J-S36018-15, J-S36019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. MELISSA A. SARVEY Appellant No. 1529 WDA 2014

Appeal from the PCRA Order August 20, 2014 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000014-2012

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. MELISSA A. CIELESKI Appellant No. 1530 WDA 2014

Appeal from the PCRA Order August 20, 2014 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000605-2007

BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J. * MEMORANDUM BY JENKINS, J.: FILED JULY 8, 2015 Appellant Melissa A. Sarvey appeals from the order of the Jefferson County Court of Common Pleas dismissing her petitio n filed pursuant to the

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* Retired Senior Judge assigned to the Superior Cour t.J-S36018-15, J-S36019-15

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Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9 541 et seq ., which she entitled a “motion to reinstate defendant’s rights under the [PCRA] nunc pro tunc” (“reinstatement PCRA petition”). We reverse and remand to the PCRA court for proceedings consistent with this memorand um. While incarcerated at the Jefferson County Correcti onal Facility, Appellant attempted to deliver prescription drugs t o another inmate. Commonwealth v. Sarvey , 968 WDA 2013, at 2 (Pa.Super. filed Feb. 21, 2013) (unpublished memorandum). A jury found Appel lant guilty at CP-33- CR-0000014-2012 of two counts each of possession of a controlled substance with intent to deliver (“PWID”), 1 possession of a controlled substance by an inmate, 2 selling, giving, transmitting or furnishing a controlled substance to a confined person, 3 and criminal attempt. 4 Id. On May 16, 2012, the trial court imposed consecutiv e sentences of 1-3 years’ incarceration for one PWID conviction and 11⁄2 to 3 years’ incarceration for the second PWID conviction, 11⁄2 to 3 years’ incarceration for each possession of a controlled substance by an inmate conviction, and 2-5 years’ incarceration for each furnishing of a c ontrolled substance to a

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1 35 P.S. § 780-113(a)(30).

2 18 Pa.C.S. § 5123(a.2).

3 18 Pa.C.S. § 5123(a).

4 18 Pa.C.S. § 901.J-S36018-15, J-S36019-15

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confined person conviction. The court did not impos e a sentence for the criminal attempt convictions. Sarvey , 968 WDA 2013, at 4. At the time of the offenses, Appellant was serving a term of proba tion at CP-33-CR0000605-2007. As a result of Appellant’s convictio n, the court further revoked probation and imposed a sentence of 1-2 yea rs’ imprisonment at each of two counts. N.T., 5/16/2012, at 14-15. Th is was an aggregate term of imprisonment of 111⁄2 to 26 years’ imprisonment. Id. at 15. 5 This Court affirmed on February 21, 2013. Id. Appellant filed a petition for allowance of appeal, which the Supreme Court of Pennsylvania denied on September 17, 2013. On January 8, 2014, Appellant filed a pro se PCRA petition at both CP33-CR-0000014-2012 and CP-33-CR-0000605-2007. The PCRA court appointed counsel, who filed a no-merit letter on F ebruary 14, 2014. The trial court issued a notice of intent to dismiss th e PCRA petition without a hearing pursuant to Pennsylvania Rule of Criminal P rocedure 907, which was dated February 20, 2014 and docketed on February 24 , 2014. This notice of intent stated:

On the basis of the allegations asserted in Attorne y George N. Daghir’s No-Merit Letter, filed February 14, 201 4, you, the Defendant/Petitioner, are hereby notified that your

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5 The trial court also revoked probation in addition al cases that Appellant does not challenge on appeal. The court imposed 5 years’ probation on these cases consecutive to Appellant’s aggregate te rm of imprisonment but concurrent with one another. N.T., 5/16/2012, at 1 5.J-S36018-15, J-S36019-15

- 4 - Post Conviction Pleadings filed January 8, 2014, sh all be dismissed twenty (20) days from the date of this Notice/Order. You should be aware, that the Order dismissing these filings will be a Final Order. Acc ordingly, after that Order is filed, you have a right to appe al to the Pennsylvania Superior Court by filing a Notice of A ppeal with the Jefferson County Clerk of Courts within th irty (30) days after the entry of the Order dismissing your P ost Conviction Pleadings and other filings. See PA R.C R.P. No. 907. Order, 2/24/2014. A separate order, also dated Feb ruary 20, 2014 and docketed on February 24, 2014, stated:

AND NOW, this 20th day of February, 2014, upon consideration of Petition to Withdraw as Counsel (N o-Merit) filed by Specially Appointed Public Defender, Georg e N. Daghir, Esq., and after this Court’s own independen t review, it is hereby determined that Defendant/Peti tioner Melissa Sarvey’s issues raised in her previously fi led PostConviction Pleadings are meritless. It is further ordered that George N. Daghir, Esq.’s , Petition to withdraw as Counsel for Defendant/Petitioner Mel issa Sarvey is hereby granted. Defendant/Petitioner Mel issa Sarvey shall be served with a copy of the within Or der. Melissa Sarvey is hereby notified that she has the right to proceed with her Post-Conviction Pleadings Pro Se, or, with the assistance of privately retained counsel. With in the next twenty (20) days, Melissa Sarvey will notify t he Court whether she wishes to proceed on her Post-Convictio n Pleadings. Failure to inform the Court that the Defendant/Petitioner, Melissa Sarvey, wishes to pro ceed on her Post-Conviction Pleadings will result in the m being dismissed. Order, 2/24/2014.J-S36018-15, J-S36019-15

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In response to these orders, Appellant filed a let ter with the trial court, which was dated March 1, 2014 and docketed March 5, 2014. The letter provided:

I am writing in reference to the above listed docke t numbers regarding an Order of Court by the Honorabl e President Judge John H. Foradora, dated [February] 20, 2014. Please accept this letter as my interest to continu e with my Post Conviction Pleadings Pro Se. I will retain cou nsel to proceed on my behalf in the matter of the Post Conv iction Pleadings. Thank you for your time and consideration in this m atter. Letter from Melissa Sarvey to “To Whom It May Conce rn” dated March 1, 2014. In an order dated March 19, 2014 and docketed Marc h 24, 2014, the PCRA court dismissed the PCRA petition. The order provided:

AND NOW, this 19th day of March, 2014, upon consideration of the Petition to Dismiss PCRA 6 and subsequent letter from the defendant wherein she re quests to continue with this PCRA filed on March 5, 2014, IT IS HEREBY ORDERED AND DECREED that the defendant’s Post Conviction Pleadings and the defendant’s aforementioned subsequent letter are DISMISSED.

____________________________________________ 6 The certified record does not include a “petition to dismiss PCRA,” and the docket does not reflect the filing of such a petiti on.J-S36018-15, J-S36019-15

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Order, 3/24/2014. The docket states this order was served on Appellant “First Class.” Commonwealth v. Sarvey , No. CP-33-CR-0000014-2012, Docket at 15 of 22 (Pa.C.P. Jefferson Mar. 24, 2014 ). On August 18, 2014, Appellant’s retained counsel f iled the reinstatement PCRA petition at both docket numbers seeking to reinstate Appellants’ PCRA rights nunc pro tunc. 7 In an order dated August 20, 2014 and docketed August 22, 2014, the PCRA court denied this petition. On September 17, 2014, Appellant filed two timely noti ces of appeal at 1529 WDA 2014 and 1530 WDA 2014. We consolidate these a ppeals pursuant to Pennsylvania Rule of Appellate Procedure Pa.R.A.P. 513. Both Appellant and the PCRA court complied with Pennsylvania Rule of Appellate Procedure 1925. Appellant raises the following issues on appeal:

ISSUE I: Did the lower court err in failing to rei nstate [Appellant’s] PCRA rights Nunc Pro Tunc when [Appel lant] notified the Court within 20 days that she intended to proceed with private counsel? ISSUE II: Did the lower court err in failing to reinstate [Appellant’s] PCRA rights Nunc Pro Tunc when [Appel lant] was not properly notified that her PCRA petition wa s

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7 On July 18, 2014, Appellant filed a second pro se PCRA petition at docket CP-33-CR-0000014-2012 only. On August 8, 2014, the PCRA court issued a notice of intention to dismiss the second PCRA peti tion and, on September 4, 2014, it dismissed the petition. As with the order dismissing Appellant’s first PCRA, the order dismissing Appellant’s second PCRA did not include a recitation of appellate rights and was served via f irst class mail, not certified mail.J-S36018-15, J-S36019-15

- 7 - dismissed because she was not served by certified m ail, as Required by Pa. R.Crim.P. 907? ISSUE III: Should [Appellant’s] PCRA rights be rein stated due to a breakdown in the Court system? Appellant’s Brief at 7. We will address Appellant’ s issues together, as they are interrelated. Appellant maintains the PCRA cou rt erred in failing to reinstate Appellant’s PCRA rights nunc pro tunc. W e agree. Appellant’s “motion to reinstate defendant’s rights under the [PCRA] nunc pro tunc” should be treated as a PCRA petition

. See Commonwealth v. Robinson , 837 A.2d 1157 (Pa.2003) (treating PCRA petition s eeking reinstatement of PCRA appeal rights as a PCRA petit ion); Commonwealth v. Weimer , 756 A.2d 684, 686 (Pa.Super.2000) (treating appel lant’s motions, including motion to reinstate appeal right s, as PCRA petition). Our standard of review from the denial of post-convicti on relief “is limited to examining whether the court’s determination is supp orted by the evidence of record and whether it is free of legal error.” Commonwealth v. Ousley , 21 A.3d 1238, 1242 (Pa.Super.2011) (citing Commonwealth v. Morales , 701 A.2d 516, 520 (Pa.1997)). 8

____________________________________________ 8 Appellant timely filed her reinstatement PCRA peti tion. Appellant’s judgment became final December 16, 2013, 90 days af ter the Supreme Court of Pennsylvania denied her petition for allow ance of appeal on September 17, 2013. Appellant filed the reinstatem ent PCRA petition on August 18, 2014, before the one-year PCRA time bar expired on December 13, 2014. 42 Pa.C.S. § 9545(b)(1) (PCRA petition, “including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final”).J-S36018-15, J-S36019-15

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Pennsylvania Rule of Criminal Procedure 907 provid es:

(1) the judge shall promptly review the petition, a ny answer by the attorney for the Commonwealth, and ot her matters of record relating to the defendant's claim (s). If the judge is satisfied from this review that there are no genuine issues concerning any material fact and tha t the defendant is not entitled to post-conviction collat eral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the par ties of the intention to dismiss the petition and shall sta te in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice. The judge thereafter shall orde r the petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue.

. . . (4) When the petition is dismissed without a hearin g, the judge promptly shall issue an order to that effect and shall advise the defendant by certified mail, return rece ipt requested, of the right to appeal from the final or der disposing of the petition and of the time limits wi thin which the appeal must be filed. The order shall be filed and served as provided in Rule 114.

. . . Pa.R.Crim.P. 907. Here, the trial court provided notice of its inten t to dismiss the PCRA petition, notifying Appellant her PCRA petition wou ld be dismissed in 20 days. Notice, 2/24/2014. That same day, the PCRA court granted PCRA counsel’s petition to withdraw and ordered Appellan t “to notify the Court whether she wishes to proceed on her Post-Convictio n Pleadings” within 20J-S36018-15, J-S36019-15

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days. 9 On March 5, 2014, in response to these orders, Ap pellant informed the court she wished to “continue with my Post Conv iction Pleadings Pro Se” and she would “retain counsel to proceed on my beha lf.” These orders misstated the action required by Appe llant. The notice of intent informed Appellant the PCRA court would dism iss the PCRA in 20 days. The order granting counsel’s motion to withdr aw, however, required Appellant to inform the PCRA court whether she wish ed to continue with the appeal and stated that if Appellant failed to infor m the court whether she wished to continue, the PCRA petition would be dism issed. Appellant complied with the court order by informing the cour t, within 20 days, that she wished to continue the proceedings and that she would retain counsel. Nineteen days after Appellant’s letter was docketed , the PCRA court dismissed the PCRA petition, without further commun ication with Appellant. Further, the order dismissing Appellant’s PCRA peti tion did not inform Appellant of her appellate rights and was not serve d via certified mail. Pursuant to Rule 907, where a PCRA court dismisses a petition without a

____________________________________________ 9 Commonwealth v. Turner , 544 A.2d 927 (Pa.1988) and Commonwealth v. Finley , 550 A.2d 213 (Pa.Super.1987) provide a mechanism for post-conviction counsel to withdraw. Commonwealth v. Rykard , 55 A.3d 1177, 1184 (Pa.Super.2012). Competent PC RA counsel must conduct an independent review of the record be fore a PCRA or appellate court can authorize counsel’s withdrawal. Id. Further, “counsel is required to contemporaneously serve upon his client his no-merit letter and application to withdraw along with a statement that if the court granted counsel’s withdrawal request, the client may procee d pro se or with a privately retained attorney.” Id.J-S36018-15, J-S36019-15

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hearing, the judge “shall issue an order to that ef fect and shall advise the defendant by certified mail, return receipt request ed, 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.” Although the PCRA court recited Appellant’s appeal rights in its notice of intent t o dismiss, it failed to include notice of the appeal rights in the final order dism issing the petition. Further, the docket states that the court served the order d ismissing the PCRA petition on Appellant by “First Class,” not by the method required by Rule 907, “certified mail, return receipt requested.” Because the February 24, 2014 orders misstated what action was required from Appellant, and because the order dism issing the PCRA petition did not include a recitation of Appellant’s appeal rights and was not properly served on Appellant, we find the PCRA court erred i n denying the reinstatement PCRA petition. See Commonwealth v. Panto , 913 A.2d 292, 297 (Pa.Super.2006) (vacating judgment of sent ence following summary appeal where court administrator failed to send appellant notice of court order of continuance and court dismissed appe al because appellant failed to appear); Pa.R.Crim.P. 114(B)(2) (“The cle rk of courts shall serve the order or court notice, unless the president jud ge has promulgated a local rule designating service to be by the court or cour t administrator.”); Pa.R.A.P. 108 (“in computing any period of time und er these rules involving the date of entry of an order by a court or other g overnment unit, the day ofJ-S36018-15, J-S36019-15

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entry shall be the day the clerk of the court or th e office of the government unit mails or delivers copies of the order to the p arties, . . .”). We reverse the order denying Appellant’s “motion fo r reinstatement of appeal rights nunc pro tunc.” The PCRA court is di rected to order Appellant’s counsel to file an amended PCRA petition within thi rty (30) days of the date of this Memorandum. Order reversed. Case remanded for proceedings cons istent with this Memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/8/2015