J-S45013-17

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*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

DONALD ANTHONY SINGLETARY

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2805 EDA 2016

Appeal from the PCRA Order July 20, 2016

In the Court of Common Pleas of Chester County 

Criminal Division at No(s): CP-15-CR-0001630-2013, 

CP-15-CR-0001778-2013

BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 17, 2017

Appellant, Donald Anthony Singletary, appeals from the order of the 

Chester County Court of Common Pleas, which dismissed as untimely his 

first petition brought pursuant to the Post Conviction Relief Act (“PCRA”).

1

 

We vacate, remand, and grant counsel’s petition to withdraw.

The relevant facts and procedural history of this case are as follows. 

Appellant sold cocaine to a confidential informant on April 4, 2013, April 13, 

2013, and April 22, 2013. As a result, police arrested Appellant on April 26, 

2013. That same date, police executed a search warrant at Appellant’s 

home and recovered, inter alia, 7.95 grams of cocaine and four handguns. 

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1 42 Pa.C.S.A. §§ 9541-9546. 
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Appellant entered an open guilty plea on January 10, 2014, to one count of 

possession with intent to deliver (“PWID”) at docket no. 1630-2013, and to 

three counts of PWID at docket no. 1778-2013. The court sentenced 

Appellant on June 23, 2014, to an aggregate term of eight (8) to sixteen 

(16) years’ imprisonment. Appellant did not seek direct review, and his 

judgment of sentence became final on July 23, 2014. 

Appellant filed on November 18, 2015, a pro se “Motion to Modify and 

Reduce Sentence Nunc Pro Tunc,” which the court correctly treated as 

Appellant’s first PCRA petition. The PCRA court on December 17, 2015, 

permitted Appellant to proceed in forma pauperis and appointed counsel. 

On May 9, 2016, Appellant filed an amended, counseled PCRA petition, 

which requested an evidentiary hearing. In the amended petition, Appellant 

claimed that: plea counsel was ineffective for failing to file a post-sentence 

motion and a direct appeal; and Appellant received an illegal mandatory 

minimum sentence under Alleyne v. United States, ___ U.S. ___, 133 

S.Ct. 2151, 186 L.Ed.2d 314 (2013). Notably, the amended petition did not 

address the timeliness of Appellant’s PCRA petition. Moreover, counsel did 

not file a supporting brief, cite any law in support of the issues raised, or 

provide signed certifications of witnesses or attach documents material to 

the proffered testimony. See 42 Pa.C.S.A. § 9545(d)(1) (stating “Where a 

petitioner requests an evidentiary hearing, the petition shall include a signed 

certification as to each intended witness stating the witness’s name, 
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address, date of birth and substance of testimony and shall include any 

documents material to that witness’s testimony”). The Commonwealth filed 

its answer on June 13, 2016. On June 16, 2016, the PCRA court issued 

notice of its intent to dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 

907. Counsel received the Rule 907 notice but did not respond on 

Appellant’s behalf. The PCRA court denied relief on July 20, 2016. 

On August 26, 2016, Appellant filed a pro se notice of appeal.2 That 

same date, Appellant filed pro se petitions for reconsideration and/or writ of 

habeas corpus, to continue in forma pauperis, and for appointment of new 

PCRA counsel. In his petition for reconsideration and/or writ of habeas 

corpus, Appellant alleged PCRA counsel deprived Appellant of his right to 

effective, adequate representation. According to Appellant, counsel did not 

provide Appellant with a copy of the amended PCRA petition and the 

Commonwealth’s answer. Appellant asked the PCRA court to direct counsel 

to serve Appellant with a copy of these documents and to issue another Rule 

907 notice to Appellant. The PCRA court forwarded the notice of appeal and 

the petitions to counsel on August 29, 2016. On August 30, 2016, the PCRA 

court granted Appellant’s request to continue in forma pauperis and denied 

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2 Appellant’s pro se notice of appeal is dated August 19, 2016. Under the 

prisoner mailbox rule, we deem the appeal timely. See Commonwealth v. 

Chambers, 35 A.3d 34 (Pa.Super. 2011), appeal denied, 616 Pa. 625, 46 

A.3d 715 (2012) (explaining prisoner mailbox rule provides that document is 

considered filed on date pro se prisoner delivers it to prison authorities for 

mailing). 
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his remaining petitions. That same date, the PCRA court ordered Appellant 

to file a concise statement of errors complained of on appeal per Pa.R.A.P. 

1925(b). The PCRA court sent the order to counsel, who did not file a 

concise statement on Appellant’s behalf. 

On March 16, 2017, counsel filed with this Court an appellate brief and 

concluded Appellant’s PCRA issues were meritless. Appellant responded pro 

se on April 7, 2017. This Court entered a per curiam order on April 21, 

2017, directing counsel to file a petition to withdraw from representation 

pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) 

and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). 

Counsel complied on May 5, 2017, and sent a letter to Appellant on June 1, 

2017, advising of his right to proceed pro se or with privately retained 

counsel. 

Counsel raises the following issues on Appellant’s behalf: 

WHETHER THE [PCRA] COURT ERRED IN DISMISSING 

[APPELLANT’S] POST-CONVICTION RELIEF ACT (PCRA) 

PETITION WHEN IT WAS UNTIMELY FILED AND NO 

EXCEPTION APPLIED?

WHETHER [APPELLANT] IS PRECLUDED FROM RAISING AN 

ALLEYNE CHALLENGE RETROACTIVELY IN THE 

PROCEDURAL POSTURE OF A PCRA CLAIM?

(Appellant’s Brief at 3). 

As a preliminary matter, Pennsylvania Rule of Criminal Procedure 904 

provides, in pertinent part:

Rule 904. Entry of Appearance and Appointment of 
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Counsel; In Forma Pauperis

* * *

(C) Except as provided in paragraph (H), when 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 post-conviction 

collateral relief. 

* * *

Pa.R.Crim.P. 904(C). Importantly, “[a]n indigent petitioner is entitled to 

appointment of counsel on his first PCRA petition, even where the petition 

appears untimely on its face.” Commonwealth v. Perez, 799 A.2d 848, 

851 (Pa.Super. 2002) (emphasis added). “In such cases, counsel is 

appointed principally to determine whether the petition is indeed untimely, 

and if so, whether any exception to the timeliness requirements...applies.” 

Id. at 852. See also Pa.R.Crim.P. 904(C) (stating when unrepresented 

defendant shows he is unable to afford or procure counsel, court shall 

appoint counsel to represent defendant on first PCRA petition). The right to 

counsel on an indigent petitioner’s first PCRA petition is not limited to the 

mere naming of an attorney. Perez, supra. To have any meaning, Rule 

904 requires appointed counsel to provide meaningful representation. Id. 

[W]hen appointed counsel fails to amend an inarticulately 

drafted pro se [post-conviction] petition, or fails 

otherwise to participate meaningfully, this [C]ourt will 

conclude that the proceedings were, for all practical 

purposes, uncounseled and in violation of the 

representation requirement. 
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Id. at 852 (emphasis added). “[T]o provide meaningful representation, 

appointed counsel must at least address the timeliness of a PCRA petition 

and determine whether the petition fits any exception to the PCRA’s 

timeliness provision, where the subject petition is untimely on its face.” Id.

at 849. Counsel’s failure to discuss the timeliness issue renders the 

representation virtually meaningless and effectively denies an appellant the 

right to assistance of counsel. Id. at 853. Where the record fails to 

demonstrate “meaningful participation by counsel appointed to represent an 

indigent petitioner filing his first petition, [this Court] will remand for 

appointment of new counsel.” Id. at 582, (quoting Commonwealth v. 

Hampton, 718 A.2d 1250, 1254 (Pa.Super. 1998)). Additionally, “where an 

indigent, first-time PCRA petitioner was denied his right to counsel...this 

Court is required to raise this error sua sponte and remand for the PCRA 

court to correct that mistake. Commonwealth v. Stossel, 17 A.3d 1286, 

1290 (Pa.Super. 2011). Moreover, this Court has stated:

This right to representation exists throughout the postconviction proceedings, including any appeal from 

disposition of the petition for post-conviction relief. It is 

equally clear that once counsel has entered an appearance 

on [an appellant’s] behalf [she] is obligated to continue 

representation until the case is concluded or [she] is 

granted leave by the court to withdraw [her] appearance. 

Commonwealth v. Willis, 29 A.3d 393, 397 (Pa.Super. 2011). See 

Commonwealth v. Brown, 836 A.2d 997, 999 (Pa.Super. 2003) 

(remanding for appointment of counsel where petitioner was represented by 
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court-appointed attorney before PCRA court but was effectively abandoned 

by counsel on appeal). 

Instantly, the court sentenced Appellant on June 23, 2014. Appellant’s 

judgment of sentence became final on July 23, 2014, upon expiration of the 

time to file a direct appeal. See Pa.R.A.P. 903(a). Appellant filed a pro se

PCRA petition on November 18, 2015, which was about one year and four 

months after his judgment of sentence became final. Therefore, Appellant’s 

petition was facially untimely. See 42 Pa.C.S.A. § 9545(b)(1) (stating PCRA 

petition, including second or subsequent petition, shall be filed within one 

year of date underlying judgment of sentence becomes final). 

On December 17, 2015, the PCRA court permitted Appellant to 

proceed in forma pauperis and appointed counsel, who subsequently filed an 

amended PCRA petition on May 9, 2016. Significantly, the amended PCRA 

petition failed to address the timeliness of Appellant’s November 18, 2015 

petition and the application of any of the statutory timeliness exceptions at 

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). The amended petition also failed to 

comply with 42 Pa.C.S.A. § 9545(d)(1). The PCRA court sent counsel Rule 

907 notice on June 16, 2016. Counsel did not respond to the Rule 907 

notice and/or correct these defects. Thus, the record fails to demonstrate 

counsel’s meaningful participation. See Perez, supra. 

Moreover, counsel had a continuing obligation to represent Appellant 

until the conclusion of this case. See Willis, supra. Notably, counsel did 
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not file an appeal on Appellant’s behalf, which prompted Appellant to file a 

pro se notice of appeal on August 19, 2016. The PCRA court on August 30, 

2016, ordered a Rule 1925(b) statement and sent the order to counsel; yet 

she failed to file a Rule 1925(b) statement on Appellant’s behalf. The record 

reveals counsel effectively abandoned Appellant on appeal. Therefore, the 

best resolution of this case is to vacate and remand for the PCRA court to 

appoint new counsel to assist Appellant in his first PCRA petition. See 

Brown, supra. Given the disposition of this case and our directive to 

appoint new counsel on remand, we grant current counsel leave to 

withdraw. 

Order vacated; case remanded for further proceedings. Petition to 

withdraw as counsel is granted. Jurisdiction is relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/17/2017