J-S66023-17

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

v.

PAUL JAY BONUS, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 188 WDA 2017

Appeal from the PCRA Order January 4, 2017

In the Court of Common Pleas of Somerset County Criminal Division at 

No(s): CP-56-CR-0000227-2013

BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT*, J.

MEMORANDUM BY DUBOW, J.: FILED DECEMBER 15, 2017

Appellant, Paul Jay Bonus, appeals from the January 4, 2017 Order 

dismissing his first Petition pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We vacate and remand with 

instructions.

On July 9, 2013, Appellant entered an open guilty plea to Rape by 

Forcible Compulsion, 18 Pa.C.S. § 3121(a)(1).1 On October 2, 2013, the 

trial court sentenced Appellant to a mandatory minimum sentence of 10 to 

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In exchange for Appellant’s guilty plea, the Commonwealth withdrew 10 

other charges: Rape by Threat of Forcible Compulsion, Sexual Assault, 

Aggravated Indecent Assault without Consent, Aggravated Indecent Assault 

by Forcible Compulsion, Aggravated Indecent Assault by Threat of Forcible 

Compulsion, Incest of Minor, Corruption of Minors, Indecent Assault without 

Consent, Indecent Assault by Forcible Compulsion, and Indecent Assault by 

Threat of Forcible Compulsion.
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20 years’ incarceration pursuant to 42 Pa.C.S. § 9718(a)(1). At both 

Appellant’s guilty plea hearing and sentencing hearing, Appellant’s counsel 

informed the court that Appellant’s guilty plea to Rape by Forcible 

Compulsion of a victim under the age of 16 carried a mandatory minimum 

ten-year sentence pursuant to 42 Pa.C.S. § 9718(a)(1). See N.T. Guilty 

Plea Hearing, 7/9/13, at 3; N.T. Sentencing Hearing, 10/2/13, at 4. The 

trial court sentenced Appellant accordingly. See N.T. Sentencing Hearing, at 

at 5; Sentencing Order, 10/2/13; Sentencing Guideline Form, 10/4/13. 

The record does not reflect, however, that counsel or the court 

informed Appellant that less than one month before Appellant’s guilty plea 

hearing on June 17, 2013, the U.S. Supreme Court decided Alleyne v. 

United States, 113 S.Ct. 2151 (U.S. 2013). The Court in Alleyne held that 

any fact that increases a mandatory minimum sentence for a crime—other 

than the fact of a prior conviction—is an element of that crime, which much 

be submitted to a jury. Alleyne, thus, called into question the 

constitutionality of mandatory minimum sentences.2

Following his sentencing, Appellant did not file a timely Post-Sentence 

Motion or a direct appeal to this Court. Thus, Appellant’s Judgment of 

Sentence became final on November 2, 2013. See 42 Pa.C.S. § 9545(b)(3) 

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2 On June 20, 2016, the Pennsylvania Supreme Court in Commonwealth v. 

Wolfe, 140 A.3d 651, 663 (Pa. 2016) specifically found Section 9718, the 

statute pursuant to which the court sentenced Appellant, unconstitutional.
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(mandating that a Judgment of Sentence becomes final at the conclusion of 

direct review or at the expiration of the time for seeking review); 

Pa.R.Crim.P. 720(A)(3).

On January 28, 2014, the trial court docketed a handwritten letter, 

post-marked November 22, 2013, from Appellant in which Appellant 

requested reconsideration of his sentence. Appellant claimed that he “was 

sentenced to a longer time than [he] deserves” because this was his first 

offense. There is a notation in the docket that the court had sent to 

Appellant’s trial counsel, Steven L. Miller of the Public Defender’s office, a 

copy of the letter on November 26, 2013. Neither Appellant’s counsel nor 

the court took any action in response to Appellant’s letter.

On September 14, 2015, Appellant filed a pro se Motion to Modify and 

Correct Sentence, which the court treated as a first PCRA Petition. In his 

Motion, Appellant challenged the legality of his mandatory minimum 

sentence pursuant to Alleyne. That same day, Appellant also filed a pro se

“Motion for Withdrawal of Counsel Inter Alia Ineffective Assistance of 

Counsel,” alleging trial counsel had abandoned him.

On December 7, 2015 the PCRA court entered an Order appointing 

Appellant new counsel and scheduling a hearing on Appellant’s Petition.

Following the hearing, the PCRA court took the matter under 

advisement “to determine whether or not [Appellant’s] Petition has been 

timely filed.” PCRA Order, 1/26/16. 
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On May 26, 2016, the PCRA court issued a Memorandum and Notice of 

Intent to Dismiss Appellant’s PCRA Petition pursuant to Pa.R.Crim.P. 907 

finding the Petition untimely and concluding that Appellant had failed to 

plead and prove any exceptions to the PCRA’s time-bar. See 42 Pa.C.S. §

9545(b)(1)(i)-(iii).

On August 10, 2016, Appellant filed a Response to the court’s Rule 907 

Notice in which he asserted that his Petition was not untimely because on 

June 20, 2016, the Pennsylvania Supreme Court had affirmed this Court’s 

ruling in Commonwealth v. Wolfe, 140 A.3d 651, 663 (Pa. 2016), finding

Section 9718 to be unconstitutional. 

On August 15, 2016, Appellant filed an additional Motion for Post 

Conviction Collateral Relief, in which he reiterated the arguments set forth in 

his Response to the court’s Rule 907 Notice. Because the PCRA court had 

not dismissed Appellant’s September 14, 2015 PCRA Petition, nor granted 

leave for Appellant to file an Amended Petition, the court treated this filing 

as a supplement to Appellant’s Response to the court’s Rule 907 Notice. 

Appellant argued that this Petition was timely because he filed it within 60 

days of the Supreme Court’s Opinion in Wolfe, supra.

On January 4, 2017, the PCRA court concluded that Appellant’s PCRA 

Petition was untimely, and that Appellant had not proved the applicability of 

any of the PCRA’s exceptions to the time-bar. The court noted that, because 

Appellant’s Judgment of Sentence became final on November 2, 2013, in 

order to be timely, Appellant was required to file a PCRA Petition on or 
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before November 2, 2014. Appellant filed a PCRA Petition on September 9, 

2015. Thus, the court concluded that Appellant’s Petition was patently 

untimely. The court further noted that Appellant had not raised a question 

of the retroactivity of Alleyne, because the Supreme Court decided Alleyne

before Appellant entered his guilty plea to Rape. PCRA Ct. Op, 1/4/17, at 5.

In a footnote, the PCRA court acknowledged for the first time that on 

November 26, 2013, the court received Appellant’s letter requesting 

reconsideration of his sentence. Id. at n 1. The trial court characterized 

this letter as an untimely Post-Sentence Motion. 

Appellant timely appealed from the January 4, 2017 Order dismissing 

his PCRA Petition. Both Appellant and the PCRA court complied with 

Pa.R.A.P. 1925.

Before reaching the merits of Appellant’s issues on appeal, we note

that the trial court erroneously failed to treat Appellant’s November 26, 2013 

letter challenging his sentence as a timely first PCRA Petition. See 

Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001) 

(holding that, regardless of what a defendant titles his Petition, “the PCRA is 

the exclusive vehicle for obtaining post-conviction collateral relief.”). See 

also Commonwealth v. Evans, 866 A.2d 442, 443-44 (Pa. Super. 2005)

(concluding that a Motion for Reconsideration or Modification of Sentence 

should be treated as PCRA Petition); Commonwealth v. Beck, 848 A.2d 

987, 989 (Pa. Super. 2004) (concluding that collateral challenge to legality 

of sentence for failure to give credit for time served must be brought under 
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the PCRA, despite being labeled as a Petition for habeas corpus);

Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002)

(concluding that a Motion to Vacate Sentence qualified as a PCRA Petition);

Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000)

(concluding that a Motion to Correct Illegal Sentence would be treated as

PCRA Petition).

Given the trial court’s failure to properly consider Appellant’s 

November 26, 2013 letter as a first PCRA Petition, “we could vacate and 

remand on this basis alone, as this conclusion by the court is in error.” 

Kutnyak, 781 A.2d at 1262. 

Further, defendants have a general rule-based right to the assistance 

of counsel for their first PCRA Petition. Pa.R.Crim.P. 904(C). See 

Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009) (en 

banc) (stating, “a criminal defendant has a right to representation of counsel 

for purposes of litigating a first PCRA petition through the entire appellate 

process.”). “The indigent petitioner’s right to counsel must be honored 

regardless of the merits of his underlying claims, even where those claims 

were previously addressed on direct appeal, so long as the petition in 

question is his first.” Commonwealth v. Powell, 787 A.2d 1017, 1019 

(Pa. Super. 2001) (citation omitted).

Thus, “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 
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mistake.” Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 

2011). 

Although the court forwarded Appellant’s trial counsel a copy of 

Appellant’s pro se November 26, 2013 letter, it is not evident from the 

record whether counsel still represented Appellant at that time. Thus, given 

the nature of the relief Appellant sought and that Appellant’s sentence was 

illegal at the time of his sentencing, it was incumbent upon the court to 

ensure that Appellant had counsel, or had properly waived counsel, for what 

was, in actuality, his first PCRA Petition. See Commonwealth v. Grazier, 

713 A.2d 81 (Pa. 1998). The lower court erred in not appointing PCRA 

counsel to Appellant following its receipt of his November 2013 letter.

Accordingly, we vacate the court’s January 4, 2017 Order dismissing 

Appellant’s “second” PCRA Petition and remand for Appellant’s appointed 

counsel to file an amended first PCRA Petition.

Order vacated. Case remanded. Jurisdiction relinquished.

President Judge Emeritus Bender joins this memorandum.

Judge Platt concurs in the results.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/15/2017
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