Com. v. Silva, F. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FREDDIE SILVA
Appellant No. 2273 MDA 2015
Appeal from the Order Entered November 24, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003369-2007
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED AUGUST 22, 2016
Appellant, Freddie Silva, appeals pro se from the order entered in the
Dauphin County Court of Common Pleas, which denied his pro se petition for
collateral relief (labeled as a petition for writ of coram nobis). On December
19, 2007, Appellant entered a negotiated guilty plea to failure to comply
with sex offender registration requirements. The court imposed the
negotiated sentence of five years’ probation. On June 21, 2010, the court
revoked Appellant’s probation based on Appellant’s inappropriate sexual
contact with his girlfriend’s 11-year-old daughter. The court resentenced
Appellant on November 15, 2010, to 3½-7 years’ imprisonment. Appellant
did not pursue direct review. On September 28, 2015, Appellant filed a pro
se petition for writ of coram nobis, claiming his conviction and sentence were
illegal based on our Supreme Court’s decision in Commonwealth v.
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Neiman, 624 Pa. 53, 84 A.3d 603 (2013).1 On November 24, 2015, the
court denied Appellant’s petition for relief. Appellant timely filed a pro se
notice of appeal on December 21, 2015.2
Preliminarily, any petition for post-conviction collateral relief will
generally be considered a PCRA petition, regardless of how the applicant
captions the petition, if the petition raises issues cognizable under the PCRA.
See Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998); 42
Pa.C.S.A. § 9542 (stating PCRA shall be sole means of obtaining collateral
relief and encompasses all other common law and statutory remedies for
same purpose). Additionally:
Pursuant to the rules of criminal procedure and interpretive
case law, a criminal defendant has a right to
representation of counsel for purposes of litigating a first
PCRA petition through the entire appellate process. …
* * *
While the right to legal representation in the PCRA context
is not constitutionally derived, the importance of that right
____________________________________________
1
The Neiman Court held that Act 152 of 2004 (“Act 152”) (which, inter alia,
made various amendments to the Crimes Code to create criminal offenses
for individuals subject to sexual offender registration requirements who fail
to comply) violated the single subject rule of Article III, Section 3 of the
Pennsylvania Constitution. The Court concluded the portions of Act 152
amending Pennsylvania’s Megan’s Law were not severable from the other
provisions of Act 152; and the Court struck Act 152 in its entirety. See id.
2
On December 29, 2015, the court ordered Appellant to file a Pa.R.A.P.
1925(b) statement. The certified record does not contain Appellant’s concise
statement. Based on our disposition, we need not decide if Appellant timely
filed his Rule 1925(b) statement.
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cannot be diminished merely due to its rule-based
derivation. …
Commonwealth v. Robinson, 970 A.2d 455, 457-59 (Pa.Super. 2009) (en
banc). Importantly, “[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, 799 A.2d 848, 851
(Pa.Super. 2002) (emphasis added). “In such cases, counsel is appointed
principally to determine whether the petition is indeed untimely, and if so,
whether any exception to the timeliness requirements…applies.” Id. at 852.
See also Pa.R.Crim.P. 904(C), (F)(2) (stating when unrepresented
defendant shows he is unable to afford or procure counsel, court shall
appoint counsel to represent defendant on first PCRA petition).
Instantly, Appellant claims his conviction and sentence are illegal
based on the Supreme Court’s decision in Neiman. Appellant’s issue is
cognizable under the PCRA. See generally Commonwealth v. Fowler,
930 A.2d 586 (Pa.Super. 2007), appeal denied, 596 Pa. 715, 944 A.2d 756
(2008) (holding any collateral attack on legality of sentence must be raised
in PCRA petition). See also 42 Pa.C.S.A. § 9543(a)(2) (explaining
challenges to legality of conviction and sentence are cognizable under
PCRA). Thus, the court should have treated Appellant’s prayer for collateral
relief as a first PCRA petition. See id.; Fowler, supra. Further, the record
suggests Appellant is indigent and entitled to appointment of counsel. See
Pa.R.Crim.P. 904(C), (F)(2); Robinson, supra; Perez, supra. Therefore,
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the best resolution of this case is to vacate and remand for the court to
evaluate Appellant’s indigency; if Appellant qualifies as indigent, the court
must appoint counsel for Appellant and direct appointed counsel to file an
amended PCRA petition or an otherwise appropriate filing. Accordingly, we
vacate and remand for further proceedings.
Order vacated; case remanded with instructions. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2016
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