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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
SAMUEL C. PIERCE
Appellant No. 653 WDA 2016
Appeal from the PCRA Order April 14, 2016
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0004510-2009
BEFORE: PANELLA, J., STABILE, J., and STEVENS, P.J.E.
MEMORANDUM BY PANELLA, J. FILED MAY 5, 2017
Appellant, Samuel C. Pierce, appeals pro se from the denial of his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546, as premature. We vacate and remand for
appointment of PCRA counsel.
This case can be best described as a procedural debacle of the lower
court’s and the parties’ making. Once the procedural mess is untangled, the
disposition is relatively straightforward.
On March 17, 2009, Appellant was charged with involuntary deviate
sexual intercourse (“IDSI”), statutory sexual assault, indecent assault, and
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Former Justice specially assigned to the Superior Court.
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corruption of minors.1 A bench trial took place in May 2015. The trial court
acquitted Appellant of IDSI and corruption of minors, but found him guilty of
statutory sexual assault and indecent assault. Appellant was immediately
sentenced to an aggregate term of five to ten years’ imprisonment, to be
followed by a two-year term of probation. As discussed later, in a move
contrary to the applicable statute, following sentencing, the trial court
ordered the Sexual Offender’s Assessment Board (“SOAB”) to conduct a
sexually violent predator (“SVP”) evaluation to determine if Appellant should
be designated as an SVP under 42 Pa.C.S.A. § 9799.24.
On March 28, 2016, Appellant filed a pro se PCRA petition.2 As
Appellant’s SVP determination was still pending, the trial court denied
Appellant’s PCRA petition, without prejudice, as premature. Appellant filed a
pro se notice of appeal on May 4, 2016.3
On June 30, 2016, following an SVP evaluation by the SOAB, the trial
court held Appellant’s SVP hearing. Based upon the evaluation as well as the
testimony presented at the hearing, the trial court found Appellant met the
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1
18 Pa.C.S.A. §§ 3123(A)(7), 3122.1, 3126, and 6301(A)(1), respectively.
2
Under Pennsylvania law, there is no right to hybrid representation either at
trial or on the appellate level. See Commonwealth v. Padilla, 80 A.3d
1238, 1259 (Pa. 2013). As such, when a defendant who is still technically
represented by counsel files a pro se motion, brief, or petition, the court
should file it and forward the document to counsel. See id., at 1258.
3
Appellant’s notice of appeal was dated April 29, 2016, but was not
docketed until May 4, 2016.
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criteria for an SVP. Thereafter, without filing a separate notice of appeal,
Appellant’s counsel filed an appellate brief challenging the sufficiency of the
evidence supporting Appellant’s convictions of statutory sexual assault and
indecent assault, as well as his classification as an SVP.
Prior to reaching the merits of this appeal, we must clarify which
issues Appellant has properly presented for our review. The formal purpose
of our Court “is to maintain and effectuate the decisional law of the Supreme
Court of Pennsylvania as faithfully as possible.” Commonwealth v.
Simmons, 565 A.2d 481, 484 (Pa. 1989) (citation omitted). To that end, we
do not have the power to review the work of a lower court without a
statutory right of appeal and we do not have any broad discretionary powers
of review. See id.
In general, a party only has a statutory right of appeal as of right from
a final order, which encompasses a judgment, decision, decree, sentence,
and adjudication. See Pa.R.A.P. 102. More specifically, a final order is an
order that disposes of all claims and all parties, or contains an express
determination that an immediate appeal would facilitate a resolution of the
entire case. See Pa.R.A.P. 341(a),(b)(1),(3),(c). Here, it is important to note
that the instant appeal to this court is based solely on the trial court’s denial
of the PCRA petition. This is a final order for purposes of our review and
pertains exclusively to Appellant’s claims of ineffective assistance of trial
counsel.
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Additionally, “a single appeal is [generally] incapable of bringing on for
review more than one final order, judgment or decree.” General Elec.
Credit Corp. v. Aetna Cas. & Sur. Co., 263 A.2d 448, 452 (Pa. 1970). Any
argument that the PCRA appeal implicitly includes a review of the judgment
of sentence is unavailing. The judgment of sentence was a separate,
appealable final order that trial counsel neglected to appeal. Further, at the
time of the filing of the notice of appeal, Appellant’s SVP determination had
yet to take place. Appellant cannot logically argue that this determination
was intended to be included as part of his appeal. Cf. K.H. v. J.R., 826 A.2d
863, 871 (Pa. 2003) (“[I]n the context of a single action, a notice of appeal
filed from the entry of judgment will be viewed as drawing into question any
prior non-final orders that produced the judgment.”)
Accordingly, our jurisdiction is confined to a review of that order. We
refuse to address the challenges to Appellant’s judgment of sentence or SVP
determination raised by counsel in his appellate brief.
Turning to Appellant’s sole issue presented on appeal, the trial court
contends that it dismissed Appellant’s PCRA petition because it was filed
prior to the finalization of Appellant’s judgment of sentence, and therefore
was premature. A defendant may not file a PCRA petition prior to a
judgment of sentence becoming final; a petition will only be considered after
he has waived or exhausted his direct appeal rights. See Commonwealth
v. Fralic, 625 A.2d 1249, 1252 n.1 (Pa. Super. 1993) (holding that
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appellant’s PCRA petition was premature because he filed it before he
exhausted his direct appeal rights).
Here, because of the unique circumstances of the case and the lower
court’s actions, the finality of Appellant’s judgment of sentence presents a
procedural quagmire. Due to Appellant’s convictions of sexually violent
offenses,4 the trial court was required to order an SVP assessment. See 42
Pa.C.S.A. § 9799.24(a). This assessment should have been conducted prior
to the imposition of sentence. See 42 Pa.C.S.A. § 9799.24(a); see also
Commonwealth v. Baird, 856 A.2d 114, 118 (Pa. Super. 2004) (vacating
judgment of sentence based on trial court’s failure to conduct SVP hearing
prior to sentencing). However, the trial court did not follow the procedure
outlined by the statute, and instead chose to sentence Appellant more than
one year before determining his SVP status.
Prior panels of this Court have addressed the timing of the finality of
sentence in situations where a defendant waives his right to have his SVP
status determined prior to sentencing. For instance, in Commonwealth v.
Whanger, 30 A.3d 1212 (Pa. Super. 2011), we found that although §
9799.24(a) requires that a defendant’s SVP assessment must be conducted
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4
Section 9799.12 defines sexually violent offenses as “offense[s] specified
in section 9799.14 (relating to sexual offenses and tier system) as a Tier I,
Tier II, or Tier III sexual offense.” 42 Pa.C.S.A. § 9799.12. Appellant was
convicted of statutory sexual assault and indecent assault, which are
classified as Tier II and Tier I sexual offenses, respectively. See 42
Pa.C.S.A. § 9799.14(c)(1.1); (b)(6).
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by the SOAB prior to sentencing, a defendant can waive the pre-sentence
requirement in a written colloquy. See id., at 1214. Further, if a defendant
knowingly waives the pre-sentence SOAB assessment requirement, the
judgment of sentence is not final until the SVP determination is rendered.
See Commonwealth v. Schrader, 141 A.3d 558, 561 (Pa. Super. 2016).
However, we have not explicitly addressed the finality of a judgment of
sentence where a defendant has not waived his right to have the SVP
hearing conducted prior to sentencing and the SVP hearing occurs after
sentencing, unchallenged.5 This is the situation we encounter here. There is
no evidence of record that Appellant ever waived the right to a pre-sentence
SVP hearing. As such, the holding in Schrader delaying the finality of the
judgment of sentence until the SVP determination is not applicable here.
Additionally, we have long held that an SVP order is a non-punitive collateral
consequence of a criminal judgment of sentence. See Commonwealth v.
Harris, 972 A.2d 1196, 1201 (Pa. Super. 2009). “As the SVP order is
collateral to the sentence, but a final order relative to the sole issue before
the SVP court, a defendant whose SVP hearing occurs after sentencing can
obviously appeal from that order regardless of whether it makes judgment of
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5
Of course, had trial counsel objected to the lower’s court’s failure to adhere
to the procedural mandates of the applicable statute and timely appealed
Appellant’s judgment of sentence, we would have simply vacated Appellant’s
judgment of sentence, remanded for resentencing, and avoided the
procedural problem. See Baird, 856 A.2d at 118.
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sentence final.” Commonwealth v. Whanger, 30 A.3d 1212, 1219 n.3 (Pa.
Super. 2011) (Bowes, J., concurring opinion). Thus, in this unique situation,
we find that Appellant’s judgment of sentence became final thirty days after
sentencing. See Pa.R.Crim.P. 903(a).
As such, Appellant’s PCRA petition was timely. See Pa.R.Crim.P.
901(A). However, we cannot reach the merits of Appellant’s PCRA petition
because the lower court failed to appoint counsel prior to dismissing his
PCRA petition.6
Rule 904 of the Rules of Criminal Procedure requires the appointment
of counsel for an indigent petition on his first PCRA petition. See
Pa.R.Crim.P. 904(c). As such, this Court has stated as follows:
An indigent petitioner is entitled to representation by counsel for
a first petition filed under the PCRA. This right to representation
exists throughout the post-conviction proceedings, including any
appeal from disposition of the petition for post-conviction relief.
Once counsel has entered an appearance on defendant’s behalf,
counsel is obligated to continue representation until the case is
concluded or counsel is granted leave by the court to withdraw
his appearance.
Commonwealth v. Brown, 836 A.2d 997, 998-999 (Pa. Super. 2003)
(citations and internal quotation marks omitted).
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6
We recognize that technically trial counsel represented Appellant at the
time Appellant filed his pro se PCRA petition, and later represented Appellant
at his SVP hearing. However, as Appellant’s allegations of ineffectiveness
within his PCRA petition were aimed at trial counsel, it would have been
inappropriate for trial counsel to assist Appellant with his PCRA petition.
Additionally, there is no evidence of record that trial counsel was in any way
involved with the filing, or disposition, of Appellant’s PCRA petition.
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Here, our review of the certified record reflects that Appellant filed his
first petition for PCRA relief acting pro se, averred a lack of resources to hire
an attorney, and requested the court to appoint counsel to represent him.
See PCRA Petition, 3/28/16, at 7. Indeed, Appellant is proceeding in forma
pauperis in this appeal.
Because the court did not appoint counsel to represent Appellant in
this first PCRA petition, we vacate the dismissal order. We remand this case
to the PCRA court to appoint counsel to represent Appellant, and for further
proceedings as are appropriate under the PCRA. See Pa.R.Crim.P. 904(c);
Commonwealth v. Evans, 866 A.2d 442, 444-446 (Pa. Super. 2005).
Order vacated. Case remanded for proceedings consistent with this
decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2017
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