from the PCRA Order February 26, 2018 In the Court of Common
Pleas of Philadelphia County Criminal Division at No(s):
BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.
T. Wooden (Appellant) appeals pro se from the order
dismissing his first petition filed pursuant to the Post
Conviction Relief Act (PCRA). Consistent with the requests of
both the PCRA court and the Commonwealth, we vacate the order
because the PCRA court did not provide Appellant with notice
pursuant to Pennsylvania Rule of Criminal Procedure 907.
Accordingly, we remand for further proceedings.
April 14, 2008, Appellant pled guilty to attempted rape and
robbery.On October 2, 2008, the trial court
determined that Appellant was a sexually violent predator and
sentenced him to two terms of 10 to 20 years of imprisonment,
to run consecutively, for an aggregate term of 20 to 40 years
of imprisonment. The court imposed both sentences "under
second strike provisions." Order, 10/2/08. Appellant took a
direct appeal, and this Court affirmed his judgment of
sentence. Commonwealth v. Wooden, 428 EDA 2011 (Pa.
Super. Nov. 4, 2011) (unpublished). Appellant did not seek
allowance of appeal with the Pennsylvania Supreme Court.
November 1, 2012, Appellant timely filed the underlying PCRA
petition pro se, claiming ineffective assistance of
counsel and challenging his "second strike"
sentence on the basis that he had not been previously
convicted of a "crime of violence" as prescribed by
42 Pa.C.S.A. § 9714(a)(1). The trial court docket
indicates that during the pendency of the petition, Appellant
has been represented by three different
attorneys. Beginning in February of 2017, the docket
entries reference Appellant's third lawyer, Attorney
September 12, 2017, nearly five years after
Appellant filed his pro se petition, Attorney Weaver
filed an amended petition on Appellant's behalf,
reiterating Appellant's pro se claims of
ineffective assistance of counsel and an illegal
"second-strike" sentence. This was the last filing
by Attorney Weaver, and approximately eight months later, on
May 14, 2018, Appellant appears on the record pro
se, having filed an inmate document request, and at the
same time, a pro se notice of appeal to the PCRA
court's February 26, 2018 order dismissing the petition.
The trial docket and record do not indicate that Attorney
Weaver was granted leave to withdraw from representation.
However, we take judicial notice that as of this writing, the
Disciplinary Board of the Supreme Court of Pennsylvania has
placed Attorney Weaver on administrative suspension.
Disciplinary Board of Supreme Court of Pennsylvania,
attorney/attorney-detail/55184 (last visited June 26, 2019).
February 22, 2018, the Commonwealth filed a motion to dismiss
Appellant's PCRA petition. Also on that date, according to
the PCRA court, the case was reassigned from Judge Trent to
Judge Brinkley. PCRA Court Opinion, 12/19/18, at 1.
Nevertheless, four days later, on February 26, 2018, Judge
Trent entered the underlying order dismissing the PCRA
petition without a hearing. More than 30 days later, on May
14, 2018, Appellant filed the aforementioned pro se
notice of appeal and inmate document request. On May
17th, Appellant filed a pro se
"attachment," averring that no Pa.R.Crim.P. 907
notice was provided to him or Attorney Weaver prior to the
dismissal of his petition. On June 4, 2018, Appellant filed a
motion for appointment of counsel. On December 19, 2018, the
PCRA court filed its opinion. The docket does not indicate
any further response by the PCRA court regarding
Appellant's representation - or lack of representation.
Appellant has filed a pro se brief with this Court.
raises seven issues on appeal. See Appellant's
Brief at 2-3. In his first issue, Appellant asserts that the
PCRA court "erred and abused its discretion by
dismissing Appellant's petition without notice contrary
to statute (42 Pa.R.Crim.P § 907) . . . ."
Id. at 2. This issue has merit. However, we first
recognize that the timeliness of Appellant's notice of
appeal implicates this Court's jurisdiction. See
Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super.
2011). Here, Appellant's PCRA petition was dismissed on
February 26, 2018. Appellant then had 30 days, or until March
28, 2018, to file a notice of appeal. See Pa.R.A.P.
903(a) (notice of appeal shall be filed within 30 days after
entry of the order from which appeal is taken). The pro
se notice of appeal was not filed until May 11, 2018.
2, 2018, this Court issued a per curiam rule to show
cause to Appellant as to why the appeal should not be quashed
as untimely. Appellant filed a pro se response,
averring that neither the PCRA court nor his attorney
notified him of the February 26, 2018 dismissal, and he
"didn't know that his PCRA was denied on 2/26/18,
until May 2018 when he received his dkt. entry report, and
when he found out he immediately filed a notice of appeal
nunc pro tunc . . . ." Appellant's Response,
7/12/18, at 1. Appellant also averred that he should not be
penalized because his attorney abandoned him. Id. at
2. This Court deferred ruling to the merits panel. Order,
we note that although Attorney Weaver has remained as counsel
of record, it was proper for both the trial court clerk and
this Court's Prothonotary to docket Appellant's
pro se notice of appeal. See Pa.R.Crim.P.
576(A)(4) (if a represented criminal defendant submits for
filing a written notice that has not been signed his
attorney, the clerk of courts shall accept it for filing, and
a copy of the time-stamped document shall be forwarded to the
defendant's attorney and the Commonwealth within 10
days); Superior Ct. O.P. § 65.24 (pro se notice
of appeal received from trial court shall be docketed, even
where appellant is represented by counsel);
Commonwealth v. Williams, 151 A.3d 621, 623
(Pa. Super. 2016) (although hybrid representation is not
permitted, a notice of appeal protects a constitutional right
and is distinguishable from other filings that require
counsel to provide legal knowledge and strategy, and thus
this Court is required to docket a pro se
notice of appeal despite appellant being represented by
upon careful review, the record appears to support
Appellant's claim regarding the abandonment of counsel,
whose last documented action of record was the filing of
Appellant's amended PCRA petition on September 12, 2017.
Our Supreme Court, with respect to the role of appointed
counsel in PCRA proceedings, has stated:
As part of the PCRA process, indigent petitioners may apply
for the assistance of counsel for purposes of their first
PCRA petition. We have held this rule to be
absolute inasmuch as we have concluded that a
petitioner need not establish that his petition is timely
before he or she is entitled to the appointment of counsel.
See, e.g., Commonwealth v. Smith,818 A.2d 494
([Pa.] 2003). To this end, it can be assumed that the
PCRA court will appoint appropriate counsel, i.e.,
counsel that can and will raise potentially meritorious
claims. In this same vein, while the performance of PCRA
counsel is not necessarily scrutinized under the Sixth
Amendment, the performance of counsel must comply with
some minimum norms, which would include not abandoning a
client for purposes of appeal. See ...