Com. v. Karanicolas

• Decision Date: 12 November 2003
• Citation: 836 A.2d 940
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Georgios KARANICOLAS, Appellant.
• Court: Pennsylvania Superior Court

836 A.2d 940

COMMONWEALTH of Pennsylvania, Appellee, v. Georgios KARANICOLAS, Appellant.

Superior Court of Pennsylvania.

Submitted June 30, 2003.

Filed November 12, 2003.

Dean E. Reynosa, York, for appellant.

Sandra I. Thompson, Asst. Dist. Atty., York, for Com., appellee.

Before: TODD, KELLY, JJ. and McEWEN, P.J.E.

KELLY, J.

¶ 1 Appellant, Georgios Karanicolas, appeals the order entered in the York County Court of Common Pleas, denying his petition for relief under the Post Conviction Relief Act.¹ Appellant asks us to determine, inter alia, whether his present PCRA petition was timely filed. We hold that the present PCRA should be considered Appellant's first for timeliness purposes, where his earlier PCRA petition served only to reinstate Appellant's rights to a direct appeal with this Court nunc pro tunc. We also hold that Appellant was effectively deprived of his right to counsel on appeal from his first PCRA petition. Accordingly, we remand this matter to the PCRA court for further proceedings consistent with this opinion.

¶ 2 The relevant facts and procedural history of this case are as follows. Appellant was arrested on drug charges stemming from the possession and sale of cocaine on several separate incidents in 1997. The Commonwealth charged Appellant with one count of delivery of cocaine² at docket number 1992 C.A.1998, one count of possession with intent to deliver cocaine³ at 4830 C.A.1997, one count of delivery of cocaine at 1227 C.A.1998, one count of delivery of cocaine at 1228 C.A.1998, one count of possession with intent to deliver cocaine at 1229 C.A.1998, and one count of possession with intent to deliver cocaine at 1230 C.A.1998. All charges were consolidated for a jury trial that occurred on September 3-4, 1998. The jury returned a verdict of guilty on every count except the possession with intent to deliver charge at 1229 C.A.1998. The jury found Appellant guilty of simple possession of cocaine with respect to that incident. The court subsequently sentenced Appellant to an aggregate term of sixteen (16) to thirty-two (32) years' incarceration.

¶ 3 Appellant filed a timely notice of appeal on November 13, 1998. However, this Court dismissed the appeal on April 26, 1999 because Appellant's counsel failed to file an appellate brief. On April 28, 1999, Appellant promptly filed a pro se motion for reinstatement of his direct appeal rights nunc pro tunc. The trial court treated Appellant's motion as a PCRA petition and appointed counsel to represent Appellant. Appellant's right to file a direct appeal nunc pro tunc was then reinstated on May 19, 2000.

¶ 4 On June 29, 2001, this Court affirmed Appellant's judgment of sentence on all counts except those at docket numbers 1229 C.A.1998 and 1292 C.A.1998. This Court vacated Appellant's conviction at 1229 C.A.1998 and remanded for a new trial.⁴ This Court affirmed Appellant's judgment of sentence on the possession with intent to deliver charge at 1292 C.A. 1998, but remanded for an evidentiary hearing on trial counsel's ineffectiveness for failing to call an alibi witness at trial.⁵ Appellant did not seek allowance of appeal from the Pennsylvania Supreme Court regarding the remaining convictions.

¶ 5 On July 5, 2002, Appellant filed the present PCRA petition. The PCRA court appointed counsel to represent Appellant on July 15, 2002. Following a hearing on September 9, 2002, the PCRA court addressed the issues raised in Appellant's petition but ultimately dismissed Appellant's petition as untimely. Shortly after the hearing, Appellant's counsel resigned from the public defender's office. Appellant's pro se appeal followed on October 4, 2002. The court subsequently appointed new counsel to represent Appellant on his appeal. Appellant's new counsel filed with this Court a petition for leave to withdraw as counsel, pursuant to Turner/Finley,⁶ and a brief designated as an "Anders" brief.⁷

¶ 6 Appellant has raised the following issues for our review:

WHETHER THE PCRA COURT ERRED AS A MATTER OF LAW IN DISMISSING APPELLANT'S PCRA PETITION FILED ON JULY 5, 2002, AS HIS SECOND PCRA?

WHETHER THE PCRA COURT ERRED IN NOT FINDING TRIAL COUNSEL INEFFECTIVE FOR FAILING TO RAISE ISSUES OF

SENTENCING ENTRAPMENT AND TRIAL SEVERANCE?

(Appellant's Brief at 4).

¶ 7 Our standard of review of an order denying PCRA relief is limited to examining whether the evidence of record supports the PCRA court's determination and whether the ruling is free from legal error. Commonwealth v. Merritt, 827 A.2d 485, 486 (Pa.Super.2003). We will not disturb findings of the PCRA court that are supported by the certified record. Id.

¶ 8 Initially, we address whether Appellant's current PCRA petition was timely filed on July 5, 2002, because the timeliness of the petition goes directly to the jurisdiction of the court. Commonwealth v. Hutchins, 760 A.2d 50 (Pa.Super.2000). Section 9545 of the PCRA reads in pertinent part:

§ 9545. Jurisdiction and proceedings

* * *

(b) Time for filing petition.—

(1) Any petition under this subchapter, including second or subsequent petition, shall be filed within one year of the date the judgment becomes final....

* * *

(3) For purposes of this subchapter, a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.

42 Pa.C.S.A. § 9545(b). When this Court affirms a judgment of sentence, the judgment becomes final thirty days later for purposes of Section 9545 if the defendant does not seek allowance of appeal with the Pennsylvania Supreme Court. Hutchins, supra.

¶ 9 When a petitioner is granted a direct appeal nunc pro tunc in his first PCRA petition, a subsequent PCRA petition is considered a first PCRA petition for timeliness purposes. Commonwealth v. Lewis, 718 A.2d 1262 (Pa.Super.1998), appeal denied, 558 Pa. 629, 737 A.2d 1224 (1999). Lewis involved a defendant ("Lewis") who did not appeal his judgment of sentence following his murder conviction. On February 2, 1988, Lewis filed a petition under the Post Conviction Hearing Act⁸ ("PCHA"), the precursor to the PCRA, seeking reinstatement of his right to a direct appeal nunc pro tunc. Id. at 1263. On April 30, 1991, the trial court granted Lewis the right to file a notice of appeal with this Court, which he did. Id. This Court affirmed Lewis' judgment of sentence on February 12, 1993, and Lewis took no further appeal. Id.

¶ 10 Some three years later, on July 17, 1996, Lewis filed a petition seeking relief under the PCRA. The trial court dismissed the petition, and on appeal this Court was asked to determine whether Lewis' petition was untimely under Section 9545(b) as amended, effective January 16, 1996. Id. This Court held that Lewis' 1988 petition for post conviction relief was not a "prior PCRA petition" for purposes of Section 9545(b), because the 1988 petition merely resulted in the reinstatement of a direct appeal nunc pro tunc. Id. This Court reasoned: "We reach this conclusion because Mr. Lewis' PCHA petition did not result in his receiving post-conviction relief per se; rather, it resulted in his receiving the right to directly appeal his judgment of sentence nunc pro tunc. This is a significant distinction." Id. Therefore, this Court deemed Lewis' 1996 petition for post conviction relief as his first PCRA petition, and concluded it was timely under Section 9545(b). Id. at 1264.

¶ 11 The present case presents a situation analogous to Lewis, supra. On April 26, 1999, this Court dismissed Appellant's direct appeal because his counsel failed to file an appellate brief. Appellant did not petition for allowance of appeal with our Supreme Court. Instead, Appellant promptly filed a PCRA petition on April 28, 1999, seeking reinstatement of his direct appeal rights nunc pro tunc. The PCRA court appointed counsel and ultimately reinstated Appellant's rights to a direct appeal nunc pro tunc on May 19, 2000, due to prior counsel's unexcused failure to file an appellate brief.

¶ 12 As in Lewis, here Appellant's initial PCRA petition served only to reinstate his rights to a direct appeal nunc pro tunc; it did not grant him PCRA relief per se. See Lewis, supra. See also Commonwealth v. Dehart, 730 A.2d 991, 993 n. 2 (Pa.Super.1999), appeal denied, 560 Pa. 719, 745 A.2d 1218 (1999) (citing Lewis but refusing to "reset" date used to determine finality of judgment because relief granted in first petition was PCRA relief per se). Once Appellant had permission to and filed his direct appeal nunc pro tunc with this Court, his judgment of sentence was not final for purposes of Section 9545(b). Therefore, Appellant's subsequent July 5, 2002 PCRA petition should have been considered his first petition for timeliness purposes. See Lewis, supra. Appellant's judgment did not become final until July 29, 2001, thirty days after this Court affirmed Appellant's judgment of sentence on June 29, 2001, and upon the expiration of time to seek further review. See Hutchins, supra. Thus, Appellant's July 5, 2002 PCRA petition was timely filed within one year after his judgment of sentence became final on July 29, 2001. See Lewis, supra; 42 Pa.C.S.A. § 9545(b). Therefore, the trial court erred when it dismissed Appellant's present PCRA petition as untimely, either by failing to recognize that it was Appellant's first PCRA petition for timeliness purposes or by neglecting to consider that the one year filing deadline of Section 9545(b) does not begin to run until after the expiration of the time for seeking discretionary review. See id.; Hutchins, supra; Lewis, supra.

¶ 13 Counsel's representation on this appeal and his request to withdraw his representation bring us to the next matter in which we consider whether Appellant was effectively deprived of his right to counsel on his appeal from the denial of his first PCRA petition. Commonwealth v....