Com. v. O'Hara, D. ( 2016 )

J-S67037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DENNIS WILLIAM O’HARA,
Appellant No. 674 MDA 2015
Appeal from the Order Entered January 20, 2015
in the Court of Common Pleas of York County
Criminal Division at No.: CP-67-CR-0005631-1999
BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*
JUDGMENT ORDER BY PLATT, J.: FILED JANUARY 13, 2016
Appellant, Dennis William O’Hara, appeals pro se from the order
denying reconsideration of the court’s previous denial of his “Motion to
Vacate Sentence.” Appellant’s motion should have been treated as a PCRA
petition. Because this is Appellant’s first PCRA petition, and the record
confirms he is indigent, under controlling authority the court should have
appointed counsel for him. We vacate and remand for the appointment of
counsel.
On August 26, 2014, Appellant filed a pro se “Notice of Motion to
Vacate Sentence” seeking to vacate the sentence imposed on June 12,
2000. The court imposed a sentence concurrent to one he had received in
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S67037-15
the previous month after a separate plea in another county (Cumberland).
Appellant concedes that his negotiated plea was honored. (See Notice of
Motion to Vacate Sentence, 8/26/14). Nevertheless, he complains that
federal authorities are treating the two guilty pleas separately, increasing
his federal sentence.
The trial court denied the motion to vacate, rejecting any breach of the
plea agreement, and noting it lacked jurisdiction over federal courts. (See
Order Denying Motion to Vacate Sentence, 11/03/14). In the order
Appellant purports to appeal from, the trial court denied reconsideration of
its prior order, referencing the order dated October 31, 2014 (filed
11/03/14) and adding that Appellant had filed an untimely post-sentence
motion under Pa.R.Crim.P. 720(a). (See Order Denying Reconsideration,
1/20/15).
We are constrained to conclude that the trial court should have treated
the motion as a first PCRA petition. See Commonwealth v. Johnson, 803
A.2d 1291, 1293 (Pa. Super. 2002) (“any petition filed after the judgment of
sentence becomes final will be treated as a PCRA petition”) (citation
omitted). Therefore, the court should have appointed counsel for Appellant’s
first PCRA petition. See Pa.R.Crim.P. 904(C) (“the judge shall appoint
counsel to represent the defendant on the defendant’s first petition for post-
conviction collateral relief.”). An indigent petitioner is entitled to counsel
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without regard to the merits of the petition. See Commonwealth v.
Kutnyak, 781 A.2d 1259, 1262 (Pa. Super. 2001).
“It is well-established that a first-time PCRA petitioner whose petition
appears untimely on its face is entitled to representation for assistance in
determining whether the petition is timely or whether any exception to the
normal time requirements is applicable.” Commonwealth v. Ramos, 14
A.3d 894, 895 (Pa. Super. 2011) (citations omitted).
Accordingly, we vacate and remand for the appointment of counsel
and proceedings consistent with this decision.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2016
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