Opinion
725 WDA 2023 J-S46020-23
01-09-2024
COMMONWEALTH OF PENNSYLVANIA v. JOSHUA JOHN MARANEY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered March 30, 2023 In the Court of Common Pleas of Greene County Criminal Division at CP-30-CR-0000377-2020
BEFORE: DUBOW, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM
MURRAY, J.
Joshua John Maraney (Appellant) appeals from the order dismissing his first petition filed pursuant to the Post Conviction Relief Act (PCRA). Upon review, we vacate the order and remand for further proceedings.
On August 4, 2021, Appellant pled guilty to criminal trespass, resisting arrest, and possession of drug paraphernalia. That day, the trial court sentenced Appellant to an aggregate 6 to 23½ months in jail, followed by two years of probation. Appellant did not appeal.
18 Pa.C.S.A. § 3503(a)(1)(ii), 5104; 35 P.S. § 780-113(a)(32). During the plea proceedings, Appellant was represented by Assistant Public Defender Marissa Stewart, Esquire (trial counsel).
On February 16, 2023, Appellant filed a pro se PCRA petition. Appellant raised several claims of trial counsel's ineffectiveness. The PCRA court did not appoint counsel for Appellant. On March 7, 2023, the PCRA court issued Pa.R.Crim.P. 907 notice of intent to dismiss Appellant's petition without a hearing. The PCRA court determined it lacked jurisdiction because Appellant failed to file his petition before the expiration of the PCRA's one-year jurisdictional time bar, and no time-bar exceptions applied. See generally Rule 907 Notice, 3/7/23. Appellant did not file a response. On March 24, 2023, Appellant filed a pro se notice of appeal from the Rule 907 Notice.
Appellant filed his notice of appeal in the Pennsylvania Commonwealth Court, which transferred the appeal to this Court.
On March 30, 2023, the PCRA court entered an order dismissing Appellant's pro se PCRA petition. Thereafter, on April 12, 2023, the PCRA court appointed counsel for Appellant (PCRA counsel). PCRA counsel filed a motion for reconsideration of the order dismissing Appellant's PCRA petition. PCRA counsel claimed the PCRA court "improperly dismissed [Appellant's] PCRA [p]etition due to the fact that the [c]ourt was unaware [Appellant] had filed a response [to the Rule 907 Notice] within the prescribed twenty (20) day period." Motion for Reconsideration, 4/25/23, ¶ 5. The PCRA court denied the motion for reconsideration on May 12, 2023.
With the benefit of PCRA counsel on appeal, Appellant presents three issues for review:
1. Whether the [c]ourt erred in entering the March 7, 2023, Order notifying [Appellant] of its intent to dismiss his pro se PCRA Petition without appointing counsel to represent [Appellant] in this first PCRA Petition[?]
2. Whether the [c]ourt erred in entering the March 7, 2023, Order notifying [Appellant] of its intent to dismiss his pro se PCRA Petition on the basis that the petition was untimely under the one (1) year time limitation of the PCRA's jurisdictional requirement (42 Pa.C.S. § 9545) given the fact that [Appellant] had properly ple[]d an exception to the time requirement (namely the interference of governmental officials and the discovery of facts that were unknown to [Appellant] at the time of his conviction), and that the court did not schedule a hearing to determine the merits of whether an exception was valid[?]
3. Whether the [c]ourt erred in entering the March 7, 2023, Order notifying [Appellant] of its intent to dismiss his pro se PCRA Petition even though [Appellant] had ple[]d in his pro se PCRA Petition that his guilty plea was not knowingly, intelligently and voluntarily made due to the ineffective assistance of counsel of his trial counsel … in failing to investigate the underlying facts of the case to determine that the purported property owner named in the Criminal Complaint (Roy Allen St. Clair) was not the owner of the property, and thus could not testify that [Appellant] had no permission to be on the subject property; and due to the false statements of Pennsylvania State Trooper Casey Rebosky made in the Affidavit of Probable Cause in support of the Criminal Complaint against [Appellant?]Appellant's Brief at 7-8 (footnote citations to legal authority omitted).
The Commonwealth has not filed a brief.
We recognize that Appellant prematurely filed his pro se notice of appeal from the PCRA court's Rule 907 Notice, rather than the March 30, 2023 order dismissing the PCRA petition. Nonetheless, we have jurisdiction. See Pa.R.A.P. 905(a)(5) ("A notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof"); Commonwealth v. Swartzfager, 59 A.3d 616, 618 n.3 (Pa. Super. 2012) (accepting premature notice of appeal filed after the entry of a Rule 907 notice but before the entry of a final order dismissing a PCRA petition).
The PCRA court states that it "lack[ed] jurisdiction based on [Appellant's premature] notice of appeal." PCRA Court Opinion, 5/19/23, at 2.
Further, we review the dismissal of a PCRA petition to determine whether the record supports the PCRA court's findings and whether its order is free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).
Appellant claims the PCRA court erred in dismissing his pro se PCRA petition without appointing counsel. See Appellant's Brief at 12-15; see also id. at 14 (emphasizing the PCRA court "did not appoint [PCRA] counsel … until April 14, 2023 (almost 6 weeks after the [Rule 907 N]otice)"). We agree.
Appellant also states that he "petitioned for counsel but am requesting [counsel] again because I am unable to pay …." PCRA Petition, 2/16/23, at 3 (unpaginated).
Pennsylvania Rule of Criminal Procedure 904 provides that
when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant's first petition for post-conviction collateral relief.Pa.R.Crim.P. 904(C) (emphasis added); see also Commonwealth v. Henkel, 90 A.3d 16, 22-23 (Pa. Super. 2014) (en banc) (applying Rule 904(C) and collecting cases). Under Rule 904(C), an "indigent petitioner's right to counsel must be honored regardless of the merits of his underlying claims … so long as the petition in question is his first." Commonwealth v. Kelsey, 206 A.3d 1135, 1139 (Pa. Super. 2019) (citations omitted). Where a PCRA petitioner's right to counsel
has been effectively denied by the action of court or counsel, the petitioner is entitled to a remand to the PCRA court for appointment of counsel to prosecute the PCRA petition. The remand serves to give the petitioner the benefit of competent counsel at each stage of post-conviction review.Commonwealth v. Kenney, 732 A.2d 1161, 1164 (Pa. 1999) (citations omitted).
Based on the foregoing, we vacate the order dismissing Appellant's first PCRA petition and remand for further proceedings. Kelsey, supra; Kenney, supra. On remand, PCRA counsel (or newly-appointed counsel if necessary) shall file an amended PCRA petition, rely on Appellant's pro se petition, or submit a "no-merit" letter consistent with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The PCRA court may issue notice in accordance with Rule 907 or schedule an evidentiary hearing.
PCRA counsel states, "this matter must be remanded … [and PCRA] counsel needs to continue to represent [Appellant] so that an additional appointment of counsel is not necessary on remand." Appellant's Brief at 15.
Order vacated. Case remanded for proceedings consistent with this memorandum. Jurisdiction relinquished.