sentence becomes final “at the conclusion of
direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). Pa.R.A.P. 1113(a)
provides that an appellant has until 30 days after the entry of a Superior Court
order to petition for allowance of appeal with the Pennsylvania Supreme Court.
In the instant case, this Court dismissed King’s direct appeal on April 5,
2018. He did not file a petition for allowance of appeal to the Pennsylvania
Supreme Court, and his judgment of sentence therefore became final on May
7, 2018.4 See Pa.R.A.P. 1113(a); 42 Pa.C.S.A. § 9545(b)(3). Thus, King had
until May 7, 2019 to file a timely PCRA petition. See 42 Pa.C.S.A. §
9545(b)(1). Therefore, we conclude that contrary to the PCRA court’s
determination, King’s instant petition, filed on April 24, 2019, was timely.
Accordingly, we proceed to a review of the merits of King’s claims. As
noted by appellate counsel in his Turner/Finley letter, King’s PCRA petition
included a meritorious issue concerning his trial counsel’s per se
ineffectiveness. King presents that same issue in his instant appellate brief.
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4 Thirty days from April 5, 2018 was Saturday, May 5, 2018. Therefore, King
had until Monday, May 7, 2018 to file a timely petition for allowance of appeal.
1 Pa.C.S.A. § 1908 (excluding weekends and holidays from the computation
of time when the last day of the time period falls on a weekend or holiday).
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See King’s Br. at 12. King claims that his trial counsel was per se ineffective
by failing to file either a Rule 1925(b) statement or appellate brief on his
behalf, leading to the dismissal of his direct appeal. As such, King seeks the
reinstatement of his direct appeal rights nunc pro tunc. We find this claim
warrants relief.
A claim of ineffective assistance of counsel ordinarily requires that the
petitioner plead and prove three factors: “(1) the underlying legal claim has
arguable merit; (2) counsel had no reasonable basis for his or her action or
inaction; and (3) the petitioner suffered prejudice because of counsel’s
ineffectiveness.” Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011).
However, where counsel is deemed per se ineffective, prejudice is presumed
and the petitioner is entitled to relief without pleading or proving prejudice.
See United States v. Cronic, 466 U.S. 648, 659 (1984). Per se
ineffectiveness occurs only in limited circumstances, which include counsel’s
failure to file a Rule 1925(b) statement when ordered, and the failure to file
an appellate brief. See Commonwealth v. Brown, 18 A.3d 1147, 1156
(Pa.Super. 2011) (citing Commonwealth v. Halley, 870 A.2d 795 (Pa. 2005)
(failure to file Rule 1925(b) statement), and Commonwealth v. Bennett,
930 A.2d 1264, 1274 (Pa. 2007) (failure to file an appellate brief)).
In this case, King’s trial counsel failed to file both a Rule 1925(b)
statement and an appellate brief. King’s claim that his trial counsel was per
se ineffective is meritorious and warrants the reinstatement of his direct
appeal rights nunc pro tunc. See In Interest of A.P., 617 A.2d 764, 767
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(Pa.Super. 1992), aff'd, 639 A.2d 1181 (Pa.1994) (“Once it is determined that
an appellant was denied his or her constitutional right of direct appeal, the
proper course of action is to grant the appellant leave to file a direct appeal
nunc pro tunc”). Accordingly, we reverse the PCRA court’s order denying
King’s petition and direct the lower court to enter an order reinstating King’s
direct appeal rights nunc pro tunc.
Order reversed. Case remanded for further proceedings consistent with
this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2020
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