J-S41044-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MARQUISE PIERRE DON MIMS :
:
Appellant : No. 3234 EDA 2017
Appeal from the PCRA Order September 1, 2017
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003336-2016
BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED AUGUST 23, 2018
Appellant, Marquise Pierre Don Mims, appeals from the order entered in
the Bucks County Court of Common Pleas, which dismissed his first petition
filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-
9546. On December 5, 2016, Appellant entered a negotiated guilty plea to
acquisition of a controlled substance by fraud and identity theft. The court
sentenced Appellant that day to the negotiated aggregate sentence of three
to six years’ imprisonment. Appellant did not file post-sentence motions or a
direct appeal.
On March 6, 2017, Appellant timely filed a pro se PCRA petition. The
court appointed counsel on March 16, 2017, who filed an amended PCRA
petition on July 31, 2017. Without issuing any notice per Pa.R.Crim.P. 907,
the court summarily dismissed the petition on September 1, 2017. Appellant
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S41044-18
timely filed a notice of appeal on September 29, 2017. On October 2, 2017,
the court ordered Appellant to file a Pa.R.A.P. 1925(b) statement; Appellant
timely complied on October 23, 2017.
Preliminarily, Pennsylvania Rule of Criminal Procedure 907 provides, in
relevant part:
Rule 907. Disposition Without Hearing
Except as provided in Rule 909 for death penalty cases,
(1) the judge shall promptly review the petition, any
answer by the attorney for the Commonwealth, and other
matters of record relating to the defendant’s claim(s). If the
judge is satisfied from this review that there are no genuine
issues concerning any material fact and that the defendant
is not entitled to post-conviction collateral relief, and no
purpose would be served by any further proceedings, the
judge shall give notice to the parties of the intention to
dismiss the petition and shall state in the notice the reasons
for the dismissal. The defendant may respond to the
proposed dismissal within 20 days of the date of the notice.
The judge thereafter shall order the petition dismissed,
grant leave to file an amended petition, or direct that the
proceedings continue.
Pa.R.Crim.P. 907(1). Issuance of Rule 907 notice is mandatory.
Commonwealth v. Guthrie, 749 A.2d 502 (Pa.Super. 2000). See also
Commonwealth v. Feighery, 661 A.2d 437 (Pa.Super. 1995) (explaining
notice requirement of intention to dismiss is mandatory; vacating and
remanding for fulfillment of notice requirement). 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); Commonwealth
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v. Williams, 909 A.2d 383 (Pa.Super. 2006).1
Instantly, Appellant filed a timely pro se PCRA petition on March 6, 2017,
and a counseled amended PCRA petition on July 31, 2017. The court
summarily dismissed the petition on September 1, 2017, without first issuing
Rule 907 notice and giving Appellant an opportunity to respond. See
Pa.R.Crim.P. 907(1); Guthrie, supra; Feighery, supra. Appellant has
challenged the lack of Rule 907 notice on appeal. (See Appellant’s Brief at 7,
11-12). Compare Taylor, supra; Williams, supra. Accordingly, we vacate
the order denying PCRA relief and remand for appropriate further proceedings.
Order vacated; case remanded for further proceedings. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/18
____________________________________________
1Further, where a PCRA petition is untimely, the court’s failure to issue Rule
907 notice is not reversible error. Taylor, supra. Because the current PCRA
petition was timely filed, this exception does not apply.
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Com. v. Mims, M.
Combined Opinion