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[U] Commonwealth v. Rivera

Superior Court of Pennsylvania

February 20, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
MARCELO RIVERA Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order May 6, 2013 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0001443-2007, CP-38-CR-0001446-2007, CP-38-CR-0001447-2007, CP-38-CR-0001520-2007

BEFORE: MUNDY, J., WECHT, J., and FITZGERALD, J. [*]

MEMORANDUM

BY MUNDY, J

Appellant, Marcelo Rivera, appeals from the May 6, 2013 order denying his second petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Contemporaneously with this appeal, counsel has requested leave to withdraw in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny.[1] After careful review, we affirm and grant counsel's petition to withdraw.

A prior panel of this Court summarized the relevant facts and procedural history of this case as follows.

On March 27, 2008, Appellant pled guilty to various drug offenses under four docket numbers. On May 21, 2008, the court sentenced Appellant to an aggregate term of twelve to twenty-six years' imprisonment. He did not file a direct appeal. Appellant filed a timely pro se PCRA petition on November 11, 2008. The PCRA court returned this petition with the direction that he provide more facts. On December 18, 2008, Appellant filed a pro se amended PCRA, which was dismissed without a hearing on March 2, 2009. The following day, the court appointed counsel. Appellant then filed a pro se notice of appeal on March 13, 2009, which he requested to withdraw three days later. Counsel for Appellant filed a formal request to withdraw his notice of appeal on June 3, 2009.
On December 23, 2009, Appellant filed a counseled motion to reinstate his appellate rights from the denial of his first PCRA petition.2 The PCRA court denied the motion, but on appeal, this Court found the PCRA court erred in not providing Appellant with counsel for his first pro se PCRA petition. This Court remanded the case for counsel to amend Appellant's first PCRA petition.
Appellant's amended PCRA petition, filed on November 15, 2010, claimed ineffective assistance of counsel for failure to provide an interpreter at the guilty plea hearing, and for failure to advise him of the outcomes and penalties in pleading guilty. A hearing was held on February 25, 2011, at which the PCRA court heard testimony from both Appellant and trial counsel. The court dismissed the petition and Appellant filed a timely notice of appeal on March 8, 2011.
2 Counsel claimed that she did not receive notice of the March 2, 2009 dismissal of Appellant's first PCRA petition and therefore inadvertently missed the filing deadline for an appeal. Appellant's Brief at 5-6.

Commonwealth v. Rivera, 37 A.3d 1230 (Pa. Super. 2011) (unpublished memorandum) (footnote in original). Subsequently, this Court affirmed the PCRA court's dismissal of Appellant's PCRA petition. Id.

On January 13, 2012, Appellant filed the instant PCRA petition, and a hearing was held on November 19, 2012. On April 17, 2013, the PCRA court provided Appellant with notice of its intent to dismiss Appellant's petition pursuant to Pa.R.Crim.P. 907. Thereafter, on May 6, 2013, Appellant filed a pro se response to the PCRA court's notice. On the same date, the PCRA court denied Appellant's PCRA petition by order and opinion. On May 7, 2013, Appellant filed a timely notice of appeal. [2]

Subsequently on August 20, 2013, David Warner, Jr., Esquire (Attorney Warner) filed a petition to withdraw. On September 17, 2013, Appellant filed a pro se motion "to allow for pro-se submission on the merits, due to withdrawal of counsel." By per curiam order, this Court allowed Appellant until October 24, 2013 to file a pro se brief, cautioning that "[f]ailure to file a brief within the given time period may be considered a waiver ...


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