J-S39025-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

JOVON JAVAR DESHIELDS,

Appellee No. 1768 MDA 2015

Appeal from the PCRA Order October 6, 2015

in the Court of Common Pleas of York County

Criminal Division at Nos.: CP-67-CR-0002392-2012

CP-67-CR-0002393-2012

CP-67-CR-0006613-2010

BEFORE: STABILE, J., PLATT, J.*, and STRASSBURGER, J.*

MEMORANDUM BY PLATT, J.: FILED JUNE 06, 2016

The Commonwealth appeals from the order granting the petition filed 

by Appellee, Jovon Javar DeShields, pursuant to the Post Conviction Relief 

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. The PCRA court’s order vacated its 

prior decision denying Appellee’s petition, and reinstated his right to file a 

petition for allowance of appeal with the Pennsylvania Supreme Court nunc 

pro tunc. We affirm.

The PCRA court aptly set forth the background facts and procedural 

history of this matter in its October 6, 2015 opinion.

[Appellee] was convicted of attempted murder, two counts 

of aggravated assault, possession of a firearm by a minor, and 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-S39025-16

- 2 -

carrying a firearm without a license following a jury trial on June 

20, 2012. [He] was sentenced to twelve to twenty-four years[’] 

incarceration, followed by five years [of] probation on other 

charges. [Appellee’s] trial attorney was Ronald Gross, Esquire 

(“Gross”). Gross filed post-sentencing motions and a timely 

appeal to the Superior Court. [Appellee’s] sentence was 

affirmed by the Superior Court on April 19, 2013. [(See 

Commonwealth v. DeShields, 75 A.3d 559 (Pa. Super. 2013) 

(unpublished memorandum)).] Gross did not file a petition for 

allowance of appeal to the Pennsylvania Supreme Court, which 

forms the basis of the instan[t] PCRA.

[The PCRA c]ourt held a hearing on the PCRA [petition] on 

August 11, 2015. At the hearing, Gross testified that he had an 

oral agreement with [Appellee’s] family to file the Superior Court 

appeal, which was not reduced to writing. When [Appellee’s] 

sentence was affirmed by the Superior Court, Gross wrote to 

[him] on April 19, 2013, notifying him of the affirmance and 

stated:

Unfortunately the Superior Court denied your appeal 

so you are stuck doing the time. The next step in the 

appeal could be the request to the Supreme Court to 

hear the case but the chances [of] that occurring are 

slim based [on] the Superior Court already affirming 

the conviction and there is not a dispute in the law 

about the issue raised.

The letter did not address whether or not Gross was 

actually going to file the discretionary appeal; did not notify 

[Appellee] that he had thirty days to file it if Gross was not 

continuing to represent him; nor that [Appellee] could apply for 

a public defender to pursue the appeal if Gross did not continue 

representation. This letter was Gross’ last direct communication 

with [Appellee].[a] [Appellee] assert[ed at the hearing] that he 

wanted to continue the appeal process and believed that Gross 

would pursue the petition for allowance.

[a] [Appellee] was seventeen years old when he was 

tried as an adult, and was eighteen years old when 

he received this communication from [] Gross.

During the thirty-day window in which the petition for 

allowance could have been filed, Gross testified that he spoke to 

[Appellee’s] family every other week. Although having regular 
J-S39025-16

- 3 -

contact with [Appellee’s] family, Gross could not recall whether 

or not he notified the family that he would not be filing the 

petition of allowance. A few months later, [Appellee’s] [m]other 

contacted Gross to follow up on the status of the appeal. Gross 

notified [her] that the time to [file] the petition had passed and 

the appellate right was lost. The thirty-day window to file the 

petition for allowance closed on May 19, 2013.

On September 9, 2013, [Appellee] filed a [pro se] petition 

to reinstate his appellate rights, nunc pro tunc, raising the issue 

of ineffective assistance of counsel based on Gross’s failure to 

file the petition for allowance. [Appellee] aver[red] that [thirty] 

[days] after filing the petition, the [p]rothonotary informed 

Gross about it as Gross was still listed as attorney of record. 

Gross took no action on the petition. On December 30, 2013, 

[Appellee] again filed the same petition with the [c]ourt. The 

next day, Gross filed a petition to withdraw as counsel. The 

[c]ourt granted leave to withdraw on January 8, 2014.

[Appellee] . . . again re-filed the [pro se] petition on 

January 22, 201[4]. The [c]ourt denied the petition by [o]rder 

dated May 7, 2014, without appointing PCRA counsel or notifying 

[Appellee] of the dismissal pursuant to Pa.R.Crim.P. 907. 

[Appellee] did not appeal the May 7, 2014 [o]rder. 

Approximately seven months later, private counsel, Mark K. 

McCullough, Esquire, (“PCRA counsel”) enter[ed] his appearance 

on [Appellee’s] behalf and filed [a] counseled [untimely] PCRA to 

[r]einstate [a]ppellate [r]ights on December 22, 2014. PCRA 

counsel raise[d] the same arguments as [Appellee’s] January 22, 

2014 [pro se] petition, i.e., that Gross was ineffective for failing 

to file for discretionary review. PCRA counsel also filed a 

“[s]upplement” to the PCRA [petition] on June 4, 2015, 

reiterating similar arguments, and now linking them with Gross’s 

temporary suspension from the practice of law, which occurred 

during the pendency of the instant PCRA.

After the PCRA hearing, the [c]ourt provided the parties 

time to supplement their legal argument, specifically addressing 

whether the [c]ourt has jurisdiction to rule on [a] facially 

untimely PCRA. . . .

(PCRA Court Opinion, 10/06/15, at 1-4) (most footnotes omitted). On 

October 6, 2015 the PCRA court vacated its May 12, 2014 order denying 
J-S39025-16

- 4 -

Appellee’s January 22, 2014 petition on the basis that it had failed to appoint 

PCRA counsel, and it granted Appellee’s PCRA petition for leave to appeal to 

the Pennsylvania Supreme Court nunc pro tunc. The Commonwealth timely 

appealed.1

The Commonwealth raises two questions for our review.

I. Whether the [PCRA] court lacked jurisdiction on October 6, 

2015 to reinstate [Appellee’s] allocatur rights for his direct 

appeal where [Appellee’s] instant PCRA petition was 

jurisdictionally untimely?

II. [Whether] the PCRA court erred in vacating the finalunappealed order denying [Appellee’s] first timely PCRA 

petition over a year after it was issued, in a subsequent 

untimely PCRA petition[?]

(Commonwealth’s Brief, at 4) (unnecessary capitalization omitted).

This Court examines PCRA appeals in the light most 

favorable to the prevailing party at the PCRA level. Our review 

is limited to the findings of the PCRA court and the evidence of 

record[.] Additionally, [w]e grant great deference to the factual 

findings of the PCRA court and will not disturb those findings 

unless they have no support in the record. In this respect, we 

will not disturb a PCRA court’s ruling if it is supported by 

evidence of record and is free of legal error. However, we afford 

no deference to its legal conclusions. [W]here the petitioner 

raises questions of law, our standard of review is de novo and 

our scope of review is plenary.

____________________________________________

1 On November 2, 2015, the Commonwealth filed a timely statement of 

errors complained of on appeal pursuant to the court’s order. See Pa.R.A.P. 

1925(b). The PCRA court filed an opinion on November 6, 2015 in which it 

relied on the reasons stated in its October 6, 2015 opinion. See Pa.R.A.P. 

1925(a).
J-S39025-16

- 5 -

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014), appeal 

denied, 101 A.3d 785 (Pa. 2014) (citations and quotation marks omitted).

It is well-settled that:

A PCRA petition, including a second or subsequent one, must be 

filed within one year of the date the petitioner’s judgment of 

sentence became final, unless he pleads and proves one of the 

three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A 

judgment becomes final at the conclusion of direct review by this 

Court or the United States Supreme Court, or at the expiration 

of the time for seeking such review. 42 Pa.C.S.[A.] § 

9545(b)(3). The PCRA’s timeliness requirements are 

jurisdictional; therefore, a court may not address the merits of 

the issues raised if the petition was not timely filed. The 

timeliness requirements apply to all PCRA petitions, regardless of 

the nature of the individual claims raised therein. The PCRA 

squarely places upon the petitioner the burden of proving an 

untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations 

and footnote omitted).

In the case sub judice, Appellee’s judgment of sentence became final 

on May 19, 2013, thirty days after we affirmed his judgment of sentence, 

and no petition for allowance of appeal was filed in the Pennsylvania 

Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had one

year from that date to file a petition for collateral relief unless he pleaded 

and proved that a timeliness exception applied. See 42 Pa.C.S.A. §§ 

9545(b)(1)(i)-(iii). Hence, Appellant’s current petition, filed on December 

22, 2014, is untimely on its face, and we lack jurisdiction to consider its 

merits, unless he pleads and proves one of the statutory exceptions to the 

time-bar.
J-S39025-16

- 6 -

Here, Appellee did not plead any timeliness exception in his PCRA 

petition; nor does he argue their applicability before this Court. (See PCRA 

Petition, 12/22/14, at unnumbered pages 1-5; Appellee’s Brief, at 6-12). 

Instead, he maintains that the PCRA court properly treated his untimely 

petition as an amendment to his previously filed timely pro se petition. (See

Appellee’s Brief, at 6; PCRA Ct. Op., at 7-8). We agree.

Pennsylvania law vests PCRA courts “with discretion to 

permit the amendment of a pending, timely-filed post-conviction 

petition....” Commonwealth v. Flanagan, 578 Pa. 587, 605, 

854 A.2d 489, 499 (2004).

[T]he prevailing rule remains simply that 

amendment is to be freely allowed to achieve 

substantial justice. The [Pennsylvania Supreme] 

Court has recognized that adherence to such rules 

governing post-conviction procedure is particularly 

appropriate since, in view of the PCRA’s time 

limitations, the pending PCRA proceeding will most 

likely comprise the petitioner’s sole opportunity to 

pursue collateral relief in state court. 

Id. at 605, 854 A.2d at 500 (emphasis added) (internal citations 

omitted). In the absence of a final ruling on a timely-filed first 

PCRA petition, another petition for post-conviction relief can be 

considered an amended first timely petition. See

Commonwealth v. Williams, 573 Pa. 613, 828 A.2d 981 

(2003) (holding pro se petitioner’s subsequent PCRA petitions 

constituted amendments to timely-filed first petition; although 

petitioner filed pro se motion to withdraw first PCRA petition, 

court took no action on motion; thus, motion to withdraw first 

PCRA petition was without effect, first PCRA petition remained 

valid, and court could not find subsequent PCRA petitions 

untimely).

Nevertheless, the PCRA also provides for the dismissal of a 

properly filed petition under certain circumstances:

§ 9543. Eligibility for relief
J-S39025-16

- 7 -

* * *

(b) Exception.—Even if the petitioner has met the 

requirements of subsection (a), the petition shall be 

dismissed if it appears at any time that, because of 

delay in filing the petition, the Commonwealth has 

been prejudiced either in its ability to respond to the 

petition or in its ability to re-try the petitioner. . . .

42 Pa.C.S.A. § 9543(b). Recently, our Supreme Court held that 

Section 9543(b) applies to delays in the filing of original or

amended PCRA petitions[. See Commonwealth v. 

Renchenski, 52 A.3d 251, 259 (Pa. 2012).2]

Commonwealth v. Swartfager, 59 A.3d 616, 619 (Pa. Super. 2012) 

(emphasis in original); see also Pa.R.Crim.P. 905(A). 

Here, the court vacated its May 12, 2014 order denying Appellee’s pro 

se first PCRA petition on the basis that it had failed to determine whether 

____________________________________________

2 The Commonwealth relies on Renchenski in support of its argument that 

the court erred in treating the December 22, 2014 PCRA petition as an 

amendment of the timely filed pro se first PCRA petition because “the 

timeliness of amended PCRA petitions and nunc pro tunc petitions should be 

determined using the date of the subsequent filings, not the date the original 

PCRA petition was filed.” (Commonwealth’s Brief, at 14 (citation omitted)). 

The Commonwealth’s reliance is not legally persuasive. In Renchenski, the 

Pennsylvania Supreme Court allowed an appeal “to address the applicability 

of Section 9543(b) of the [PCRA] to delays in filing amended post-conviction 

petitions and the related issue of what obligation, if any, a petitioner has to 

move the litigation of his petition forward.” Rechenski, supra at 251. The 

Court concluded, in relevant part, that Section 9543(b) applies to both 

original and amended PCRA petitions and that, therefore, “in certain 

instances of substantial delay, the prejudice suffered by the 

Commonwealth as a result of that delay, as demonstrated at an 

evidentiary hearing, justifies dismissal of an original or amended petition.” 

Id. at 260 (emphasis added). This is not applicable here where the requests 

for PCRA relief were filed less than a year apart, and the Commonwealth 

does not allege prejudice as the result of the delay. (See Commonwealth’s 

Brief, at 14-19).
J-S39025-16

- 8 -

Appellee was entitled to the appointment of counsel pursuant to Rule 904(C) 

of the Pennsylvania Rules of Criminal Procedure. (See PCRA Ct. Op., at 7-8, 

10); see also Commonwealth v. Stossel, 17 A.3d 1286, 1288 (Pa. Super. 

2011) (observing that “right to counsel unconditionally attaches[]” to firsttime PCRA petitioner because, “[w]ithout the input of an attorney, important 

rights and defenses may be forever lost.”) (citation omitted); Pa.R.Crim.P. 

904(C). Therefore, there was no longer a final order on Appellee’s first 

PCRA petition. The court then treated the counseled December 22, 2014 

PCRA petition as an amendment to the timely filed, pro se first PCRA petition 

pursuant to Swartfager, which the Commonwealth does not argue 

prejudiced it, and we fail to see how it could in these circumstances. (See

Commonwealth’s Brief, at 14-19).

Therefore, because “the prevailing rule remains simply that 

amendment is to be freely allowed to achieve substantial justice,” and the 

Commonwealth has not been prejudiced, we conclude that the PCRA court 

properly exercised its discretion in treating Appellee’s second PCRA as an 

amendment of his first, timely filed request for relief where its order denying 

the petition had been vacated. Swartfager, supra at 619 (citation 

omitted). The Commonwealth’s first issue does not merit relief. See 

Henkel, supra at 20.

In its second issue, the Commonwealth argues that “the PCRA court 

erred in vacating the final-unappealed order denying [Appellee’s] first timely 
J-S39025-16

- 9 -

PCRA petition over a year after it was issued[.]” (Commonwealth’s Brief, at 

20) (unnecessary capitalization omitted). We disagree.

Pursuant to 42 Pa.C.S.A. § 5505, a court may modify or rescind its 

orders within thirty days of their being entered if no appeal has been taken. 

See 42 Pa.C.S.A. § 5505. However, “[a] trial court’s inherent power of 

correction” extends beyond thirty days where there are “patent and obvious 

errors that appear on the face of an order, [and] extends to such errors that 

emerge upon consideration of information in the contemporaneous record.” 

Commonwealth v. Borrin, 80 A.3d 1219, 1228 (Pa. 2013) (citation 

omitted).

In this case, the PCRA court vacated its May 12, 2014 order dismissing 

Appellee’s PCRA petition to correct its error of failing to determine first if 

Appellee was entitled to the appointment of counsel. (See PCRA Ct. Op., at 

7). We conclude that this was appropriate in light of the importance we 

attach to the right of a first time PCRA petitioner to assistance of counsel. 

See Borrin, supra at 1228.

The right to counsel in the PCRA setting is a rule-based and important 

one. See Stossel, supra at 1288. Pursuant to Rule 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.” Pa.R.Crim.P. 904(C) (emphasis added). Further:
J-S39025-16

- 10 -

While the right to legal representation in the PCRA context 

is not constitutionally derived, the importance of that right 

cannot be diminished merely due to its rule-based derivation. In 

the post-conviction setting, the defendant normally is seeking 

redress for trial counsel’s errors and omissions. Given the 

current time constraints of 42 Pa.C.S.[A.] § 9545, a defendant’s 

first PCRA petition, where the rule-based right to counsel 

unconditionally attaches, may well be the defendant’s sole 

opportunity to seek redress for such errors and omissions. 

Without the input of an attorney, important rights and 

defenses may be forever lost.

* * *

. . . [T]he denial of PCRA relief cannot stand unless the 

petitioner was afforded the assistance of counsel. . . . Thus, we 

hold that 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.

Stossel, supra at 1288, 1290 (citations and quotation marks omitted) 

(some emphases added; some emphasis in original).

The Commonwealth argues that Appellee’s failure to appeal the denial 

of his pro se PCRA petition resulted in waiver of any issues addressed by the 

court’s order, which necessarily would include his request to appeal nunc pro 

tunc and the court’s failure to appoint PCRA counsel. (See Commonwealth’s 

Brief, at 18-19). However, Appellee’s procedural misstep is precisely the 

type of situation the Rules of Criminal Procedure seek to avoid by requiring 

the appointment of PCRA counsel for a first petition. See Stossel, supra at 

1288. Therefore, under the circumstances present here, we decline to find 

that any challenge to the denial of Appellee’s pro se petition is waived for 
J-S39025-16

- 11 -

review where he was not afforded his right to a hearing on whether he was 

entitled to the appointment of counsel. See id. at 1290.

Hence, based on the importance the Courts of this Commonwealth 

place on the appointment of counsel to first time indigent PCRA petitioners, 

we conclude that the court exercised its inherent power to correct its “patent 

and obvious error” of denying Appellee’s pro se petition without first 

considering this right. Borrin, supra at 1228 (citation omitted). Therefore, 

the court properly vacated its order. The Commonwealth’s second issue 

does not merit relief.3 See Henkel, supra at 20.

Order affirmed.

Judge Strassburger joins the Memorandum.

Judge Stabile concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/6/2016

____________________________________________

3 The Commonwealth does not argue that the court improperly found that 

trial counsel was ineffective for failing to file a petition for allowance of 

appeal. (See Commonwealth’s Brief, at 14-19). Therefore, we need not 

address the court’s conclusion on the petition’s merits.