Com. v. Min, J.

J-S22043-24

                                 

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
 JOSEPH YU CHI MIN                         :
                                           :
                     Appellant             :   No. 724 WDA 2023

             Appeal from the PCRA Order Entered June 6, 2023
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0001894-2013


BEFORE: PANELLA, P.J.E., LANE, J., and BENDER, P.J.E.

OPINION BY BENDER, P.J.E.:                            FILED: July 30, 2024

        Appellant, Joseph Yu Chi Min, appeals pro se from the order that

dismissed his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-46.      Appellant maintains that he is entitled to a new

sentencing hearing because of bias exhibited by the sentencing judge.

Because Appellant was not afforded counsel on this, his first PCRA petition

after resentencing, we are constrained to vacate the court’s order and remand

for the appointment of counsel and any additional proceedings that may be

necessary.

        The underlying facts of Appellant’s convictions are well-known to the

parties and immaterial to our disposition, so we need not repeat them in detail

here.    Briefly, Appellant was convicted on January 31, 2014, of various

offenses related to improper sexual contact with a minor. Initially, Appellant

was sentenced to an aggregate term of 30 to 60 years of incarceration. The
J-S22043-24



trial court also determined that Appellant is a sexually violent predator. N.T.,

5/1/14, at 23. Appellant filed a timely direct appeal, but discontinued it before

a final determination after the sudden death of appellate counsel. With new

counsel, Appellant filed a PCRA petition on May 11, 2015, asserting various

claims related to the ineffective assistance of trial counsel and two sentencing

claims.

      In the answer filed by the Commonwealth to Appellant’s PCRA petition,

the Commonwealth conceded that Appellant’s sentence was formulated using

mandatory minimum sentences under Section 9718 of the Sentencing Code

that had since been deemed unconstitutional.         See Commonwealth v.

Wolfe, 

 (Pa. Super. 2014), aff’d, 

 (Pa. 2016).

However, while the Commonwealth agreed that Appellant’s sentence should

be vacated, it argued that the remaining PCRA claims of ineffective assistance

of counsel should be denied.

      Following a PCRA hearing, the PCRA court vacated the initial sentence

and resentenced Appellant to a term of 10 to 20 years of imprisonment at

Count 1, a similar term at Count 2, and a term of 5 to 10 years of

imprisonment at Count 3, all to be served consecutively to each other,

resulting in an aggregate sentence of 25 to 50 years. See Sentencing Order,

12/16/15.    The PCRA court denied Appellant’s remaining ineffectiveness

claims, finding them to be meritless.

      A counseled, direct appeal was taken from this judgment of sentence on

January 5, 2016, after which the Superior Court affirmed the denial of

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Appellant’s ineffective assistance of counsel claims, but remanded his case for

a new sentencing hearing.          Commonwealth v. Min, 

 (Pa.

Super. 2017) (unpublished memorandum). Appellant’s petition for allowance

of appeal to the Pennsylvania Supreme Court was denied. Commonwealth

v. Min, 

 (Pa. 2017).

       Pursuant to this Court’s remand order, Appellant’s case proceeded to

resentencing on January 17, 2018.                At this hearing, the PCRA court

restructured Appellant’s sentence such that the sentence imposed at Count 3

was ordered to be served concurrently with the incarceration sentences

imposed on Counts 1 and 2. Appellant’s new aggregate sentence is 20 to 40

years of incarceration. See Sentencing Order, 1/29/18.

       No action was taken on this case until Appellant, pro se, filed the instant

PCRA petition on February 28, 2023.1 The Commonwealth filed an answer to

Appellant’s petition on April 12, 2023. Appellant filed a pro se objection to the

Commonwealth’s answer on May 8, 2023. On June 6, 2023, the PCRA court2

issued an order dismissing Appellant’s PCRA petition. Appellant then timely

filed a pro se notice of appeal on June 15, 2023. Further, Appellant timely
____________________________________________


1 On June 20, 2023, counsel — who last represented Appellant in 2016 and

had not heard from Appellant since that time — filed a motion to withdraw as
counsel for Appellant.    Apparently, counsel had never withdrawn his
appearance in the Superior Court and was notified when Appellant filed the
notice of appeal in this case. Counsel was subsequently permitted to
withdraw.

2 Appellant’s initial trial judge was the Honorable Donna Jo McDaniel.
                                                                     After
Judge McDaniel’s retirement, the case was transferred to the Honorable
Anthony M. Mariani, who filed the PCRA court opinion in this appeal.

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filed a statement of errors complained of on appeal, and the PCRA court filed

its opinion, in which it opined that the PCRA petition was untimely filed. PCRA

Court Opinion (PCO), 10/18/23, at 4.

      Because our evaluation of this case rests upon a question of law, our

standard of review is plenary. Commonwealth v. Smith, 

(Pa. 2003).        “In proceedings under the PCRA, the scope of review of an

appellate court is limited by the parameters of the act.”                

 (citing

Commonwealth v. Strong, 

, 1170 n.3 (Pa. 2000)).                    We

review the denial of a PCRA petition to determine whether the record supports

the PCRA court’s findings and whether its order is free of legal error.

Commonwealth v. Kelsey, 

 (Pa. Super. 2019).

Furthermore, a court’s decision to deny a PCRA claim without a hearing may

only be reversed upon a finding of an abuse of discretion. Commonwealth

v. Keaton, 

 (Pa. 2012).

      Before reaching the merits of Appellant’s claims, we must first consider

whether counsel should have been appointed to represent him in litigating his

petition before the PCRA court.           It is undisputed that first-time PCRA

petitioners have the right to counsel under our Rules of Criminal Procedure.

See Pa.R.Crim.P. 904.        Moreover, “[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, 

(Pa. Super. 2002). In cases that appear to be untimely, counsel is principally

appointed     to    determine   whether    any   exceptions   to   the   timeliness

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J-S22043-24



requirements of the PCRA apply. Commonwealth v. Stossel, 

 (Pa. Super. 2011). As our Supreme Court has stated, “The denial of

PCRA relief cannot stand unless the petitioner was afforded the assistance

of counsel.” Commonwealth v. Albrecht, 

 (Pa. 1998)

(citation omitted; emphasis added).

      The PCRA court, in its Rule 1925(a) opinion, noted that this was

Appellant’s second PCRA petition, and that it was filed almost five years after

his judgment of sentence became final on February 16, 2018, after the

expiration of the thirty-day time-period for filing an appeal with this Court.

See 42 Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence becomes

final at the conclusion of direct review or the expiration of the time for seeking

the review); Pa.R.A.P. 903(a) (directing that a notice of appeal to Superior

Court must be filed within 30 days after the entry of the order from which the

appeal is taken); PCO at 4. The PCRA court opined that Appellant had not

attempted to show that he was entitled to any exceptions from the PCRA’s

timeliness requirements set forth in 42 Pa.C.S. § 9545(b), and that the

untimely petition was thus properly denied. Id. at 5.

      The PCRA court erred in treating this filing as Appellant’s second PCRA

petition. We reiterate the procedural history of this case. Appellant was first

convicted on January 31, 2014.        Although Appellant’s direct appeal was

discontinued, his PCRA petition resulted in resentencing.       See Sentencing

Order, 12/15/15. A direct appeal was taken from the new sentence, after

which the Superior Court remanded the case for a second resentencing.

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J-S22043-24



Commonwealth v. Min, 

 (Pa. Super. 2017).                The second

resentencing occurred on January 17, 2018. This was the last docket entry

until Appellant’s pro se PCRA petition was filed in February 2023.

      Importantly, because the earlier proceeding resulted in Appellant being

resentenced, the at-issue PCRA petition is the first attack by Appellant on his

new (i.e., 2018) sentence. In Commonwealth v. Lesko, 

(Pa. 2011), a capital case, the Third Circuit Court of Appeals remanded for a

new sentencing hearing due to improper comments made by the prosecutor

during the penalty phase of Lesko’s trial.     

.    Lesko was again

sentenced to death on remand, and was unsuccessful in his subsequent direct

appeal.   See Commonwealth v. Lesko, 

 (Pa. 1998), cert.

denied, 

 (1999). Pennsylvania’s governor signed a warrant for

Lesko’s execution soon thereafter. Lesko, 

. Lesko quickly filed

a petition under the PCRA, attempting to challenge his conviction and his

sentence, and also moved for a stay of execution. 

 The PCRA court granted

the stay and appointed counsel. 

      After a hearing on the amended PCRA petition, the PCRA court

determined that Lesko was entitled to a new trial and new penalty hearing.

   The Commonwealth filed an appeal.       

   Lesko filed a cross-appeal,

raising those issues contained within his PCRA petition for which he had not

obtained relief. 

 The Commonwealth argued that any issues related to

Lesko’s original trial (“guilt phase claims”) were time-barred. 

. In

his petition, Lesko had raised several claims of trial counsel’s ineffectiveness.

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The PCRA court granted Lesko a new trial due to trial counsel’s interference

with Lesko’s right to testify at trial, counsel’s ineffectiveness related to certain

Brady3 evidence that had not been turned over, and counsel’s failure to

develop impeachment evidence. 

       According to the Commonwealth, issues related to the guilt phase had

to be presented by January 16, 1997, the date on or before which a first PCRA

petition could have been timely filed.4 

 In contrast, Lesko argued that his

sentence did not become final until January 19, 1999, when the United States

Supreme Court denied his petition for certiorari, and that his petition filed on

May 24, 1999, was therefore timely.              

   After considering the specific

provisions and purposes of the PCRA, and recognizing the limited role of the

lower federal habeas courts in reviewing state court criminal judgments, the

Pennsylvania Supreme Court concluded that Lesko was barred from raising

issues related to the guilt phase of his trial, but could challenge his new

sentence. 

. Our Supreme Court explained:

       The new sentencing proceeding and its result are the cause of the
       defendant’s continuing restraint; and that proceeding is
       sufficiently distinct from the initial sentencing proceeding that
       collateral review of issues specific to the resentencing is consistent
       with the plain intent and purpose of the PCRA…. [A] limited grant
       of federal habeas sentencing relief does not give rise to a “right”


____________________________________________


3   Brady v. Maryland, 

 (1963).

4 Because Lesko’s offense occurred in 1980, before enactment of the PCRA,

the statute set forth the date by which PCRA petitions must have been filed
for these older cases.

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J-S22043-24


      to full-blown serial PCRA review of a trial whose result (conviction)
      has long been final.

                                 *     *      *

      Lesko’s “right” to first petition PCRA review is necessarily confined
      to that part of the final Pennsylvania judgment that was disturbed
      by the federal habeas proceedings. All other aspects of the
      original judgment remain as before – final.

Id. at 366 (emphasis in original). Thus, because the Third Circuit’s grant of

relief involved only sentencing, Lesko was entitled to file a first PCRA petition

related to those sentencing claims, despite his conviction occurring more than

one year before the petition was filed. Id. at 367.

      Turning to the case at bar, when Appellant was resentenced in 2018, it

constituted a new sentence that only became final thirty days after its

imposition, as Appellant did not file an appeal. See Pa.R.A.P. 903 (“[T]he

notice of appeal … shall be filed within 30 days after the entry of the order

from which the appeal is taken.”). Because Appellant was resentenced, he

may challenge that new sentence under the PCRA. Lesko, supra. See also

Commonwealth v. Samuel, Nos. 173 WDA 2022 & 174 WDA 2022,

unpublished memorandum at 9-10 (Pa. Super. filed Feb. 14, 2023) (stating

that once the appellant’s direct appeal from his new judgment of sentence

imposed following resentencing was final, the appellant “acquired a rule-based

right to counsel on his first PCRA petition, within which he could assert

challenges to the legality of his newly-imposed sentence”); Commonwealth

v. Faust, No. 1254 EDA 2020, unpublished memorandum at 5 (Pa. Super.

filed Dec. 1, 2020) (observing that “a petitioner may file a PCRA petition



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asserting claims related to resentencing proceedings within one year of the

date that the new judgment of sentence becomes final”).5 Thus, the PCRA

court erred in failing to treat Appellant’s petition as a first PCRA petition with

respect to any claims relating to his resentencing. Moreover, because this is

considered a first PCRA petition with respect to Appellant’s 2018 resentencing,

he was entitled to the appointment of counsel to amend his pro se petition.

The PCRA court’s failure to do so was error, regardless of the petition’s facial

untimeliness. Commonwealth v. Smith, 

 (Pa. 2003)

(holding that Pa.R.Crim.P. 904 “mandates that an indigent petitioner, whose

first PCRA petition appears untimely, is entitled to the assistance of counsel in

order to determine whether any of the exceptions to the one-year time

limitation apply”).

       To summarize, we hold that Appellant’s PCRA petition, filed after his

resentencing proceeding, constitutes his first petition for issues related to his

resentencing and, thus, he is entitled to the appointment of counsel.

Therefore, we vacate the order denying PCRA relief and remand this matter

for the appointment of counsel and further proceedings as are necessary.

       Order vacated.         Case remanded with instructions.        Jurisdiction

relinquished.




____________________________________________


5 Unpublished non-precedential decisions of the Superior Court filed after May

1, 2019, may be cited for their persuasive value. Pa.R.A.P. 126(b).

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DATE: 07/30/2024




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