J-S36034-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HAROLD LEE FISHER, JR. :
:
Appellant : No. 1289 MDA 2018
Appeal from the Order Entered July 23, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0006728-2015
BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED JULY 19, 2019
Harold Lee Fisher, Jr. (Fisher) appeals an order entered in the Dauphin
County Court of Common Pleas (trial court) denying his pro se Motion for
Release Due to Illegal Sentence (Motion). We vacate the subject order and
remand so that Fisher may, with the benefit of counsel, reassert the grounds
in his Motion as a request for relief pursuant to the Post Conviction Relief Act,
42 Pa.C.S. §§ 9541-9546 (PCRA). Fisher’s right to appointment of counsel on
remand renders moot his appellate counsel’s Petition for Leave to Withdraw.
The following factual and procedural background is gleaned from our
independent review of the certified record and the trial court’s opinion. On
October 28, 2008, Fisher pleaded guilty to Involuntary Deviate Sexual
Intercourse and Corruption of Minors and was sentenced in 2009. See 18
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S36034-19
Pa.C.S. § 4915.1(a)(1). Fisher was required to register as a sexual offender
for the rest of his life. He did not appeal.
On November 3, 2015, Fisher was charged with failing to comply with
those registration requirements and, on February 4, 2016, pursuant to a
negotiated plea agreement, he pled guilty to one count of that offense. Again,
Fisher did not appeal.
On March 23, 2018, Fisher filed the subject Motion pro se.1 He argued
that he was entitled to immediate release based on our Supreme Court’s
decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), where it
held that SORNA may not be applied retroactively so as to increase the
penalties for sexual offenders, including the length of the registration period.
Fisher contended that under Muniz, new registration requirements were
retroactively applied to him and that as a result, his judgment of sentence
cannot stand.
On July 23, 2018, treating the filing as an untimely post-sentence
motion under Pa.R.Crim.P. 720(B)(3)(b), the Clerk of Courts entered an order
denying Fisher’s Motion as a matter of law. Fisher filed a notice of appeal and
then a Rule 1925(b) Statement. On October 3, 2018, the trial court issued a
Rule 1925(a) Opinion noting that the sentencing claim in Fisher’s pro se
____________________________________________
1Fisher filed a pro se Motion for Immediate Release on May 25, 2018, raising
essentially the same grounds for relief.
-2-
J-S36034-19
motion was exclusive to the PCRA, but had been denied without regard for
PCRA legal standards. See 1925(a) Opinion, 10/3/2018, at 2. The trial court
requested that we remand the case “for consideration as a request for PCRA
relief.” Id.2
Fisher was appointed an attorney on November 15, 2018, for the
purposes of this appeal. On March 6, 2019, Fisher filed a Petition for Remand
so that he would be able to present his PCRA claims with the benefit of his
present counsel. The Commonwealth did not file an appellate brief but in an
earlier filing opposing Fisher’s motion for bail pending appeal, the
Commonwealth agreed that the claim in Fisher’s Motion was only cognizable
under the PCRA. See Commonwealth’s Response to Petition’s Motion for Bond
Pending Appeal, 11/1/2018, at ⁋ 8.
Fisher, the Commonwealth and the trial court are correct that the
subject pro se Motion was improperly denied because it should have been
treated as Fisher’s first PCRA petition. “Pursuant to the rules of criminal
procedure and interpretive case law, a criminal defendant has a right to
representation of counsel for purposes of litigating a first PCRA petition
through the entire appellate process.” Commonwealth v. McLaughlin, No.
2770 EDA 2018, 2019 WL 2499325, at *1 (Pa. Super. Ct. June 17, 2019)
____________________________________________
2 The filing of Fisher’s notice of appeal divested the trial court of jurisdiction
precluding reconsideration of the subject motion while the case is pending
appellate review.
-3-
J-S36034-19
(quoting Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super.
2009)); see also Pa.R.Crim.P. 904(C).
To remedy that error, we grant Fisher’s Petition for Remand so that he
can reassert his PCRA claims. On remand, Fisher will be entitled to the
appointment of PCRA counsel. The petition will be treated as if it is Fisher’s
first request for PCRA relief.
Finally, in addition to the Petition for Remand, Fisher’s appellate counsel
has petitioned to withdraw and filed a brief pursuant to Anders v. California,
386 U.S. 738 (1969), asserting that the grounds in Fisher’s Motion are
frivolous. However, the granting of Fisher’s Petition for Remand renders moot
the Petition to Withdraw as Fisher is now entitled to reassert his PCRA claims
with the assistance of counsel.
Order vacated. Petition for Remand granted. Petition to Withdraw
denied as moot. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2019
-4-