J-S07007-22

2022 PA Super 53

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID RYAN BATES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 981 WDA 2021

Appeal from the PCRA Order Entered August 16, 2021

In the Court of Common Pleas of Erie County Criminal Division at No(s): 

CP-25-CR-0003421-2016

BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*

OPINION BY OLSON, J.: FILED: March 29, 2022

Appellant, David Ryan Bates, appeals pro se from the order entered on 

August 16, 2021, which dismissed his petition filed under the Post Conviction 

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We vacate the PCRA court’s 

order and remand.

On March 1, 2016, Appellant pleaded guilty to theft by unlawful taking 

at the discrete docket number of CP-25-CR-0002443-2015 (hereinafter 

“Docket Number 2443-2015”). As the PCRA court explained, “[o]n May 6, 

2016, [Appellant] was sentenced [at Docket Number 2443-2015] . . . to 30 

days to [six] months’ incarceration, followed by [two] years of supervised 

probation. . . . [Appellant] was paroled on May 18, 2016.” PCRA Court 

Opinion, 4/4/18, at 2. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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On November 28, 2016, the Commonwealth charged Appellant at the 

current docket number – docket number CP-25-CR-0003421-2016 

(hereinafter “Docket Number 3421-2016”) – with a number of crimes, 

including: possession of a controlled substance with the intent to deliver

(“PWID”), receiving stolen property, persons not to possess firearms, firearms 

not to be carried without a license, and possession of cocaine.

1

 As we 

explained:

At the first trial, the jury (1) found Appellant guilty of 

possession of a firearm prohibited, firearms not to be carried 

without a license, and possession of a controlled substance; 

(2) acquitted him of receiving stolen property; and (3) was 

unable to agree on a verdict as to PWID. On April 7, 2017, 

the trial court sentenced Appellant to concurrent sentences 

on his three convictions, yielding an aggregate term of five

to ten [years’] imprisonment.

A new jury trial was held on the PWID charge on June 22, 

2017, resulting in a conviction. On August 7, 2017, Appellant 

was sentenced on the PWID conviction to eighteen to 

thirty-six months incarceration, set to run consecutively to 

the five-to-ten-year sentence imposed on April 7, 2017.

Commonwealth v. Bates, 195 A.3d 1032 (Pa. Super. 2018) (unpublished 

memorandum) at 3 (footnote omitted).

Appellant filed a timely notice of appeal at Docket Number 3421-2016, 

where he challenged the sufficiency of the evidence supporting his convictions 

and claimed that his sentence was illegal. See id. at 4. On August 27, 2018, 

____________________________________________

1 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 3925(a), 18 Pa.C.S.A. 

§ 6105(a)(1), 18 Pa.C.S.A. § 6106(a)(1), and 35 P.S. § 780-113(a)(16), 

respectively.
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this Court held that Appellant’s sufficiency claims failed, but that his sentence 

was illegal because his simple possession conviction merged with his PWID 

conviction for sentencing purposes. Nevertheless, since the trial court ordered 

Appellant’s sentence for simple possession to run concurrently with his other 

sentences, we simply vacated Appellant’s sentence for simple possession and 

did not remand for resentencing, as our order did not upset the trial court’s 

sentencing scheme. Id. at 10-11; see also Commonwealth v. Robinson, 

817 A.2d 1153, 1163 n.14 (Pa. Super. 2003) (holding: “our disposition does 

not upset the [trial] court's sentencing scheme as the sentence we reverse 

here had been ordered to run concurrent to the sentence imposed on 

[another] conviction. Under these circumstances, there is no need to remand 

for resentencing”).

Appellant filed a timely petition for allowance of appeal at Docket 

Number 3421-2016 with our Supreme Court. The Supreme Court denied 

Appellant’s petition for allowance of appeal on March 13, 2019. See 

Commonwealth v. Bates, 204 A.3d 364 (Pa. 2019).

As the PCRA court explained:

As a result of [Appellant’s] charges at [Docket Number 

3421-2016], on April 7, 2017, [the trial court] revoked 

[Appellant’s] parole/probation at [Docket Number 

2443-2015] and re-sentenced him to [one to five] years’ 

incarceration. . . . This sentence was made consecutive to 

[Appellant’s] sentence at [Docket Number 3421-2016].” 

PCRA Court Opinion, 4/4/18, at 2-3.
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On February 16, 2018 – while Appellant’s direct appeal at Docket 

Number 3421-2016 was pending before this Court – Appellant filed a PCRA 

petition and claimed that “he was awarded an illegal sentence upon revocation 

because his revocation sentence was greater than his original sentence.” Id.

at 3. Appellant’s PCRA petition listed both Docket Number 2443-2015 and 

Docket Number 3421-2016 in the caption and the PCRA petition was filed at 

both docket numbers. See Appellant’s Supplement to Motion for PCRA Relief, 

3/27/18, at 1 (listing both docket numbers in the caption). Nevertheless, the

post-conviction claim and the PCRA petition pertained solely to Docket Number 

2443-2015, as that was the docket where the trial court “revoked [Appellant’s] 

parole/probation . . . and re-sentenced him to [one to five] years’ 

incarceration.” See PCRA Court Opinion, 4/4/18, at 2-3. Further, since 

Appellant’s direct appeal at Docket Number 3421-2016 was pending before 

this Court when Appellant filed his PCRA petition, the PCRA court lacked 

jurisdiction to consider any PCRA petition relating to Docket Number 

3421-2016 until the direct appeal at Docket Number 3421-2016 was resolved. 

See Commonwealth v. Leslie, 757 A.2d 984, 985 (Pa. Super. 2000) 

(holding: a “PCRA court [does] not have jurisdiction to proceed in [a PCRA] 

action while [an] appeal to the Superior Court [is] pending”); see also 

Commonwealth v. Smith, 244 A.3d 13, 16-17 (Pa. Super. 2020) (“[i]t is 

well-settled that a PCRA petition may only be filed after an appellant has 

waived or exhausted his direct appeal rights. Indeed, the PCRA provides 

petitioners with a means of collateral review, but has no applicability until the 
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judgment of sentence becomes final. Furthermore, this Court has explained: 

‘If a petition is filed while a direct appeal is pending, the PCRA court should 

dismiss it without prejudice towards the petitioner's right to file a petition once 

his direct appeal rights have been exhausted’”) (citations, corrections, and 

some quotation marks omitted). 

The PCRA court recognized that the petition related solely to Docket 

Number 2443-2015 and acknowledged that it did not have jurisdiction to 

consider any post-conviction collateral claims pertaining to Docket Number 

3421-2016, as Appellant’s direct appeal at that docket was still pending before 

the Superior Court. PCRA Court Opinion, 4/4/18, at 1 n.1 (the PCRA court 

declared: “[w]e note that [the] related [Docket Number 3421-2016], 

pertaining to drug and gun charges, is currently on appeal to the Pennsylvania

Superior Court. . . . As such, we are without jurisdiction to hear any 

substantive issues with regard to that docket. However, the judgment of 

sentence at [Docket Number 2443-2015], pertaining to retail theft charges 

and a revocation based on [new charges] . . . , has not been appealed”). The 

PCRA court eventually dismissed this PCRA petition on June 22, 2018. See 

PCRA Court Order, 6/22/18, at 1.

As noted above, on August 27, 2018, this Court affirmed in part and 

vacated in part Appellant’s judgment of sentence at Docket Number 

3421-2016. The Pennsylvania Supreme Court then denied Appellant’s petition 

for allowance of appeal on March 13, 2019. See Commonwealth v. Bates,

195 A.3d 1033 (Pa. Super. 2018), appeal denied, 204 A.3d 364 (Pa. 2019). 
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On February 21, 2020, Appellant filed a timely, pro se, first PCRA petition at 

Docket Number 3421-2016. Although this was Appellant’s first PCRA petition 

– and Appellant, thus, had a rule-based right to have counsel represent him 

during the PCRA proceedings2 – the PCRA court neither appointed counsel for 

Appellant nor held a hearing to determine whether Appellant wished to waive 

his right to counsel. See Pa.R.Crim.P. 904(C) (“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”); Commonwealth v. Stossel, 17 A.3d 1286 (Pa. Super. 2011) 

(“where an indigent, first-time PCRA petitioner was denied his right to counsel

– or failed to properly waive that right – this Court is required to raise this 

error sua sponte and remand for the PCRA court to correct that mistake”). 

Indeed, the PCRA court expressly refused to appoint counsel to represent 

Appellant during the proceedings because, it reasoned: “counsel was 

appointed to represent [Appellant] on his first PCRA [petition], filed on 

February 16, 2018. Counsel filed a supplement to the PCRA [petition] on 

March 27, 2018. [Appellant] is not entitled to have counsel appointed to him 

on subsequent PCRAs.” PCRA Court Opinion, 5/5/20. However, as was 

explained above, Appellant’s February 16, 2018 PCRA petition did not relate 

____________________________________________

2 Appellant has been indigent throughout all proceedings and, in his first PCRA 

petition, Appellant averred that he remained indigent. See Appellant’s First 

PCRA Petition, 2/21/20, at 8.
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to the current docket number. Instead, the earlier petition related solely to 

Docket Number 2443-2015.

On May 21, 2020, the PCRA court finally dismissed Appellant’s petition 

and Appellant filed a timely, pro se, notice of appeal. See PCRA Court Order, 

5/21/20, at 1; Notice of Appeal, 6/17/20, at 1.

Before this Court, Appellant twice requested that we appoint counsel to 

represent him on appeal and, twice, we erroneously denied his requests in per 

curiam orders. See Superior Court Order at 50 WDM 2020, 6/23/20, at 1

(“[a]s it appears that this is an appeal from [Appellant’s] second PCRA, his 

request for appointment of counsel is denied) (emphasis omitted); Superior 

Court Order at 654 WDA 2020, 7/13/20, at 1 (“[t]o the extent that Appellant 

seeks to have counsel appointed to him for the purpose of the appeal at 654 

WDA 2020, the application is denied as it appears that Appellant is not entitled 

to counsel as this is an appeal from his second or subsequent PCRA petition”)

(emphasis and some capitalization omitted). We then dismissed Appellant’s 

appeal on October 14, 2020 because Appellant failed to file a docketing 

statement. See Superior Court Order, 10/14/20, at 1.

Following the dismissal of Appellant’s appeal, Appellant filed, in this 

Court, a pro se application to reinstate his appeal. He requested that his 

appeal be reinstated because: “I was never granted representation on [the] 

above docket and [I am] also indigent.” Appellant’s Application to Reinstate 

Appeal, 1/11/21, at 1. We denied Appellant’s application on January 26, 2021. 

Superior Court Order, 1/26/21, at 1.
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On July 12, 2021, Appellant filed a pro se petition in the PCRA court,

entitled “Motion for Writ of Error Requesting Re-Appointment of Counsel – For 

PCRA Not Filed on Feb. 16, 2018 as Court Proclaims Which Docket Entries of 

Feb. 16, 2018 Proves” (hereinafter “Appellant’s Current PCRA Petition”).3 

Within this petition, Appellant requested that the PCRA court “reinstate his 

first PCRA [petition] under this docket and to appoint him counsel to review 

the claims he has raised and possibly submitting any required amendment 

thereto.” Appellant’s Current PCRA Petition, 7/12/21, at 2 (emphasis in 

original). The PCRA court believed that this petition constituted Appellant’s 

third PCRA petition and, thus, the PCRA court did not appoint counsel to 

represent Appellant. See PCRA Court’s Notice of Intent to Dismiss, 7/15/21, 

at 1. The PCRA court finally dismissed Appellant’s Current PCRA Petition on 

August 16, 2021 and Appellant filed a timely, pro se, notice of appeal. 

Appellant raises two claims to this Court:

1. Was the [PCRA] court in error to dismiss Appellant’s first 

PCRA [petition] filed under [Docket Number 3421-2016], 

when [Appellant] had informed the court that [Appellant] has 

never filed a PCRA [petition] directly under said docket . . . ?

____________________________________________

3 Regardless of the title, Appellant’s motion constitutes a petition under the 

PCRA. See, e.g., 42 Pa.C.S.A. § 9542 (the PCRA “is the sole means of 

obtaining collateral relief and encompasses all other common law and 

statutory remedies . . . including habeas corpus and coram nobis”); 

Commonwealth v. Pagan, 864 A.2d 1231, 1233 (Pa. Super. 2004) (“if the 

underlying substantive claim is one that could potentially be remedied under 

the PCRA, that claim is exclusive to the PCRA”) (emphasis in original).
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2. Is [Appellant] not thus entitled to file his “first” PCRA 

[petition] in reference to said docket, due to either the court’s 

clerk being in error to file both Appellant’s motion for 

reconsideration and PCRA [petition] directly under [Docket 

Number 2443-2015], or the court’s refusing to accept 

Appellant’s informing the court the docket entries clearly 

prove[] Appellant has never filed an actual PCRA [petition] in 

reference to [Docket Number 3421-2016], which the court 

never should have dismissed?

Appellant’s Pro Se Brief at 5.

“[I]t is undisputed that first time PCRA petitioners have a rule-based 

right to counsel.” Commonwealth v. Figueroa, 29 A.3d 1177, 1180 n.6 

(Pa. Super. 2011). This right to counsel “exists throughout the 

post-conviction proceedings, including any appeal from [the] disposition of the 

petition for post-conviction relief.” Commonwealth v. Quail, 729 A.2d 571, 

573 (Pa. Super. 1999) (internal citations and quotation marks omitted); see 

also Pa.R.Crim.P. 904(C).

Further, our Supreme Court has explained that “[t]he denial of PCRA 

relief cannot stand unless the petitioner was afforded the assistance of 

counsel.” Commonwealth v. Albrecht, 720 A.2d 693, 699 (Pa. 1998). In 

following, our Supreme Court has held: “if a court dismisses a pro se [PCRA] 

petition prior to the appointment of counsel, a subsequent counseled petition 

may not be treated as an untimely second petition.” Commonwealth v. 

Williams, 828 A.2d 981, 990 (Pa. 2003); see also Commonwealth v. 

Duffey, 713 A.2d 63 (Pa. 1998) (holding: “[t]he [PCRA] court erred when it 

declined to appoint counsel to assist [the petitioner] with the first PCRA 

Petition, and the court should have permitted [the petitioner] to litigate the 
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Amended PCRA Petition with the assistance of counsel. Accordingly, we hold 

that the [PCRA] court committed an error of law when it granted the motion 

to strike the Amended PCRA Petition. We must therefore remand this case to 

the trial court to consider [the petitioner’s] Amended PCRA Petition”);

Commonwealth v. Tedford, 781 A.2d 1167 (Pa. 2001) (holding: “where an 

appellant files his first PCRA Petition without the assistance of counsel, the 

appellant shall be permitted to file an amended PCRA Petition with the 

assistance of counsel”); Commonwealth v. Andress, 260 A.3d 99 (Pa. 

Super. 2021) (non-precedential decision) at *3 (holding: “we vacate the order 

dismissing appellant's second PCRA petition, and remand for nunc pro tunc

relief so that appellant may proceed in the same position he was in prior to 

the breakdown in the court process that began when the PCRA court failed to 

appoint counsel to represent appellant in his first petition”) (quotation marks 

and some capitalization omitted).

As explained above, on February 21, 2020, Appellant filed a timely, pro 

se, first PCRA petition at Docket Number 3421-2016 and both the PCRA court 

and this Court erroneously allowed Appellant to litigate the entirety of the

petition pro se. Given our failures, Appellant’s Current PCRA Petition “may 

not be treated as an untimely second petition.” Williams, 828 A.2d at 990. 

Instead, pursuant to our Supreme Court’s precedent and in view of Appellant’s

prior uncounseled and erroneously-dismissed PCRA petition, Appellant’s 

Current PCRA Petition must be considered a timely, first petition under the 
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PCRA. We thus vacate the PCRA court’s order and remand the matter for 

further proceedings.

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/29/2022