Com. v. Moore, W.

J-S50019-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : WILLIAM MOORE, : : Appellant : No. 34 WDA 2014 Appeal from the PCRA Order Entered December 17, 2013, In the Court of Common Pleas of Allegheny County, Criminal Division, at No. CP-02-CR-0006900-2008. BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and ALLEN, JJ. MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 6, 2014 Appellant, William Moore, appeals pro se from the order entered on December 17, 2013, denying his petition for relief filed pursuant to the Post -9546. After careful review, we vacate and remand with instructions. On September 21, 2010, Appellant entered a negotiated plea of nolo contendere on charges of unlawful contact with a minor, statutory sexual assault, and aggravated indecent assault. Pursuant to the plea agreement, the trial court sentenced Appellant to an aggregate term of three and one- half to seven years of incarceration, followed by five years of probation, with 506 days of credit for time served. Sentencing Order, 9/21/10. J-S50019-14 On September 20, 2013, Appellant filed a pro se PCRA petition. The PCRA court appointed counsel, and counsel filed a petition to withdraw pursuant to Turner/Finley.1 On December 9, 2013, the PCRA court December 17, 2013, it d followed. On appeal, Appellant raises the following issues: A. Did the lower court err in determining that Appellant's PCRA petition was untimely? B. Did the lower [court] err in permitting PCRA attorney to withdraw? C. Did the Commonwealth breach their plea agreement? D. Did plea counsel offer erroneous advice? Appella Our standard of review of an order denying PCRA relief is whether the findings of the PCRA court are supported by the record and are free of legal error. Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011); Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). The findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). 1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). -2- J-S50019-14 Additionally, a PCRA petition must be filed within one year of the date that the judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time requirement is mandatory and jurisdictional in nature, and the court may not ignore it in order to reach the merits of the petition. Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). A judgment of 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 However, an untimely petition may be received when the petition alleges, and the petitioner proves, that any of the three limited exceptions to the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii), is met.2 A petition invoking one of these exceptions must be filed 2 The exceptions to the timeliness requirement are: (i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States; (ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or (iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in -3- J-S50019-14 within sixty days of the date the claim could first have been presented. 42 Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the - specific facts that demonstrate his claim was raised within the sixty-day time Carr, 768 A.2d at 1167. As noted above, the PCRA c in finding the instant PCRA petition untimely, the PCRA court erred in permitting counsel to withdraw under Turner/Finley ition to withdraw was based on the conclusion that, because the instant PCRA petition was untimely, no relief was available. Motion to Withdraw and Letter to Appellant, 12/2/13. Counsel was incorrect. Appellant was sentenced on September 21, 2010. As no direct appeal October 21, 2010. Therefore, Appellant had until October 21, 2011 to file a timely PCRA petition. While not titled a PCRA petition, Appellant filed a pro se motion to withdraw guilty plea on December 10, 2010, and the record reflects that no ruling was entered on the motion. this section and has been held by that court to apply retroactively. 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii). -4- J-S50019-14 collateral review, and that any petition filed after the judgment of sentence Commonwealth v. Johnson December 10, 2010 motion to withdraw guilty plea should have been considered a timely first PCRA petition as it was filed within one year from the date that his judgment of sentence became final. Additionally, because petition, Appellant was entitled to the appointment of counsel. See Pa.R.Crim.P. 904(c) (providing that an indigent defendant shall be appointed representation for a first PCRA petition). The appointment of counsel throughout the litigation of a first petition is mandatory even when it appears that the petition is untimely or the petition does not present a cognizable claim. Commonwealth v. Kutnyak, 781 A.2d 1259, 1262 (Pa. Super. 2001).3 For these reasons, we vacate the December 17, 2013 order and remand this matter for the PCRA court to appoint counsel to assist Appellant in filing an amended and timely first PCRA petition. See Commonwealth v. Swartzfager, 59 A.3d 616 (Pa. Super. 2012) (vacating and remanding 3 e been treated as a timely PCRA petition and that this matter should be remanded for the appointment -5- J-S50019-14 where the PCRA court erroneously permitted counsel to withdraw from representing an appellant on an untimely PCRA petition where the record reflected that an earlier timely petition had been filed but on which there was no ruling and the appellant had not been provided counsel). also conduct a hearing at least to analyze whether the delay in filing the Id. at 619. Finally, depending on the issues raised, the PCRA court should also decide whether it Id. at 619 n.4. Order vacated. Case remanded with instructions. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 10/6/2014 -6-