Com. v. Jackson, T. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TARIQ JAHAD YUSUF JACKSON
Appellant No. 3038 EDA 2016
Appeal from the PCRA Order September 1, 2016
in the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0000623-2013
BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 14, 2017
Appellant, Tariq Jahad Yusuf Jackson, appeals from the order
dismissing his first Post Conviction Relief Act1 (“PCRA”) petition as untimely.
Appellant claims he is entitled to relief based on a new constitutional right
recognized in Alleyne v. United States, 133 S. Ct. 2151 (2013). We
vacate and remand with instructions.
The PCRA court summarized the following relevant facts and
procedural history as follows:
On May 31, 2013, [Appellant], entered into a negotiated
plea to robbery as a felony 1. The negotiated plea
included a sentence bargain of [five] to [ten] years which
represented the statutory mandatory minimum sentence
invoked by the District Attorney, as [Appellant]
acknowledged that he displayed a sawed off shotgun at the
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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time that he perpetrated his robbery of a convenience
store. As a result of the guilty plea, other related charges
were withdrawn. We imposed the sentence pursuant to
the negotiated bargain at the time of the entry of the
guilty plea on May 31, 2013. [The United States Supreme
Court decided Alleyne on June 13, 2013, thirteen days
after Appellant was sentenced.] No appeal was filed.
Therefore the conviction became a final conviction [thirty]
days thereafter, June 30, 2013.[2]
PCRA Ct. Op., 9/1/16 at 1.
On August 31, 2015, Appellant, acting pro se, filed the instant PCRA
petition, his first, alleging that his mandatory sentence was illegal pursuant
to Alleyne. The PCRA court appointed PCRA counsel on September 10,
2015. In October 2015, Appellant wrote a letter to PCRA counsel
requesting that he file an amended PCRA petition on his behalf and
suggesting arguments he would like to be included in his petition. (Letter
filed 10/30/15). PCRA counsel never filed an amended petition. PCRA
counsel did notify the PCRA court and Appellant, in a letter dated July 21,
2016, that he believed that Appellant’s claim lacked merit in light of
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016), which
held “that Alleyne does not apply retroactively to cases pending on
collateral review[.]”
2
We note that June 30, 2013 was a Sunday. Therefore, Appellant’s
judgment of sentence became final on July 1, 2013, because Appellant had
until the next business day to file a timely appeal. See 1 Pa.C.S. § 1908.
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On August 2, 2016, the PCRA court issued a notice of its intent to
dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907.
PCRA counsel indicated, in a letter dated August 11, 2016, that he did not
intend to pursue Appellant’s appeal any further, yet he did not seek leave to
withdraw under Turner/Finley.3 As a result, Appellant filed a pro se
response to the PCRA court’s Rule 907 notice wherein he alleged that PCRA
counsel was ineffective for failing to assert prior counsel’s ineffectiveness for
not filing a direct appeal. In his response, Appellant also cited PCRA
counsel’s failure to file an amended PCRA petition or a Turner/Finley letter
brief. On September 1, 2016, via an order and opinion, the PCRA court
denied Appellant’s petition as untimely.
Appellant, again acting pro se, timely appealed from this order and
submitted a court-ordered Pa.R.A.P. 1925(b) statement of matters
complained of on appeal wherein he requested, inter alia, the appointment
of new PCRA counsel. The court issued a Pa.R.A.P. 1925(a) response,
referencing its September 1, 2016 opinion. PCRA counsel filed an appellate
brief in this Court.4
In this appeal, Appellant raises one issue:
3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
4
During the pendency of this appeal, PCRA counsel also filed a motion
requesting the appointment of new PCRA counsel in light of Appellant’s claim
that PCRA counsel was ineffective. This Court denied the motion, via per
curiam order, on November 21 2016.
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Whether [Appellant] was sentenced to an illegal mandatory
sentence related to possession of a firearm pursuant to
title 42 Pa.C.S.A. § 9712(a) where no direct appeal was
timely filed by plea counsel?
Appellant’s Brief at 3 (citations and some capitalization omitted).
Preliminarily, we must consider whether Appellant had the benefit of
meaningful counsel during the pendency of his first PCRA petition. See
Commonwealth v. Smith, 121 A.3d 1049, 1053 (Pa. Super. 2015)
(citation omitted), appeal denied, 136 A.3d 981 (Pa. 2016); Pa.R.Crim.P.
904(C). A general rule-based right to initial PCRA counsel is provided under
Pennsylvania law:
While a PCRA petitioner does not have a Sixth Amendment
right to assistance of counsel during collateral review, this
Commonwealth, by the way of procedural rule, provides
for the appointment of counsel during a petitioner’s first
petition for post conviction relief.
Smith, 121 A.3d at 1053 (citation omitted).
Even if a PCRA petition is patently untimely, the right to a counseled
first PCRA petition remains. See Commonwealth v. Smith, 818 A.2d 494,
500-01 (Pa. 2003) (“[A]n indigent petitioner, whose first PCRA petition
appears untimely, is entitled to the assistance of counsel in order to
determine whether any of the exceptions to the one-year time limitation
apply.”). Further, once appointed, counsel must take certain affirmative
steps:
When appointed, counsel’s duty is to either (1) amend the
petitioner’s pro se Petition and present the petitioner’s
claims in acceptable legal terms, or (2) certify that the
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claims lack merit by complying with the mandates of
Turner/Finley. “If appointed counsel fails to take either
of these steps, our courts have not hesitated to find that
the petition was effectively uncounseled.”
Commonwealth v. Cherry, 155 A.3d 1080, 1083 (Pa. Super. 2017)
(citation omitted).
Our review of the certified record reveals that Appellant specifically
requested that PCRA counsel file an amended PCRA petition on his behalf or
Turner/Finley, and ultimately requested the appointment of new counsel
once PCRA counsel indicated that he did not intend to pursue Appellant’s
matter any further. In addition, PCRA counsel never sought to properly
withdrawal pursuant to the dictates of Turner/Finley. Accordingly, we
conclude that Appellant did not receive the benefit of counsel, as
contemplated under Pa.R.Crim.P. 904(C), during the pendency of his initial
PCRA petition. See Smith, 121 A.3d 1049, 1053; Cherry, 155 A.3d at
1083. Therefore, we vacate the order denying PCRA relief and remand to
the PCRA court to determine whether current PCRA counsel will continue to
represent Appellant by either filing an amended PCRA petition or a
Turner/Finley letter brief, or whether a new PCRA counsel should be
appointed.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2017
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