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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JAMES E. JACKSON, : No. 2600 EDA 2016
:
Appellant :
Appeal from the PCRA Order, July 19, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-1202331-2005
BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.: FILED AUGUST 17, 2017
James E. Jackson appeals from the order of July 19, 2016, dismissing
his PCRA1 petition. We vacate and remand for further proceedings.
The PCRA court has summarized the procedural history of this case as
follows:
On March 29, 2005, appellant was arrested
and charged with Attempt[ed] Murder, Aggravated
Assault[,] Simple Assault, Terroristic Threats, PIC
and REAP. On April 12, 2007, following a bench trial
before this Court, he was found not guilty of
Attempt[ed] Murder but guilty of the remaining
charges. On July 18, 2007, appellant was sentenced
to twenty-five (25) to fifty (50) years[’]
imprisonment on the Aggravated Assault charge
since it constituted a third strike. See 42 Pa.C.S.
§ 9714. The Commonwealth argued for life without
parole or the maximum sentence on all charges
running consecutively. See 7/18/2007 at 13-14.
1
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
J. S36036/17
On March 28, 2016, appellant filed his first
Motion pursuant to the Post Conviction Relief Act
(PCRA), pro se. On June 13, 2016, following a
review of the record and appellant’s PCRA petition,
this Court sent appellant Notice pursuant to
Pennsylvania Rule of Criminal Procedure 907
advising him of the Court’s intention to dismiss his
PCRA Petition without a hearing, and of his right to
respond within twenty days. Appellant did not
respond to the 907 Notice and his PCRA Petition was
dismissed on July 19, 2016. This [timely] appeal
followed.
PCRA court opinion, 10/17/16 at 1 (footnote omitted).
On July 6, 2017, this court remanded to the PCRA court for 30 days to
determine whether appellant was afforded his rule-based right to assistance
of counsel on a first PCRA petition. See Commonwealth v. Perez, 799
A.2d 848, 851 (Pa.Super. 2002) (“An indigent petitioner is entitled to
appointment of counsel on his first PCRA petition, even where the petition
appears untimely on its face.” (citations omitted)); Pa.R.Crim.P. 904. We
observed that while appellant is represented by counsel on the instant
appeal, the record indicated that appellant’s petition was filed pro se and
counsel did not file an amended petition on appellant’s behalf or respond to
Rule 907 notice. Commonwealth v. Jackson, No. 2600 EDA 2016
(Pa.Super. filed July 6, 2017) (per curiam). We retained panel jurisdiction.
On July 25, 2017, the PCRA court filed a supplemental opinion finding
that appellant’s petition was improperly dismissed without appointment of
counsel. (PCRA court opinion, 7/25/17 at 2-3.) Therefore, it is necessary to
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remand for counsel to be appointed to assist appellant with his first PCRA
petition. Commonwealth v. Ramos, 14 A.3d 894, 895 (Pa.Super. 2011)
(“It is well-established that a first-time PCRA petitioner whose petition
appears untimely on its face is entitled to representation for assistance in
determining whether the petition is timely or whether any exception to the
normal time requirements is applicable.” (citations omitted)).
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2017
-3-
Com. v. Jackson, J.
Combined Opinion