J-S15031-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MATHIS AVERY, SR.,
Appellant No. 1175 EDA 2015
Appeal from the PCRA Order April 14, 2015
in the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0002446-2009
BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 21, 2016
Appellant, Mathis Avery, Sr., appeals pro se from the order denying his
third petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. We vacate and remand.
We take the following facts and procedural history from the PCRA
court’s October 1, 2015 opinion and our independent review of the certified
record. On November 2, 2011, a jury convicted Appellant of attempted
murder, aggravated assault, and possessing an instrument of crime. On
December 20, 2011, the court sentenced Appellant to an aggregate term of
not less than 235 months nor more than 470 months’ incarceration, to be
followed by five years’ probation.
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*
Retired Senior Judge assigned to the Superior Court.
J-S15031-16
On August 20, 2012, the Superior Court affirmed Appellant’s judgment
of sentence. (See Commonwealth v. Avery, 60 A.3d 575 (Pa. Super. filed
Aug. 20, 2012) (unpublished memorandum)). Appellant did not petition for
allowance of appeal with the Pennsylvania Supreme Court.
On February 19, 2013, and September 18, 2013, Appellant filed pro se
post-conviction petitions that he incorrectly titled as petitions for
modification of sentence. The petitions challenged, inter alia, the legality of
his sentence and counsel’s effectiveness, and alleged newly discovered
evidence. The court did not appoint counsel or decide these motions
because they were not forwarded to the judge’s chambers for disposition as
mandated by Pennsylvania Rule of Criminal Procedure 903(A). (See PCRA
Court Opinion, 10/01/15, at 3 n.3); see also Pa.R.Crim.P. 903(A) (“Upon
receipt of a petition for post-conviction collateral relief, the clerk of courts
promptly shall . . . transmit the petition . . . to the trial judge[.]”).
On November 21, 2013, Appellant filed what was in fact his third PCRA
petition pro se. Thereafter, the court appointed PCRA counsel, who filed a
Turner/Finley1 “no-merit” letter and requested leave to withdraw. On
February 18, 2015, the court granted counsel’s petition to withdraw and
served Appellant with notice of its intent to dismiss the PCRA petition. See
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1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Pa.R.Crim.P. 907(1). In response, Appellant filed a motion for
reconsideration of his sentence on March 11, 2015. On April 14, 2015, the
court denied Appellant’s PCRA petition. Appellant timely appealed the denial
pro se.2
However, we do not reach the issue of whether the court properly
denied what was Appellant’s third PCRA petition, because we agree with the
PCRA court that Appellant’s motions for reconsideration of sentence, which
were filed after his judgment of sentence became final, and raised issues
cognizable under the PCRA, should have been treated as PCRA petitions.
(See PCRA Ct. Op., at 3 n.3); see also Commonwealth v. Kutnyak, 781
A.2d 1259, 1261 (Pa. Super. 2001) (treating appellant’s motion as PCRA
petition “regardless of the manner in which the petition is titled”) (citation
omitted).
It is well-settled that, “[g]enerally speaking, an indigent petitioner is
entitled to the appointment of counsel on his first post-conviction attack of
his conviction. This right to counsel, although not constitutionally mandated,
derives from the Pennsylvania Rules of Criminal Procedure, see Pa.R.Crim.P.
904(B)[.]” Commonwealth v. Stout, 978 A.2d 984, 988 (Pa. Super. 2009)
(case citation omitted).
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2
The PCRA court did not order Appellant to file a statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). It filed an opinion on
October 1, 2015. See Pa.R.A.P. 1925(a).
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Here, because Appellant’s timely post-conviction petitions were not
forwarded to the trial judge for disposition in accordance with Pennsylvania
Rule of Criminal Procedure 903(A), the court did not appoint counsel for
Appellant’s first PCRA petition, in violation of Criminal Rule 904(B). See id.
Additionally, it never ruled on the request for relief. As a result, Appellant
was denied the opportunity to raise an appellate challenge of the PCRA
court’s failure to appoint counsel. In other words, due to a breakdown of the
court system, Appellant was denied both his right to counsel for his first
PCRA petition, and the opportunity to challenge that issue on appeal.
Therefore, we are constrained to vacate the court’s order denying what
was in fact Appellant’s third petition and remand for the appointment of
counsel for Appellant’s timely first PCRA petition “pursuant to proper post-
conviction relief proceedings.” Id. (vacating order denying appellant’s
improperly titled petition for writ of habeas corpus and remanding for
appointment of PCRA counsel).
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2016
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