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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. DAVID BOWENS, Appellant No. 718 EDA 201 8

Appeal from the PCRA Order Entered June 6 , 201 7 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

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BEFORE: BENDER, P.J.E., BOWES , J., and NICHOLS , J. MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 1 5 , 2019 Appellant, David Bowens, appeals pro se from the post

- conviction court’s June 6, 2017 order , which appears to dismiss , as untimely, his April 27, 2015 petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541

- 9546. We vacate the PCRA court’s order and remand for further proceedings. On January 17, 2012, Appellant was sentenced to an aggregate term of
271⁄2

- 55 years’ imprisonment, imposed after he entered into a negotiate d guilty plea to third degree murder, 18 Pa.C.S. § 2502(c), and other related offenses. He did not file a timely post

- sentence motion or a direct appeal. The docket , in fact, shows that Appellant took no further action until January 15, 2014, when he fi led , pro se , a “Motion for Modification of Sentence
Nunc Pro Tunc .” Therein, he set forth various reasons supporting his requestJ

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f or modification, including , inter alia , that his sentence constitutes double jeopardy, he did not receive a “ fair assessment ” by the court, and his trial counsel was ineffective because counsel did not file a direct appeal, should

“ have requested a merger [] , ” and did not argue diminished capacity. See Motion for Modification of Sentence Nunc Pro Tunc , 1/15/2014, at 1

- 3 (unneces sary capitalization omitted)

. Based on the docket, it appears that this motion went unacknowledged and unaddressed by the court below

. On A pril 27, 2015, Appellant filed, pro se , a PCRA petition, in which he raised a myriad of claims, including, among other things, that his sentence was unconstitutional, he was “spoofed” by his trial counsel to plead guilty, his counsel

— “under false pretense”

— failed to file an appeal, and his convictions should have merged for sentencing purposes

. See PCRA Petitio n, 4/27/2015, at 3. Moreover, in that petition, he point ed out that his January 15, 2014 motion for modification of sentence remain ed pending, and he requested that the court appoint a lawyer to represent him. Id. at 4, 7. Nearly nine months later, on January 29, 2016, David S. Rudenstein, Esq., entered his appearance on the docket. Over a year after that

— on February 23, 2017

— Attorney Rudenstein filed a Turner/Finley 1 no - merit letter and a motion to withdraw. Therein, Attorney Rudenstein examined the issues presented in Appellant’s April 27, 2015 PCRA petition, concluded that none have arguable merit , and represented that he could not find any issue

_________________ __________ ______ ____ _______ 1 Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ).J

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of arg uable merit that c ould form the basis for PCRA relief after independently reviewing the record

. See No

- Merit Letter, 2/23/2017, at 5

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. In addition, Attorney Rudenstein stated in his no

- merit letter: Counsel has inspected [Appellant’s] other filing which was his [m]otion for [r]econsideration of [s]entence, filed nunc pro tunc on January 15, 2014 . This counsel does not believe that the [m]otion should be deemed to be a PCRA filing. However, and even if it was so considered to be such a filing, [Appellant] did not file that until January 15, 2014, and hence,

... even if a PCRA filing, it would stil l be out of time and there would be no exceptions. Id. at 3

- 4. Attorney Rudenstein did not explain why Appellant’s January 15, 2014 motion for modification of sentence should not be construed as a PCRA petition , nor did he specifically list and examine the issues Appellant raised in
it. On March 22, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s PCRA petition without a hearing. It briefly stated the reason for dismissal as: “Your attorney has determined that the issues raised in your pro se [PCRA] petition are without merit. Counsel’s letter pursuant to

... [ Turner/ ] Finley ... is attached.” Pa.R.Crim.P. 907 Notice, 3/22/2017, at 1 (unnumbered pages). 2 On March 28, 2017, Appellant filed a motion requesting that he receive an extension of time to respond to the Rule 907 notice and Attorney

_________________ __________ ______ ____ _______ 2 We remind the PCRA court that, when considering if counsel has satisfied the requirements to be permitted to withdraw, it “must conduct its own independent evaluation of the record and agree with counsel that the petition is without merit.” Commonwealth v. Freeland , 106 A.3d 768, 774 (Pa. Super. 2014) (citations omitted).J

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Rudenstein’s no

- merit letter . He alleged that he had not yet received the no

merit letter nor his file, despite purportedly request ing them from Attorney Rudenstein for months

. See Appellant’s Letter, 3/28/2017. He specifically asked the PCRA court for an extension of 30 days from his receipt of the no

merit letter to respond to the Rule 907 notice

. See id. On April 26, 2017, the PCRA court granted Appellant’s request for an extension of time. It ordered Appellant to file a response within 25 days, i.e. , by May 22, 2017. The record does not indicate that Appellant did so. Thereafter, on June 6, 2017, the PCRA court dismissed Appell ant’s PCRA
p etition. It did not provide its reas ons for doing so in its order. Instead, it merely set forth, “AND NOW, this 6th day of June, 2017, after consideration of the Motion to Dismiss PCRA by the Commonwealth[,] it is ORDERED that the Motion to D ismiss PCRA is GRANTED.” PCRA Order, 6/6/2017, at 1 (single page). However, our review of the record does not show that the Commonwealth filed a motion to dismiss. The order , moreover, state d that the PCRA court served it on Attorney Rudenstein, among others , and that “907
Notice was sent

. ” Id. Yet , the order

— and the corresponding docket entry

— d id not demonstrate that the PCRA court served the order on Appellant. Over eight months later, on February 15, 2018, Appellant filed a pro se notice of a ppeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). In his Rule 19 25(b) statement, Appellant averred , inter alia , that:J

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4. [T]his appeal should not be denied. The fact is that [Appellant] never received a final order from the court. [Appellant] sent to the [c]ourt a communication requesting information regarding this matter. One docket sheet was provided by this [c]ourt [on] 11/6/17, in which [Appellant] then found out that his PCRA [petition] was denied. 5. A request was forwarded to [s]ecurity of this facility who handles all legal mail and found out that he never received legal mail in the month of June

... 2018. Pa.R.A.P. 1925(b), 2/15/2018, at 1 (unnumbered, single page; unnecessary capitalization omitted). On April 2, 2018, the PCRA court issued a Rule 1925(a) opinion . In that opinion, it summarized the procedural history of this case as follows : On January 15, 2014, Appellant filed a pro se Motion for Modification of Sentence Nunc Pro Tunc

. 1 Subsequent thereto, on April 27, 2015, Appellant filed a pro se PCRA petition. Counsel was appointed to represent him and on February 23, 2017, counsel filed a no

- merit letter pursuant to [ Turner/Finley ] and a motion to withdraw as counsel.

1 Under the law [,] this filing constituted a PCRA petition because the law provides that any document filed after the judgment of sentence becomes final must be treated as a petition for post

- conviction relief, regardless of how a petitioner or counsel titles his fili ng. See Commonwealth v. Kubis , 808 A.2d 196, 199 (Pa. Super. 2002) (explaining that the PCRA is the sole means for obtaining collateral review and any petition filed after judgment of sentence is final is treated as a PCRA petition). Here[,] because Appe llant did not file a post

- sentence motion or a direct appeal within the time constraints set by law, his conviction became final thirty days after January 17, 2012, the date [his] sentence was imposed, which for purposes of appeal is considered a final ord er. See 42 Pa.C.S. § 9545(b) and Pa.R.A.P. 903(a) (indicating that an appeal must be filed within thirty days of the date of the order being appealed from is filed). After carefully reviewing the record and Appellant’s various filings, this [c]ourt determ ined that Appellant’s filings were untimely andJ

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that this [c]ourt lacked jurisdiction to address Appellant’s various claims. Thus, on March 22, 2017, this [c]ourt sent Appellant [Rule] 907 notice advising him that his petition was going to be dismissed. He filed responses thereto and after this [c]ourt reviewed them along with the remainder of the case, on June 6, 2017, this [c]ourt carefully reviewed the matter after which it issued an order denying Appellant PCRA relief. On February 15, 2018, Appellant filed a pro se [n]otice of [a]ppeal and a pro se [Rule] 1925(b) statement wherein he states, inter alia , that he never received a copy of the order dismissing his PCRA petition and first learned that it had been dismissed on November 6, 2017. He offered no explanation as to why he waited three plus months to file his notice of appeal after learning that his PCRA petiti on had been dismissed and this [c] ourt takes no position concerning the timeliness of his notice of appeal in light of the fact that the qu estion of the timeliness of Appellant’s filing of his [n]otice of [a]ppeal is for the Superior Court to decide. PCRA Court Opinion (PCO) , 4/2/2018, at 2

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. After summarizing this case’s procedural history, t he PCRA court explained that it lacked jurisdict ion to address the claims Appellant raised in both his January 15, 2014 motion for modification and April 27, 2015 PCRA petition due to Appellant’s failure to meet the PCRA’s timeliness requirements

. See PCO at 4

- 5. Preliminarily, w h ile we recognize th at Appellant’s February 15, 2018 notice of appeal from the PCRA court’s June 6, 2017 order was untimely , we conclude a breakdown in the operations of the court occurred and decline to quash this appeal

. See Commonwealth v. Patterson , 940 A.2d 493, 498 (Pa . Super. 2007) (“Generally, an appellate court cannot extend the time for filing an appeal. Nonetheless, this general rule does not affect the power of the court s to grant relief in the case of fraud or breakdown in the processes of the court.”) (citation s omitted); Commonwealth v. Liebensperger , 904J

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A.2d 40, 44 (Pa. Super. 2006) ( entertaining an untimely appeal and observing that “ [t] his Court has refrained from quashing an appeal as untimely where the trial court failed to properly advise the ap pellant o f his appellate rights ”) (citation omitted)

. 3 Looking now to the merits of Appellant’s appeal, w e have several concerns about the way in which the PCRA proceedings unfolded below

. Initially , the record is unclear as to whether the PCRA court denied Appellant’s January 15, 2014 motion for modification and his April 27, 2015 PCRA petition.
T roublingly, t he PCRA court made no mention of Appellant’s January 15, 2014 motion until its Rule 1925(a) opinion. 4 The PCRA court’s June 6, 2017 order did not convey that it was denying both Appellant’s January 15, 2014 motion for modification and his April 27, 2015 PCRA petition. Additionally , i n its Rule 907 notice, the PCRA court stated that it was dismissing Appellant’s PCRA

_________________ __________ ______ ____ _______ 3 We note that this Court issued a rule to show cause why Appellant’s appeal should not be quashed as untimely filed. See Pa.R.A.P. 903(a) (requiring that a notice of appeal be filed within 30 days after the entry of the order from which the appeal is taken). Appellant filed a pro se res ponse, in which he asserted that he never received the PCRA court’s June 6, 2017 order. See Response to Rule to Show Cause, 6/6/2018, at ¶ 2.

4 The rein, the PCRA court explained that it viewed Appellant’s January 15, 2014 motion as a PCRA petition

. See PCO at 2 n.1 . It then analyzed its timeliness under the PCRA, and asked us to affirm its dismissal. Id. at 5

. Nevertheless, the PCRA court had failed to appoint counsel to represent Appellant for this petition and allowed it to linger outstanding for y ears. See Pa.R.Crim.P. 904(c) (“[W] hen 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 pos t

- conviction collateral relief. ”).J

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peti tion because of Attorney Rudenstein’s no - merit letter , which only focused

on the claims raised in Appellant’s April 27, 2015 PCRA petition. See Pa.R.Crim.P. 907 Notice at 1 (unnumbered pages); No

- Merit Letter at 4 , 5

- 8. 5 To add to the confusion , the Comm onwealth seems to overlook Appellant’s April 27, 2015 PCRA petition completely, omitting it entirely from its statement of the case. Commonwealth’s Brief at 2. 6 We are unsure if this omission is an oversight, or if the Commonwealth thinks th e April 27, 2015 PCRA petition

wa s an amendment to Appellant’s January 15, 2014 motion , rather than a separate filing

. Thus , given these diverging positions and the lack of clarity

_________________ __________ ______ ____ _______ 5 We reiterate that Attorney Rudenstein did not believe that the January 15, 2014 motion for modification “should be deemed to be a PCRA filing [,]” although he provide d no rationale for that assertion. See No

- Merit Let ter at 4. We note that “[i]t is well

- settled that the PCRA is intended to be the sole means of achieving post

- conviction relief. ... [A]n untimely post

- sentence motion filed after finality of judgment is to be treated as a PCRA petition.” Commonwealth v. Taylor , 65 A.3d 462, 465, 467 (Pa. Super. 2013) (citation omitted)

.
6 The Commonwealth states the history of the case as follows: On January 15, 2014, [Appellant] filed a pro se Motion for Modification of Sentence Nunc Pro Tunc , which the PCRA court tre ated as a PCRA petition. On February 23, 2017, appointed counsel filed a letter pursuant to [ Turner/Finley ], concluding that [Appellant’s] petition was untimely, that there was no applicable exception to the jurisdictional time

- bar, and his substantive cl aims were otherwise meritless. On June 6, 2017, the PCRA court dismissed [Appellant’s] petition as untimely. [Appellant] appeals. Commonwealth’s Brief at 2.J

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in the record, it must be ascertained exactly which filing ( s ) the PCRA court is

curren tly disposing of and its basis for doing so. Furthermore , it appears that the PCRA court neglected to rule on Attorney Rudenstein’s no

- merit letter and motion to withd raw. Accordingly , Attorney Rudenstein still repr esents Appellant, and Appellant shoul d not be proceeding pro se on appeal. We also observe that, to the extent the PCRA
court mistakenly believed that it had permitted Attorney Rudenstein to withdraw, it did not properly notify Appellant that it dismissed his PCRA petition on June 6, 2017

. 7 Given the se multiple errors and ambiguities, we vacate the PCRA court’s June 6, 2017 order and remand this matter for the PCRA court to address these unresolved issues

. Order vacated. Case remanded. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/15/19

_________________ __________ ______ ____ _______ 7 See Pa.R.Crim.P. 907(4) (“ When the petition is dismissed without a hearing, the judge prom ptly shall issue an order to that effect and shall advise the defendant by certified mail, return receipt requested, of the right to appeal from the final order disposing of the petition and of the time limits within which the appeal must be filed. The or der shall be filed and served as provided in Rule 114. ”).