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

v.

TODD MEQUIM ANDERSON

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 808 WDA 2019 Appeal from the Order Entered April 3 , 2019 In the Court of Common Pleas of Clearfield County Criminal Division at

No(s): CP

- 17

- CR

- 0000802

- 2017

BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J. MEMORANDUM BY McCAFFERY, J.: FILED MARCH 10, 2020 Todd Mequim Anderson (Appellant) appeals, pro se , from the order 1 entered in the Clearfield County Court of Common Pleas granting the petition to withdraw filed by Appellant’s post

- conviction counsel. Bec ause we conclude the order on appeal is interlocutory, we quash this appeal. On December 7, 2017, Appellant entered an open guilty plea to four counts of possession with intent to deliver controlled substances (cocaine), 2
and related offenses. On March 5 , 2018, the trial court sentenced him to an aggregate term of eight to 16 years’ imprisonment. Appellant did not file a direct appeal.

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1 We have amended the caption to reflect that the notice of appeal was filed from the PCRA court’s April 3, 2019, Order. See Notice of Appeal, 5/31/19.

2 35 P.S. § 780

- 113(a)(3 0 ).J

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Rather, o n July 25, 2018, Appellant filed a timely pro se petition pursuant to the Po st Conviction Relief Act (PCRA), 3 raising numerous allegations concerning the ineffective assistance of plea counsel. Counsel was appointed, and on February 28, 2019, filed a petition to withdraw and
Turner / Finley

4 no - merit letter. By order entered April 3, 2019, the PCRA court granted counsel’s petition to withdraw

. Thereafter, on April 17, 2019, Appellant filed a pro se objection to the April 3 rd order, challenging the propriety of counsel’s no

- merit letter, as well
as the PCRA court’s failure to issue notice of its intent to dismis s the petition pursuant to Pa.R.Crim.P. 907. The PCRA court then issued Rule 907 notice on April 25, 2019. However, b efore the PCRA court entered an order dismissing Appellant’s petition, Appellant filed a notice of appeal from the April 3, 2019,
order. 5 Subsequently, on September 11, 2019, the PCRA court entered an

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3 42 Pa.C.S. §§ 95 41

- 9546.

4 Commonwealth v. Turner , 544 A.2d 927 ( Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 ( Pa. Super. 1988) ( en banc ).

5 We note the notice of appeal was docketed on May 31, 2019, more than 30 days after entry of the court’s April 3 rd order. Docket No. CP

- 17

- CR

- 0000802

- 2017, 5/31/19. See Pa.R.A.P. 903 (a) (notice of appeal must be filed within 30 days after entry of order on appeal). However, the certified record includes a letter from the Deputy Prothonotary of Clearfield Co unty to this Court, which stated that , when the notice of appeal was first received in the PCRA court, Appellant did not include the filing fee or request permission to proceed in forma pauperis (IFP). See Letter, 11/8/19. The Clearfield County Deputy Prothonotar y a ttached a copy of a letter the PCRA court sent to Appellant notifying him that it could not process his notice of appeal “received . . . onJ

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order dismissing Appellant’s PCRA petition. 6 On appeal, Appellant challenges both the dismissal of the claims raised in his PCRA petition, as well as the PCRA court’s grant of counsel’s pe tition to
withdraw. However, because Appellant filed an appeal prematurely from an interlocutory order, we are constrained to quash this appe al. See
Commonwealth v. Tchirkow , 160 A.3d 798, 803 (Pa. Super. 2017) (appellate court can consider appealabilty of order sua sponte because it “directly implicates the jurisdiction of the court”) (citation omitted).
T he Pennsylvania Rules of Appellate Procedure provide, in relevant part : [A]n appeal may be taken from: (1) a final order or an order certified as a final order (Pa.R.A.P. 341); (2) an interlocutory order as of right (Pa.R.A.P. 311); (3) an interlocutory order by permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4) a collateral order (Pa.R.A.P. 313). Tchirkow , 160 A.3d at 803 (citation omitt ed).

_________________ __________ ______ ____ _______ May 1, 2019” until he paid the required fee or submitted IFP paperwork. Letter from Clearfield Coun ty to Appella nt, 5/6/19.
It is well

- established that “ [t]he clerk of courts . . . lacks the authority to reject, as defec tive, a timely notice of appeal.” Commonwealth v. Williams , 106 A.3d 583, 588 ( Pa. 2014) . Indeed, Pennsylvania Rule of Appellate Procedure 905 p rovides that “[u]pon receipt of the notice of appeal the clerk shall immediately stamp it with the date of receipt, and that date shall constitute the date when the appeal was taken [

. ] ” Pa.R.A.P. 905(a)(3). Therefore, in the present case, we conclude App ellant filed a timely notice of appeal on May 1, 2019, from the court’s April 3, 2019, order.

6 The docket indicates the September 11, 2019, order was “misplaced.” Docket No. CP

- 17

- CR

- 0000802

- 2017, at 9/11/19. Thus, a substitute order was entered on November 7, 2019.J

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Here, Appellant filed a notice of appeal from the PCRA court’s April 3, 2019, order which granted counsel’ s petition to withdraw. Clearly, that order
is not a final order since , at the time it was filed, Appellant’s PCRA petition
was still outstandin g. S ee Pa.R.A.P. 341 (b) (final order is any order that: “disposes of all claim and of all parties” or in entered as final order under subsection (c)). Furthermore, the April 3 rd order is not an interlocutory order which may be appealed as of right pursua nt to Pa.R.A.P. 311 , or one from which this Court granted permission to appeal pursuan t to Pa.R.A.P. 312 and
1311

. Thus, Appellant may proceed with this appeal only if we determine the PCRA court’s April 3 rd order was a collateral order. Pursuant to Rule 313, an aggrieved party may file an appeal from a collateral order as of right. Pa.R.A.P. 313(a). The Rule defines a collateral order as: an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost. Pa.R.A.P. 313 (b). We conclude the PCRA court’s order granting counsel’s petition to withdraw is not an appealable collateral order. In Commonwealth v. Wells , 719 A.2d 729 (Pa. 1998), the Pennsylvania Supreme Court held that an order denying PCRA counsel’s request to withdr aw, based on a purported conflict of interest, did not qualify as a immediately appealable collateral order because the claim would not be irreparably lost if denied review. The CourtJ

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opined: Appellant’ s claim that he is entitled to “conflict

- free” PCRA c ounsel will not be irreparably lost if the order denying the Petition to Withdraw is not reviewed at this time. Since Appellant has a right of appeal if the PCRA court denies his petition, the order denying the Petition to Withdraw, and consequently the m erits of the conflict issue, can be reviewed if or when Appellan t files an appeal from the court’ s PCRA decision. If it is determined that the PCRA court improperly failed to remove PCRA counsel due to a conflict of interest, any right to conflict

- free PC RA counsel is not lost since the defendant may be granted a n ew PCRA hearing and new counsel. Thus, since Appellant’ s claimed right would not be irreparably lost if review of the order were postponed until final judgment, the court’ s order denying the Pet ition to Withdraw is not appealable unde r the collateral order doctrine. Id. at 731 (footnotes omitted). Although Wells reviewed an order denying counsel’s petition to withdraw, the same analysis applies to an order granting counsel’s petition
to withdr aw. Accordingly, we are constrained to quash this appeal. Furthermore, w e note that after Appellant filed the not ice of appeal from the April 3 rd order, the PCRA court entered an order dismissing Appellant’s petition. 7 However, the PCRA court had no jurisdiction to enter that order once Appellant filed a notice of appeal. Pursuant to Pennsylvania Rule of Appellate Procedure 1701, “after an appeal is taken . . . the [PCRA] court . . . may no longer proceed further in the matter.” Pa.R.A.P. 1701(a).

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7 As noted supra , the PCRA court initially entered dismissal order on September 11, 2019, but later entered a substitute order on November 7, 2019, when the September order was misplaced. In either case, any appeal filed by Appellan t now would be outside the 30

- day appeal period. See Pa.R.A.P. 903.J

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Accordingly, because we conclude the order on appeal is interlocutory and unappealable, we quash this appeal. Moreover, we vacate the court’s September 11, 2019, and November 7, 2019, orders purporting to dismiss Appellant’s PCRA pe tition. Upon remand, we direct the PCRA court to reissue Appellant Rule 907 notice of its intent to dismiss the PCRA petition, so that Appellant may have the opportunity to file a timely response. Appeal quashed. Case remanded for pr oceedings consiste nt with this

m emorandum. Jurisdiction relinquished

. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/10/2020