J-S15031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MATHIS AVERY, SR.,

Appellant No. 1175 EDA 2015

Appeal from the PCRA Order April 14, 2015

in the Court of Common Pleas of Delaware County

Criminal Division at No.: CP-23-CR-0002446-2009

BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED MARCH 21, 2016

Appellant, Mathis Avery, Sr., appeals pro se from the order denying his 

third petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. §§ 9541-9546. We vacate and remand.

We take the following facts and procedural history from the PCRA 

court’s October 1, 2015 opinion and our independent review of the certified 

record. On November 2, 2011, a jury convicted Appellant of attempted 

murder, aggravated assault, and possessing an instrument of crime. On 

December 20, 2011, the court sentenced Appellant to an aggregate term of 

not less than 235 months nor more than 470 months’ incarceration, to be 

followed by five years’ probation. 

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* Retired Senior Judge assigned to the Superior Court.
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On August 20, 2012, the Superior Court affirmed Appellant’s judgment 

of sentence. (See Commonwealth v. Avery, 60 A.3d 575 (Pa. Super. filed 

Aug. 20, 2012) (unpublished memorandum)). Appellant did not petition for 

allowance of appeal with the Pennsylvania Supreme Court.

On February 19, 2013, and September 18, 2013, Appellant filed pro se

post-conviction petitions that he incorrectly titled as petitions for 

modification of sentence. The petitions challenged, inter alia, the legality of 

his sentence and counsel’s effectiveness, and alleged newly discovered 

evidence. The court did not appoint counsel or decide these motions 

because they were not forwarded to the judge’s chambers for disposition as 

mandated by Pennsylvania Rule of Criminal Procedure 903(A). (See PCRA 

Court Opinion, 10/01/15, at 3 n.3); see also Pa.R.Crim.P. 903(A) (“Upon 

receipt of a petition for post-conviction collateral relief, the clerk of courts 

promptly shall . . . transmit the petition . . . to the trial judge[.]”). 

On November 21, 2013, Appellant filed what was in fact his third PCRA 

petition pro se. Thereafter, the court appointed PCRA counsel, who filed a 

Turner/Finley1“no-merit” letter and requested leave to withdraw. On 

February 18, 2015, the court granted counsel’s petition to withdraw and 

served Appellant with notice of its intent to dismiss the PCRA petition. See

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1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth 

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Pa.R.Crim.P. 907(1). In response, Appellant filed a motion for 

reconsideration of his sentence on March 11, 2015. On April 14, 2015, the 

court denied Appellant’s PCRA petition. Appellant timely appealed the denial 

pro se.

2

However, we do not reach the issue of whether the court properly 

denied what was Appellant’s third PCRA petition, because we agree with the 

PCRA court that Appellant’s motions for reconsideration of sentence, which 

were filed after his judgment of sentence became final, and raised issues 

cognizable under the PCRA, should have been treated as PCRA petitions. 

(See PCRA Ct. Op., at 3 n.3); see also Commonwealth v. Kutnyak, 781 

A.2d 1259, 1261 (Pa. Super. 2001) (treating appellant’s motion as PCRA 

petition “regardless of the manner in which the petition is titled”) (citation 

omitted). 

It is well-settled that, “[g]enerally speaking, an indigent petitioner is 

entitled to the appointment of counsel on his first post-conviction attack of 

his conviction. This right to counsel, although not constitutionally mandated, 

derives from the Pennsylvania Rules of Criminal Procedure, see Pa.R.Crim.P. 

904(B)[.]” Commonwealth v. Stout, 978 A.2d 984, 988 (Pa. Super. 2009) 

(case citation omitted). 

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2 The PCRA court did not order Appellant to file a statement of errors 

complained of on appeal. See Pa.R.A.P. 1925(b). It filed an opinion on 

October 1, 2015. See Pa.R.A.P. 1925(a).
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Here, because Appellant’s timely post-conviction petitions were not 

forwarded to the trial judge for disposition in accordance with Pennsylvania 

Rule of Criminal Procedure 903(A), the court did not appoint counsel for 

Appellant’s first PCRA petition, in violation of Criminal Rule 904(B). See id. 

Additionally, it never ruled on the request for relief. As a result, Appellant 

was denied the opportunity to raise an appellate challenge of the PCRA 

court’s failure to appoint counsel. In other words, due to a breakdown of the 

court system, Appellant was denied both his right to counsel for his first 

PCRA petition, and the opportunity to challenge that issue on appeal.

Therefore, we are constrained to vacate the court’s order denying what 

was in fact Appellant’s third petition and remand for the appointment of 

counsel for Appellant’s timely first PCRA petition “pursuant to proper postconviction relief proceedings.” Id. (vacating order denying appellant’s 

improperly titled petition for writ of habeas corpus and remanding for 

appointment of PCRA counsel).

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/21/2016