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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LEONARD SHUGARS :
:
Appellant : No. 1110 WDA 2019
Appeal from the PCRA Order Entered June 21, 2019
In the Court of Common Pleas of McKean County
Criminal Division at No(s): CP-42-CR-0000563-2002
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*
JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED JANUARY 22, 2020
Appellant, Leonard Shugars, appeals pro se from the order entered in
the McKean County Court of Common Pleas, which denied his pro se petition
brought under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§
9541-9546. On September 12, 2003, Appellant entered a guilty plea to one
count of aggravated indecent assault of a person younger than 13. The court
sentenced Appellant on August 26, 2004, to 4 to 8 years’ incarceration. The
court also adjudicated Appellant a sexually violent predator (“SVP”) and
required him to register as a sex offender for life under Megan’s Law II. While
post-sentence motions were pending, Appellant filed a pro se PCRA petition
on November 15, 2004. On January 17, 2005, the court dismissed Appellant’s
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* Retired Senior Judge assigned to the Superior Court.
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November 15th filing as premature. Subsequently, this Court affirmed the
judgment of sentence on March 24, 2006.
On June 13, 2019, Appellant filed pro se the current PCRA petition. The
PCRA court deemed the petition Appellant’s second PCRA petition and did not
appoint counsel. The court denied PCRA relief without a hearing on June 21,
2019.1 On July 19, 2019, Appellant timely filed a pro se notice of appeal. The
court ordered Appellant on July 25, 2019, to file a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b); Appellant timely complied.
Preliminarily, a PCRA petition filed during the pendency of a direct
appeal is premature, and the court lacks jurisdiction to review it.
Commonwealth v. Seay, 814 A.2d 1240, 1241 (Pa.Super. 2003) (reiterating
PCRA cannot be invoked until judgment of sentence is final; petition filed
during pendency of direct appeal does not constitute first PCRA petition).
Additionally, “[p]ursuant 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
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1 Notice of the court’s intent to dismiss a PCRA petition without a hearing
under Rule 907 is mandatory. Commonwealth v. Guthrie, 749 A.2d 502
(Pa.Super. 2000). Nevertheless, the failure to challenge on appeal the
absence of Rule 907 notice constitutes waiver. Commonwealth v. Taylor,
65 A.3d 462 (Pa.Super. 2013). Additionally, where a PCRA petition is
untimely, the court’s failure to issue Rule 907 notice is not reversible error.
Id. Here, the court dismissed Appellant’s PCRA petition without a hearing but
did not issue Rule 907 notice. Based on our disposition, however, we decline
to address the court’s non-compliance with Rule 907.
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process.” Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa.Super.
2009) (en banc). See also Pa.R.Crim.P. 904(C) (stating indigent defendant
is entitled to counsel for litigation of first PCRA petition). “The denial of PCRA
relief [on a first petition] cannot stand unless the petitioner was afforded the
assistance of counsel.” Commonwealth v. Perez, 799 A.2d 848, 851
(Pa.Super. 2002). Importantly, “[a]n indigent petitioner is entitled to
appointment of counsel on his first PCRA petition, even where the petition
appears untimely on its face.” Id. (emphasis added).
Instantly, Appellant filed a pro se PCRA petition on November 15, 2004,
while post-sentence motions were pending in the trial court. The court denied
Appellant’s petition as premature on January 17, 2005. On March 24, 2006,
this Court affirmed the judgment of sentence. Subsequently, Appellant filed
pro se the current PCRA petition on June 13, 2019. The PCRA court did not
appoint counsel and, on June 21, 2019, it dismissed the petition as an
untimely second PCRA petition. Because Appellant’s November 2004 filing
was premature it did not constitute a “first PCRA petition.” See Seay, supra.
Thus, Appellant’s current PCRA petition is actually his first relative to the
judgment of sentence. The record confirms Appellant is indigent and
requested appointment of counsel for the present petition. Therefore,
Appellant was entitled to appointment of counsel. See Pa.R.Crim.P. 904(C);
Robinson, supra; Perez, supra. Accordingly, we vacate the order denying
PCRA relief and remand for appointment of counsel and further proceedings.
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See Commonwealth v. Kutnyak, 781 A.2d 1259 (Pa.Super. 2001) (vacating
order denying PCRA relief and remanding for appointment of counsel and
further proceedings, where court failed to appoint counsel for first PCRA
petition).
Order vacated; case remanded for further proceedings. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/22/2020
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