Com. v. Thomas, L.

J-A29021-25

                                   2026 PA Super 74

  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
  LEROY KENNETH THOMAS                         :
                                               :
                       Appellant               :   No. 575 WDA 2025

        Appeal from the Judgment of Sentence Entered April 29, 2025
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0009076-2013


BEFORE: OLSON, J., DUBOW, J., and BENDER, P.J.E.

OPINION BY OLSON, J.:                          FILED: April 17, 2026

       Appellant, Leroy Kenneth Thomas, appeals from the April 29, 2025

revocation-of-probation of sentence entered in the Court of Common Pleas of

Allegheny County that imposed an aggregate sentence of seven to 20 years’

incarceration, to be followed by six years’ probation, following the revocation

of his probation. Upon careful review, we vacate that revocation-of-probation

sentence and remand this matter for re-imposition of Appellant’s October 25,

2021 revocation-of-probation sentence.1
____________________________________________


1 We recognize that, as discussed in greater detail infra, Appellant’s aggregate

October 25, 2021 revocation-of-probation sentence includes certain
punishments which are unlawful. Nonetheless, we are constrained to order
reimposition of that revocation-of-probation sentence. As we explain more
fully infra, the court of common pleas exercised jurisdiction under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, to acquire the
authority to address the merits of Appellant’s sentencing challenges, which he
initially asserted in his amended petition for collateral relief filed on November
27, 2024. The petition, however, was untimely and not subject to an
exception. As such, the PCRA court was without jurisdiction to exercise
J-A29021-25



       By way of background, the record reveals that, on October 25, 2021, at

trial court docket number CP-02-CR-02243-2021 (“Case CR-2243”), Appellant

pleaded guilty to indecent assault – complainant less than 13 years of age and

unlawful contact with minor – sexual offenses.2 As a result of his conviction

in Case CR-2243, the trial court, on October 25, 2021, revoked Appellant’s

probation     at    trial   court    docket      number   CP-02-CR-0009076-2013

(“Case CR-9076”) and resentenced Appellant to an aggregate sentence of

seven to 20 years’ incarceration to be followed by six years’ probation.3 In

____________________________________________


authority to undertake collateral review of the merits of Appellant’s sentencing
claims. From this, it follows that the trial court lacked power to resentence
Appellant on April 29, 2025, even though his October 25, 2021
revocation-of-probation sentence was demonstrably illegal.                   See
Commonwealth v. Fantauzzi, 275 A.3d 986, 997-998 (Pa. Super. 2022)
(agreeing that, because the PCRA court lacked jurisdiction to grant relief, the
subsequent resentencing order was null and void ab initio), appeal denied,
289 A.3d 41 (Pa. 2022); see also Commonwealth v. Fahy, 737 A.2d 214,
223 (Pa. 1999) (stating, “[a]lthough legality of sentence is always subject to
review within the PCRA, claims must still first satisfy the PCRA’s time limits or
one of the exceptions thereto”).

2 18 Pa.C.S.A. §§ 3126(a)(7) and 6318(a)(1), respectively.    In Case CR-2243,
the trial court sentenced Appellant to four to eight years’ incarceration to be
followed by three years’ probation. This Court affirmed Appellant’s judgment
of sentence on August 4, 2023. Commonwealth v. Thomas, 304 A.3d 724,
2023 WL 4994485, at *1 (Pa. Super. filed Aug. 4, 2023) (unpublished
memorandum).

3 In Case CR-9076, Appellant pleaded guilty, on April 21, 2014, to involuntary

deviate sexual intercourse with a child – complainant less than 13 years of
age (Count 2), indecent assault – complainant less than 13 years of age
(Count 3), sexual assault (Count 4), and indecent assault – without
complainant’s consent (Count 5). 18 Pa.C.S.A. §§ 3123(b), 3126(a)(7),
3124.1, and 3126(a)(1), respectively. In exchange for Appellant’s guilty plea,



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J-A29021-25



fashioning its October 25, 2021 revocation-of-probation sentence, the trial

court imposed mandatory terms of probation on Appellant’s convictions of

Counts 2 and 3 (Sections 3123(b) and 3126(a)(7) of the Crimes Code)

pursuant to 42 Pa.C.S.A. § 9715.5(a) and subjected Appellant to lifetime

registration as a Tier III sexual offender under Subchapter H of SORNA,

codified at 42 Pa.C.S.A. §§ 9799.10 – 9799.42.4 Appellant did not file a timely
____________________________________________


the Commonwealth agreed to withdraw the criminal charge of rape of a child
(Count 1). 18 Pa.C.S.A. § 3121(c). Because Appellant was convicted of
violating Sections 3123(b), 3126(a)(7), and 3124.1 of the Crimes Code,
Appellant was subject to lifetime registration as a Tier III sexual offender
under the Sex Offender Registration and Notification Act (“SORNA”). See 42
Pa.C.S.A. § 9799.15 (effective Dec. 20, 2012, to Feb. 20, 2018); see also 42
Pa.C.S.A. § 9799.14(d) (effective Dec. 20, 2012, to Sept. 1, 2014).

At the probation revocation and resentencing hearing, Appellant was
represented by Casey White, Esquire (“Attorney White”). At the conclusion of
the resentencing hearing, Attorney White requested that the trial court
appoint new counsel for purpose of pursuing Appellant’s post-sentence and
appellate rights. N.T., 10/25/21, at 47-48. It does not appear, from a review
of the trial court docket, that the trial court appointed new counsel to
represent Appellant. The trial court, however, granted Attorney White’s
motion to withdraw as counsel on March 10, 2022, after Appellant’s
revocation-of-probation sentence had already become final.

4 Section 9718.5 of the Sentencing Code states that “[a] person who is
convicted in a court of this Commonwealth of an offense under [S]ection
9799.14(d) (relating to sexual offenses and tier system) shall be sentenced to
a mandatory period of probation of three years consecutive to and in addition
to any other lawful sentence issued by the court.” 42 Pa.C.S.A. § 9718.5.
Section 9718.5 became effective on April 23, 2018. 2018, Feb. 21, P.L. 27,
No. 10, § 5.1. Because Section 9718.5 became effective on April 23, 2018,
long after the commission of Appellant’s original sexual assault offenses in
2012, and his subsequent adjudication and sentencing in 2014, Appellant
claimed, in his November 27, 2024 amended petition, that his
revocation-of-probation sentence, which included a mandatory period of
probation pursuant to Section 9718.5, was unlawful.


                                           -3-
J-A29021-25



challenge to his revocation-of-probation sentence in Case CR-9076. As such,

Appellant’s revocation-of-probation sentence in Case CR-9076 became final

on November 24, 2021, upon expiration of the time in which to seek an

appeal.5

       On April 8, 2022, Appellant filed pro se a motion requesting permission

to file a post-sentence motion nunc pro tunc, which the trial court treated as

a PCRA petition.6 See Fantauzzi, 275 A.3d at 995 (stating, “regardless of

how a petition is titled, courts are to treat a petition filed after a judgment of

sentence becomes final as a PCRA petition if it requests relief contemplated

by the PCRA”). Brian Patrick McDermott, Esquire (“Attorney McDermott”) was

appointed as PCRA counsel to represent Appellant and, on August 3, 2022,

Appellant filed an amended PCRA petition seeking reinstatement of his




____________________________________________


5 See Pa.R.A.P. 903(a) (stating, a notice of appeal “shall be filed 30 days after

the entry of the order from which the appeal is taken”); see also 42 Pa.C.S.A.
§ 9545(b)(3) (stating that, “a judgment becomes final at the conclusion of
direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
time for seeking the review”).

6 Appellant’s PCRA petition in Case CR-9076 was timely because it was filed

within one year of November 24, 2021, the date his revocation-of-probation
sentence became final. See 42 Pa.C.S.A. § 9545(b)(1) (stating, “[a]ny
petition under this subchapter, including a second or subsequent petition, shall
be filed within one year of the date the judgment becomes final”).


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J-A29021-25



post-sentence and appellate rights nunc pro tunc.7 On August 5, 2022, the

PCRA court granted Appellant’s petition.

       On August 12, 2022, Appellant filed a post-sentence motion seeking

reconsideration of his revocation-of-probation sentence, which the trial court

denied on August 17, 2022.8 Appellant filed a notice of appeal on September

14, 2022. On March 17, 2023, this Court, in a per curiam order, quashed

Appellant’s appeal because Appellant filed his notice of appeal “more than 30

days    after     the    reinstatement         of   [his]   appeal   rights   from   a

revocation-of-probation sentence.”             Per Curiam Order (1082 WDA 2022),

3/17/23, citing Commonwealth v. Wright, 846 A.2d 730, 734 (Pa. Super.

2004) and Pa.R.Crim.P. 708(E). As such, Appellant’s revocation-of-probation

sentence became final on September 6, 2022, upon expiration of the period

____________________________________________


7 In his amended petition, Appellant asserted that, at the conclusion of the

October 25, 2021 probation revocation and resentencing hearing, he
requested the appointment of counsel for the purpose of challenging his
newly-imposed sentence. Appellant further asserted, albeit incorrectly, that
counsel was appointed but that, despite Appellant’s request to do so, counsel
failed to file a post-sentence motion challenging the revocation-of-probation
sentence. In other words, Appellant alleged abandonment of counsel and per
se ineffective assistance of counsel.

8 Although it may be inferred, by the actions he undertook on Appellant’s
behalf, that Attorney McDermott was appointed by the trial court to represent
Appellant in proceedings relating to Appellant’s restored post-sentence and
direct appeal rights, the trial court did not expressly enter an order appointing
Attorney McDermott as counsel. Attorney McDermott’s prior appointment as
PCRA counsel did not automatically transfer to an appointment as counsel for
purpose of post-sentence and direct appeal matters. As discussed infra, the
scope of each appointment is governed by separate Pennsylvania Rules of
Criminal Procedure and are distinct appointments.


                                           -5-
J-A29021-25



in which to file a timely notice of appeal from the reinstatement of his

post-sentence and direct appeal rights.9         Commonwealth v. Brown, 943

A.3d 264, 268 (Pa. 2008) (stating, “in circumstances in which no timely direct

appeal is filed relative to a judgment of sentence, and direct review [has,

therefore, become] unavailable, the one-year period allowed for the filing of

a [PCRA] petition commences upon the actual expiration of the time period

allowed for seeking direct review”); see also 42 Pa.C.S.A. § 9545(b)(3);

Commonwealth v. McKeever, 947 A.2d 782, 786 (Pa. Super. 2008) (stating

that, the judgment of sentence “clock” is reset “only where direct appeal rights

are restored or original conviction is disturbed” (relying on Commonwealth

v. Dehart, 730 A.2d 991, 994 n.2 (Pa. Super. 1999)); Pa.R.A.P. 903(a).

       On July 22, 2024, Appellant filed pro se a PCRA petition. Jacob McCrea,

Esquire (“Attorney McCrea”) was appointed as PCRA counsel. On November

27, 2024, Appellant filed an amended petition asserting a claim that the

imposition of the October 25, 2021 revocation-of-probation sentence, which




____________________________________________


9 Appellant’s post-sentence and direct appeal rights were reinstated on August

5, 2022. Therefore, Appellant had until Tuesday, September 6, 2022, to file
a timely notice of appeal. See Pa.R.A.P. 903(a); see also 1 Pa.C.S.A. § 1908
(stating that, whenever the last day of any period of time referred to in a
statute “shall fall on Saturday or Sunday, or on any day made a legal holiday
by the laws of this Commonwealth or of the United States, such day shall be
omitted from the computation”); 5 U.S.C.A. § 6103(a) (listing Labor Day, the
first Monday in September (which in calendar year 2022, was September 5,
2022,) as a federal holiday).


                                           -6-
J-A29021-25



included mandatory terms of probation, was illegal.10 On February 14, 2025,

the Commonwealth filed an answer to Appellant’s petition, agreeing that

Appellant’s    sentence     was    illegal.11    Thereafter,   without   independent

consideration of the timeliness of Appellant’s petition, or whether it was

subject to a jurisdictional exception, the trial court, on April 29, 2025,

resentenced Appellant to an aggregate sentence of seven to 20 years’

____________________________________________


10 In his amended petition, Appellant asserted that the portion of his sentence

that included mandatory probationary sentences pursuant to 42 Pa.C.S.A
§ 9718.5 constituted an ex post facto violation of his constitutional rights
because Appellant’s criminal offenses occurred in 2012, and Section 9718.5
was not enacted until 2018. Amended PCRA Petition, 11/27/24, at ¶¶59-63.
Similarly, because his offenses occurred prior to December 20, 2012,
Appellant asserted that he was subject to registration under Subchapter I of
SORNA, as codified at 42 Pa.C.S.A. §§ 9799.51 – 9799.75, not Subchapter H
of SORNA, as the trial court ordered on October 25, 2021. Id. at ¶¶46-58;
see also Criminal Complaint, 5/26/13 (stating, the most recent sexual assault
occurred “approximately 10-12 months ago”).

To overcome the limitations period, Appellant raised the newly-discovered
facts exception to the one-year jurisdictional time-bar in which to file a timely
PCRA petition. Amended PCRA Petition, 11/27/24, at ¶¶7-24; see also 42
Pa.C.S.A. § 9545(b)(1)(ii). As discussed in greater detail infra, Appellant
asserted that Attorney McDermott, who represented Appellant upon
reinstatement of his post-sentence and direct appeal rights in Case CR-9076
and on direct appeal in Case CR-2243, was ineffective in that Attorney
McDermott allegedly misinformed Appellant that the period in which to file a
timely PCRA petition in Case CR-9076 would not begin to run until Appellant’s
direct appeal of the judgment of sentence in Case CR-2243 concluded. Id. at
¶17. Appellant maintained that his petition was timely because it was filed
within one year of “when he was no longer represented by Attorney
McDermott in [Case CR-9076 and Case CR-2243.]” Id. at ¶¶23-24.

11 An “agreement of the parties, however, does not suffice to vest a [PCRA]

court with jurisdiction.” Commonwealth v. Rivera, 324 A.3d 452, 467 (Pa.
2024).


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J-A29021-25



incarceration to be followed by six years’ probation.12         In fashioning its

sentence, the trial court imposed discretionary sentences of probation for

Appellant’s convictions of Sections 3123(b) and 3126(a)(7) of the Crimes

Code and subjected Appellant to lifetime registration as a sex offender under

Subchapter I of SORNA.              Appellant filed a post-sentence motion for

reconsideration of his sentence, which the trial court denied on May 13, 2025.

This appeal followed.13

       Appellant raises the following issue for our review:

       Whether the trial court erred by imposing a sentence that is
       unreasonable, excessive and an abuse of discretion in the
       following ways[:] (i) it exceeds what is reasonably necessary for
       the protection of the public; (ii) it exceeds what is reasonably
       necessary in light of the gravity of the offense as it relates to the
       impact on the life of the victim and on the community; and (iii)
       the trial court did not fully consider, and imposed an excessive
       sentence in light of[:] (a) the rehabilitative needs of [Appellant]
       and/or (b) [Appellant’s] character witness testimony and



____________________________________________


12 Although the PCRA court did not expressly enter an order granting
Appellant’s petition, it can be inferred from the trial court’s resentencing order
that the PCRA court elected to exercise its authority under the PCRA to
entertain Appellant’s claims of collateral relief on his revocation-of-probation
sentence.

13 Appellant was resentenced on April 29, 2025, and the notice of appeal was

filed on May 13, 2025. Because Appellant’s notice of appeal was filed within
30 days of imposition of Appellant’s April 29, 2025 revocation-of-probation
sentence, Appellant’s appeal is timely. See Wright, 846 A.2d at 734; see
also Pa.R.Crim.P. 708(E).

Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.


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J-A29021-25


       allocution, all of which is contrary to 42 Pa.C.S.[A.] § 9721(b)
       and/or 42 Pa.C.S.[A.] § 9725?

Appellant’s Brief at 7.14

       Preliminarily, we must address the timeliness of Appellant’s PCRA

petition filed on July 22, 2024, as this issue implicates our Court’s jurisdiction.

In re Payne, 129 A.3d 546, 555 n.12 (Pa. Super. 2015) (en banc) (stating,

“this Court may raise, sua sponte, issues concerning the timeliness of a PCRA

petition”), appeal denied, 145 A.3d 167 (Pa. 2016). It is well-established that,

if a PCRA petition is untimely, courts lack jurisdiction over the claims and

cannot grant relief.      Commonwealth v. Reid, 235 A.3d 1124, 1143 (Pa.

2020) (stating, “[w]ithout jurisdiction, [courts] simply do not have legal

authority to address the substantive claims” (citation and original quotation

marks omitted)). To be timely filed, a PCRA petition, including second and

subsequent petitions, must be filed within one year of the date a petitioner’s

judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1).

       As discussed supra, Appellant’s revocation-of-probation sentence in

Case CR-9076 became final on Tuesday, September 6, 2022, following

reinstatement of Appellant’s direct appeal rights on August 5, 2022, and the

expiration of time in which to file a timely notice of appeal. Brown, 943 A.3d

at 268; see also 42 Pa.C.S.A. § 9545(b)(3); McKeever, 947 A.2d at 786;
____________________________________________


14  Appellant’s issue challenges the discretionary aspects of his
revocation-of-probation sentence on the ground that the trial court imposed
an unreasonable and excessive sentence in light of the gravity of Appellant’s
offense and failed to consider Appellant’s rehabilitative needs.


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J-A29021-25



Pa.R.A.P. 903(a). Therefore, Appellant had until September 6, 2023, to file a

timely PCRA petition. Appellant filed the instant petition on July 22, 2024,

more than ten months after the expiration of time in which to file a timely

petition. As such, Appellant’s petition is patently untimely.

      If a PCRA petition is untimely, the jurisdictional time-bar can only be

overcome if the petitioner alleges and proves one of the three statutory

exceptions, as set forth in 42 Pa.C.S.A. § 9545(b)(1). Commonwealth v.

Spotz, 171 A.3d 675, 678 (Pa. 2017). The three narrow statutory exceptions

to the one-year time-bar are as follows: “(1) interference by government

officials in the presentation of the claim; (2) newly[-]discovered facts; and (3)

an after-recognized constitutional right.” Commonwealth v. Brandon, 51

A.3d 231, 233-234 (Pa. Super. 2012), citing 42 Pa.C.S.A. § 9545(b)(1)(i - iii).

A petition invoking an exception to the jurisdictional time-bar must be filed

within one year of the date that the claim could have been presented. 42

Pa.C.S.A. § 9545(b)(2). If a petitioner fails to invoke a valid exception to the

PCRA time-bar, courts are without jurisdiction to review the petition and

provide relief. Spotz, 171 A.3d at 676.

      Recently,   our   Supreme    Court      reiterated   that,   to   invoke   the

newly-discovered facts exception to the jurisdictional time-bar, a petitioner

must plead and prove that “1) the facts upon which the claim was predicated

were unknown to the petitioner and 2) [the facts] could not have been

ascertained by the exercise of due diligence.” Commonwealth v. Brown,

___ A.3d ___, 2026 WL 227113, at *12 (Pa. filed Jan. 28, 2026) (slip opinion)

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J-A29021-25



(emphasis and original quotation marks omitted); see also 42 Pa.C.S.A.

§ 9545(b)(1)(ii) (stating, a petitioner must allege and prove that “the facts

upon which the claim is predicated were unknown to the petitioner and could

not have been ascertained by the exercise of due diligence”).

       In his amended petition, Appellant invoked the newly-discovered facts

exception, asserting that “based upon his discussion with Attorney McDermott

about [quashal] of the appeal [in Case CR-9076], that the one-year

[jurisdictional time-bar] under the PCRA statute would start to run [in

Case CR-9076], and also [in Case CR-2243], upon the final disposition of the

timely appeal [in Case CR-2243], which was not quashed[.]” Amended PCRA

Petition, 11/27/24, at ¶17.              It    was   Appellant’s   understanding   that

Case CR-2243 and Case CR-9076 were “combined” or “consolidated” and that

both direct appeals had to be resolved before he was permitted to proceed

pro se with the filing of a PCRA petition. Id. at ¶17 and Exhibit B (Appellant

stating, “[o]nce you forward me the final disposition of the pending appeal [in

Case CR-2243] I will file a PCRA petition” (capitalization corrected; extraneous

capitalization omitted)).15 Appellant stated that “he had no reason to believe

that this advice [from Attorney McDermott] was inaccurate[.]” Id. at ¶18. In
____________________________________________


15 We note that, in the June 16, 2023 letter directed to Attorney McDermott,

Appellant incorrectly identified the “1081 WDA 2022” docket number assigned
by this Court as applying to both the appeal filed in Case CR-9076 and the
appeal filed in Case CR-2243.          This Court assigned docket number
1081 WDA 2022 to the appeal filed in Case CR-2243 and docket number
1082 WDA 2022 to the appeal filed in Case CR-9076. The two separate
appeals were never consolidated by this Court.


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J-A29021-25



other words, Appellant contends that inaccurate post-quashal advice relayed

by Attorney McDermott, in his role as post-sentence and direct appeal counsel

in Case CR-9076, constituted ineffective assistance of counsel that qualified

as a newly-discovered fact for purpose of overcoming the PCRA jurisdictional

time-bar. Appellant reasoned that Attorney McDermott abandoned Appellant

and deprived him of his ability to seek collateral relief by conveying incorrect

legal advice regarding the deadline by which to file a timely PCRA petition.

We cannot agree.

       It is well-established that, except in limited circumstances where

counsel’s ineffectiveness resulted in a complete deprivation of appellate

review, “counsel’s ineffectiveness may not be invoked as a newly-discovered

‘fact’ for purpose of invoking the [Section] 9545(b)(1)(ii) exception.”

Commonwealth v. Peterson, 192 A.3d 1123, 1129 (Pa. 2018), citing

Commonwealth v. Gamboa-Taylor, 753 A.2d 780 (Pa. 2000) and its

progeny; see also Commonwealth v. Bennett, 930 A.2d 1264, 1273 (Pa.

2007).16     Pennsylvania jurisprudence addressing ineffective assistance of
____________________________________________


16 The Peterson Court identified limited circumstances in which counsel’s
actions or inactions validly triggered the newly-discovered facts exception to
the PCRA jurisdictional time-bar because a complete deprivation of appellate
review resulted from counsel’s deficient performance. The instances occurred
where “counsel did not file a [Rule] 1925(b) statement and waived all issues,
thereby denying the defendant his constitutional right to direct appeal[,]”
counsel “did not file a petition for allowance of appeal, as requested by the
defendant, and denied his client to right to seek discretionary review with our
Supreme Court[,]” counsel “did not file a direct appeal, despite [the]
defendant’s request[,]” counsel filed “an untimely [Rule] 1925(b)



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J-A29021-25



counsel as a viable basis to invoke a timeliness exception has evolved

overtime. Gamboa-Taylor was one of the first cases to address the issue

and, ultimately, rejected attorney ineffectiveness, categorically, as a possible

newly-discovered fact for purpose of the timeliness exception. Several years

later,   Bennett,     affirmed     by   Peterson,   “distinguished   between   the

Gamboa-Taylor line of cases, pursuant to which petitioners assert claims of

ineffectiveness for partial deprivations of appellate review, i.e., attorney errors

in narrowing the issues for review, from instances in which petitioners assert

claims of ineffectiveness resulting in complete deprivations of appellate

review, i.e., attorney errors that resulted in petitioners being dispossessed of

any opportunity for appellate review.” Peterson, 192 A.3d at 1129 (emphasis

in original), citing Bennett, 930 A.2d at 1273.             The Bennett Court

“recognized a distinction between situations in which counsel has narrowed

the ambit of appellate review by the claims he [or she] has raised or foregone

[(the Gamboa-Taylor line of cases)] versus those instances [where counsel

has completely deprived the defendant of appellate review (the Bennett line

of cases)].” Peterson, 192 A.3d at 1129.
____________________________________________


statement[,]” counsel did not file “an appellate brief so [the] defendant did
not obtain direct review[,]” counsel filed “an appellate brief that raised only
waived issues[, resulting] in a foreclosure of appellate review[,]” and counsel’s
“untimely filing of [a] first PCRA petition[, which] completely foreclosed [the
defendant] from obtaining review of his collateral claims[.]” Peterson, 192
A.3d at 1131-1132 (citations and original brackets omitted). These examples
are generally characterized by both an existing attorney-client relationship,
together with a failure by counsel to carry out or effectuate a requested task
on behalf of his or her client.


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        In reaching its conclusion, the Bennett Court held “that the difference

in degree between partial and complete deprivations of review is significant,

as the latter is the functional equivalent of having no counsel at all. This denial

of counsel constitutes a form of ineffectiveness per se, pursuant to which

prejudice must be presumed because the process itself has been rendered

presumptively unreliable under the Sixth Amendment.” Id. (original quotation

marks omitted), citing Bennett, 930 A.2d at 1273. As our Supreme Court

has steadfastly emphasized, a crucial distinction for purpose of the

newly-discovered     facts   exception   involving   allegations   of   ineffective

assistance of counsel is that, to constitute ineffectiveness per se and, thus,

trigger an exception to the one-year jurisdictional time-bar, counsel’s actions

or inactions must result in a complete deprivation of review.           Otherwise,

claims of alleged ineffectiveness that result only in a partial deprivation of

review do not constitute an exception to the jurisdictional time-bar because

the ineffectiveness does not give rise to per se ineffectiveness. See Bennett,

930 A.2d at 1272-1274; see also Rosado, 150 A.3d 425, 428-434 (Pa.

2016); Peterson, 192 A.3d at 1131.                Thus, “[i]n cases involving

ineffectiveness per se, [Section 9545](b)(1)(ii) is a limited extension of the

one-year time requirement under circumstances when a petitioner has not

had the review to which he [or she] was entitled due to a circumstance that

was beyond his [or her] control.” Peterson, 192 A.3d at 1130 (emphasis

added; original quotation marks omitted), quoting Bennett, 930 A.2d at

1273.

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J-A29021-25



      Moreover, from our review of the Gamboa-Taylor and Bennett lines

of cases, we are able to glean that, not only must the ineffectiveness cause

the complete deprivation of appellate review in order to trigger the

newly-discovered facts exception, but an attorney-client relationship between

counsel and the defendant ordinarily must exist at the time of the alleged per

se ineffectiveness.   It is because of this attorney-client relationship, and

counsel’s concomitant duty to the defendant, that counsel’s failure to take a

promised or requested action can result in the complete deprivation of

appellate review. Without the existence of such a relationship, counsel is not

obligated to act on behalf of his or her former-client and, therefore, cannot be

found to have deprived the defendant of appellate review. In other words,

counsel cannot “abandon” a defendant for purposes of the newly-discovered

fact exception without first owing a duty to the defendant, pursuant to an

existing attorney-client relationship.

      “The Sixth Amendment to the United States Constitution provides that

‘in all criminal prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence.’” Rosado, 150 A.3d at 429 (brackets

omitted), citing U.S. CONST. amend. VI.        The right to counsel has been

interpreted to require the effective assistance of counsel. Rosado, 150 A.3d

at 429. Moreover, the right to counsel extends to state proceedings via the

Fourteenth Amendment’s guarantee of due process, when the defendant may

be subject to a sentence of imprisonment. Id. at 429 n.6, citing Argersinger

v. Hamlin, 407 U.S. 25 (1972).

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      Pennsylvania Rule of Criminal Procedure 122(B)(2) states that, when

counsel is appointed, “the appointment shall be effective until final judgment,

including any proceedings upon direct appeal.”          Pa.R.Crim.P. 122(B)(2)

(emphasis added). Thus, “counsel retains his or her appointment until final

judgment, which includes all avenues of appeal through the Supreme Court of

Pennsylvania.” Pa.R.Crim.P. 122 at Official Comment.

      Once a defendant has exhausted all avenues of direct appeal and his or

her judgment becomes final, the defendant no longer has a constitutional right

to the assistance of counsel. Peterson, 192 A.3d at 1130 n.3 (explaining

that, neither the United States Constitution, nor the Pennsylvania Constitution

guarantee a defendant the right to counsel during collateral review). Rather,

Pennsylvania Rule of Criminal Procedure 904 provides a first-time PCRA

petitioner a rule-based right to the assistance of counsel. See Pa.R.Crim.P.

904 (governing the appointment of PCRA counsel for first-time PCRA

petitioners). When counsel has been appointed in a PCRA proceeding, “the

appointment of counsel shall be effective throughout the post-conviction

collateral proceedings, including any appeal from disposition of the petition for

post-conviction collateral relief.” Pa.R.Crim.P. 904(F)(2). Thus, based upon

a plain-reading of Rules 122 and 904, the appointment of defense counsel in

a criminal proceeding terminates, and no attorney-client relationship exists,

once the judgment of sentence becomes final. As such, once the judgment of

sentence becomes final and the attorney-client relationship has ended,

appointed counsel no longer owes a constitutional duty to represent the

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defendant. If the defendant later seeks collateral review, the appointment of

PCRA counsel is governed by Rule 904 and representation by appointed

counsel begins anew.17

        Here, the record demonstrates that on August 5, 2022, the PCRA court

granted Appellant’s petition and reinstated his post-sentence and direct appeal

rights nunc pro tunc.        Attorney McDermott, on behalf of Appellant, filed a

post-sentence       motion      challenging          Appellant’s    October       25,     2021

revocation-of-probation sentence. The trial court denied the post-sentence

motion on August 12, 2022. Attorney McDermott then filed a notice of appeal

on September 14, 2022. Attorney McDermott filed a Rule 1925(b) statement

on October 3, 2022, and an appellate brief with this Court on February 21,

2023.    On March 17, 2023, this Court quashed Appellant’s appeal on the

ground     that    the    appeal     was       untimely.           As   such,     Appellant’s

revocation-of-probation sentence became final on September 6, 2022, as

discussed supra.

        Once   Appellant      exhausted        his    direct   appeal    rights     and    his

revocation-of-probation sentence became final on September 6, 2022,

Attorney McDermott’s constitutional duty to represent Appellant on direct

appeal in Case CR-9076 ended. Attorney McDermott was not obligated to file

a PCRA petition on Appellant’s behalf because Attorney McDermott no longer
____________________________________________


17  Because the appointment of defense counsel and PCRA counsel are
governed by separate rules of criminal procedure, the trial court/PCRA court
is required to enter distinct orders designating the appointment of counsel.


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represented Appellant.   Moreover, as indicated in the June 16, 2023 letter

directed to Attorney McDermott, Appellant understood that it was his

obligation to file a PCRA petition pro se if he sought collateral review.

Appellant, however, did not file his pro se petition until July 22, 2024, more

than ten months after the deadline by which to file a timely petition.     Any

mistaken information Appellant may have gleaned from his own interpretation

of the law or from Attorney McDermott regarding the filing of a timely petition

cannot serve as a newly-discovered fact to overcome the jurisdictional

time-bar because Attorney McDermott no longer had a duty to represent

Appellant once the revocation-of-probation sentence became final on

September 6, 2022, and the attorney-client relationship ended.       In short,

there was no complete abandonment by counsel in the case sub judice, as the

obligation to file a timely PCRA petition (or to seek the appointment of PCRA

counsel) rested entirely with Appellant. Therefore, Appellant failed to plead

and prove the newly-discovered facts exception to the PCRA one-year

jurisdictional time-bar. As such, the PCRA court was without jurisdiction to

grant collateral relief in the form of a new sentencing proceeding that,

ultimately, resulted in Appellant’s April 29, 2025 revocation-of-probation

sentence. Therefore, the PCRA court’s decision to grant collateral relief and

convene a new sentencing proceeding and the subsequent April 29, 2025

revocation-of-probation sentence are null and void ab initio because the PCRA

court did not have jurisdiction to grant relief. Fantauzzi, 275 A.3d at 997-998

Accordingly, we vacate the April 29, 2025 revocation-of-probation sentence,

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as well as the PCRA court’s order granting collateral relief, and remand this

matter for re-imposition of the October 25, 2021 revocation-of-probation

sentence.   Moreover, it follows that, because Appellant’s April 29, 2025

revocation-of-probation sentence is a legal nullity, he could not appeal that

determination and, therefore, we are without jurisdiction to address the merits

of Appellant’s discretionary sentencing claim.

      Revocation-of-probation sentence vacated.        Case remanded with

instructions. Jurisdiction relinquished.




DATE: 4/17/2026




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