Com. v. White, L. ( 2018 )


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  • J-S58004-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                            :
    :
    :
    LAWRENCE WHITE                             :
    :
    Appellant            :   No. 1467 WDA 2017
    Appeal from the Order Entered August 31, 2017
    In the Court of Common Pleas of Allegheny County Criminal Division at
    No(s): CP-02-CR-0007825-2009
    BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY OLSON, J.:                               FILED OCTOBER 22, 2018
    Appellant, Lawrence White, appeals pro se from the order entered on
    August 31, 2017. We vacate the trial court’s order and remand.
    A jury found Appellant guilty of firearms not to be carried without a
    license, receiving stolen property, and false identification to law enforcement
    authorities.1,   2    On July 11, 2013, the trial court sentenced Appellant to serve
    an aggregate term of 24 to 48 months in prison. We affirmed Appellant’s
    judgment of sentence on May 28, 2014 and the Pennsylvania Supreme Court
    denied Appellant’s petition for allowance of appeal on November 5, 2014.
    ____________________________________________
    1   18 Pa.C.S.A. §§ 6106, 3925, and 4914, respectively.
    2 The trial court also found Appellant guilty of various motor vehicle code
    violations.
    J-S58004-18
    Commonwealth v. White, 
    104 A.3d 62
     (Pa. Super. 2014) (unpublished
    memorandum) at 1-15, appeal denied, 
    102 A.3d 985
     (Pa. 2014).
    On January 24, 2017 – which was after Appellant’s judgment of
    sentence became final – Appellant filed a pro se “Motion for Time Credit and
    Corrected Commitment” in the trial court.        The trial court did not appoint
    counsel to represent Appellant. Instead, the trial court denied Appellant’s pro
    se motion on August 31, 2017, reasoning that “the claims raised by
    [Appellant] in the [motion] are frivolous, and any right [Appellant] had to
    assert a challenge to his sentence was waived by virtue of the fact that he did
    not raise these claims at the time of sentencing or in a post-sentence motion.”
    Trial Court Order, 8/31/17, at 1; Trial Court Opinion, 6/7/18, at 6.
    Appellant filed a timely, pro se notice of appeal. We must now vacate
    the trial court’s order and remand.
    As noted above, after Appellant’s judgment of sentence became final
    and while Appellant was no longer represented by counsel, Appellant filed a
    pro se “Motion for Time Credit and Corrected Commitment.” Since this motion
    was filed after Appellant’s judgment of sentence became final, the trial court
    should have sua sponte treated the motion as a first petition filed under the
    Post-Conviction   Relief   Act   (PCRA),    42     Pa.C.S.A.   §§   9541-9546.
    Commonwealth v. Johnson, 
    803 A.2d 1291
    , 1293 (Pa. Super. 2002) (“the
    PCRA provides the sole means for obtaining collateral review, and [] any
    petition filed after the judgment of sentence becomes final will be treated as
    a PCRA petition”). Further, since Appellant has at all times been indigent and
    -2-
    J-S58004-18
    since this was Appellant’s first PCRA petition, the trial court should have
    appointed counsel to represent Appellant. See Pa.R.Crim.P. 904(C).
    In this case, we must conclude that the trial court erred when it failed
    to appoint counsel to represent Appellant on his first PCRA petition. “[I]t is
    undisputed that first time PCRA petitioners have a rule-based right to
    counsel.” Commonwealth v. Figueroa, 
    29 A.3d 1177
    , 1180 n.6 (Pa. Super.
    2011).    This right to counsel “exists throughout the post-conviction
    proceedings, including any appeal from [the] disposition of the petition for
    post-conviction relief.” Commonwealth v. Quail, 
    729 A.2d 571
    , 573 (Pa.
    Super.   1999)   (internal    citations   and   quotations   omitted);   see also
    Pa.R.Crim.P. 904(C).
    Moreover, although Appellant did not assert in his 1925(b) statement
    that the trial court erred in failing to treat his motion as a first PCRA petition
    and in failing to appoint counsel, our Supreme Court has explained that “[t]he
    denial of PCRA relief cannot stand unless the petitioner was afforded the
    assistance of counsel.”      Commonwealth v. Albrecht, 
    720 A.2d 693
    , 699
    (Pa. 1998).   Thus, we have held 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.” Commonwealth v. Stossel, 
    17 A.3d 1286
    , 1290 (Pa. Super. 2011).
    In the case at bar, Appellant was deprived of his rule-based right to
    have appointed counsel for his first PCRA petition. As such, we vacate the
    -3-
    J-S58004-18
    order dismissing Appellant’s PCRA petition and remand this case to the PCRA
    court.
    Order vacated. Case remanded. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/22/2018
    -4-
    

Document Info

Docket Number: 1467 WDA 2017

Filed Date: 10/22/2018

Precedential Status: Precedential

Modified Date: 10/22/2018