Opinion
J-S52031-15 No. 233 WDA 2015
08-07-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. DOUGLAS BRUNSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order of December 1, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0008333-2009
BEFORE: SHOGAN, J., OLSON, J., and WECHT, J. MEMORANDUM BY WECHT, J.:
Brunson appeals the December 1, 2014 order denying his petition for relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541-46. Brunson argues that the PCRA court failed to issue notice to Brunson of the court's intent to dismiss this particular case without an evidentiary hearing. For the reasons set forth herein, we agree with Brunson that he is entitled to a remand in order for the PCRA court to issue notice, and to provide Brunson with an opportunity to respond to the notice. Both the trial court and the Commonwealth concede that this case should be remanded. Hence, we vacate the December 1, 2014 order, and remand for proceedings consistent with this memorandum.
The PCRA court summarized what the court characterized as a "long and somewhat convoluted procedural history," see PCRA Court Opinion ("P.C.O."), 3/31/2015, at 2, as follows:
On December 17, 2009, [Brunson] pled guilty at CC# 200907863 to one count of robbery-inflict serious bodily injury, one count of retail theft, and one count of simple assault. [Brunson] also pled on that date at CC# 200908333 to one count of robbery-inflict serious bodily injury, one count of retail theft, and one count of simple assault. [The trial court] sentenced [Brunson] on March 3, 2010, at CC# 2009078693 to eight-five to one hundred [and] seventy months['] incarceration on the robbery count with no further penalty on the remaining counts and at CC# 200908333 [to] ninety to one hundred [and] eighty months['] incarceration [on the robbery count, and ordered it to run consecutive to the other robbery conviction,] with no further penalty on the remaining counts.P.C.O. at 2-4 (some capitalization modified for consistency).
[Brunson] filed a post-sentence motion[,] which was denied on March 17, 2010. A supplemental post-sentence motion was denied on Septemer 23, 2010. [Brunson] filed a notice of appeal on October 13, 2010[,] and on September 13, 2011, the Pennsylvania Superior Court affirmed [Brunson's] judgment of sentence. [Brunson] did not petition the Supreme Court of Pennsylvania for review.
On October 12, 2012, [Brunson] filed, pro se, a [PCRA] petition. [The PCRA court] appointed counsel and an amended PCRA petition on both CC# 200908333 and CC# 200907863 was filed by counsel on May 14, 2013. On September 23, 2013, following a hearing on the PCRA petition, [the PCRA court] resentenced [Brunson] at CC# 200908333 to sixty-five to one hundred thirty months['] incarceration[, which was required because the Commonwealth conceded that it had incorrectly calculated Brunson's offense gravity score for purposes of applying the sentencing guidelines.] Further, [the PCRA court] determined that the Commonwealth had correctly argued for, and the court had applied, the deadly weapons enhancement at CC# 200907863. For that reason, on October 16, 2013, [the PCRA court] dismissed the PCRA [petition] at CC# 200907863 and granted the PCRA [petition] at CC# 200908333, reinstating post-sentence and appellate rights. [Brunson] filed post-sentence
motions at CC# 200908333[,] which [the PCRA court] denied. [Brunson] filed a notice of appeal on November 1, 2013 and a concise statement of errors complained of on appeal on November 6, 2013. On February 19, 2014, appointed counsel discontinued the appeal.
After discontinuing his appeal, [Brunson], pro se, on March 25, 2014, filed another PCRA petition at both CC# 200908333 and CC# 200907863. [Brunson] alleged [a] violation of the terms of the plea agreement and ineffective assistance of his PCRA counsel for failing to advise him of his right to withdraw his guilty plea. [The PCRA court] issued an intent to dismiss order [pursuant to Pa.R.Crim.P. 907] on March 25, 2014[,] and on April 22, 2014, dismissed the PCRA petition for containing issues which had been previously litigated and issues which had no arguable merit. Both the 3/25/14 order and the 4/22/14 order omitted the docket number CC# 200908333. The orders only listed CC# 200907863 and were docketed as such. On December 1, 2014, [the PCRA court] amended the 4/22/14 order to include both docket numbers.
On January 5, 2015, Brunson filed a notice of appeal in the case docketed at CC# 200908333. On the next day, the PCRA court directed Brunson to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January 28, 2015, Brunson filed a timely statement. The PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a) on March 31, 2015.
Brunson raises the following question for our review:
Under Pa.R.Crim.P. 907(1), the PCRA court must provide a notice of intent to dismiss. In this case, the PCRA court did not provide a notice of intent to dismiss. Did the court err?Brief for Brunson at 4. We agree with Brunson, the PCRA court, and the Commonwealth that the PCRA court erred.
Pursuant to Rule 907(1), a PCRA judge must review a PCRA petition, the Commonwealth's answer to the petition, and any other matters related to the claims set forth in the petition. Pa.R.Crim.P. 907(1). Then:
[i]f 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.Id. Compliance with this rule is mandatory, see Commonwealth v. Guthrie , 749 A.2d 502, 503 (Pa. Super. 2000), unless the PCRA petition was untimely filed. See Commonwealth v. Lawson , 90 A.3d 1, 5-6 (Pa. Super. 2013).
Here, Brunson's PCRA petition undeniably was timely. Moreover, it is undisputed that the PCRA court issued notice only as to the PCRA petition filed at CC# 200907863. The PCRA court did not comply with Rule 907 with regard to the petition filed at CC# 200908333, and Brunson was not provided with an opportunity to respond, which he would have had the right to do pursuant to the express terms of the rule, had the court issued notice of its intent to dismiss the petition. Consequently, in response to the Brunson's plea and to the concessions of the Commonwealth and the trial court, we vacate the PCRA court's dismissal order with respect to CC# 200908333, and remand the case for further proceedings in compliance with this memorandum and Rule 907.
Order vacated. Case remanded. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2015
We recognize that the PCRA court amended its order so as to dismiss both the petition filed at CC# 200908333 and the petition filed at CC# 20090786. However, Brunson listed only CC# 200908333 in his notice of appeal. Hence, our holding is limited only to the order as it pertains to CC# 200908333.