Commonwealth v. Swartzfager, 2012 PA Super 249, November 20, 2012 (9 pages)
Swartzfager pled guilty to attempted rape, was sentenced, and appealed to the Superior Court, which affirmed the judgment of conviction on October 11, 2000. The Supreme Court was not asked to hear the appeal, and on October 19, 2001, Swartzfager filed a PCRA petition. Appointed counsel, forgetting that a Superior Court judgment does no become final for thirty days after its filing, filed a petition with the court of common pleas asking to be removed because the petition was untimely. The common pleas court issues a notice of intent to dismiss the petition pursuant to Pa.R.Crim.pro. 907 on April 2, 2003, and not waiting for the actual dismissal to occur, Swartzfager filed an appeal tot the Superior Court. Predictably, that court dismissed the appeal as interlocutory and premature, as the PCRA petition had not yet been dismissed. The common pleas court, which even went to the trouble of writing an opinion, still did not bother to enter an order dismissing the PCRA petition.
On December 11, 2011, the Defendant filed yet another PCRA petition, and once again, the common pleas court issued a Rule 907 notice of intention to dismiss, followed by yet another notice of appeal by Swartzfager. This time though the common pleas court entered an order dismissing the second PCRA petition. The Superior Court however found that that because the first PCRA petition was both timely and had never been dismissed, the matter should be remanded to the common pleas court for a hearing on the original PCRA petition, which was both timely and had never been properly disposed of.
(This is not an uncommon occurrence. I have been appointed to represent defendants who, upon examination by either myself or the court, have been found to have years old active PCRA petitions that were never properly dismissed. Litigating those old petitions has proven impossible though, as counsels’ files disappear and memories fade. Counsel seeking dismissal of PCRA petitions— whatever side of the courtroom they may be on— should not close their files until they are sure the petitions have been dismissed and their clients have an opportunity to file timely appeals.)
The case may be found here.