Com. v. Delvalle-Rivera, E. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
v.
EDGARDO DELVALLE-RIVERA
Appellant No. 1435 MDA 2015
Appeal from the Order July 27, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0001795-2012
CP-06-CR-002495-2012
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
JUDGMENT ORDER BY PANELLA, J. FILED AUGUST 15, 2016
Appellant, Edgardo Delvalle-Rivera, who failed to file a direct appeal
from his judgment of sentence and thereafter failed to timely avail himself of
the Post Conviction Relief Act (PCRA),1 appeals pro se from the order of the
Court of Common Pleas of Berks County, which denied his pro se “Motion to
Modify and Correct Illegal Sentence Nunc Pro Tunc.” In the motion, Delvalle-
Rivera requested that the trial court vacate his judgment of sentence based
on his contention that he is serving an illegal sentence. See “Motion to
Modify and Correct Illegal Sentence Nunc Pro Tunc,” 7/24/15, at 3-8. The
trial court did not treat this motion as a PCRA petition; however, it should
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1
42 Pa.C.S.A. §§ 9541-9546.
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have. See 42 Pa.C.S.A. § 9542; Commonwealth v. Eller, 807 A.2d 838,
842 (Pa. 2002); Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001).
In this Court’s June 29, 2016 order, we noted that it is unclear from
the record whether Delvalle-Rivera is indigent. See Commonwealth v.
Delvalle-Rivera, 1435 MDA 2015, at 1 (Pa. Super., filed June 29, 2016)
(order). We remanded to the trial court to make this determination, on the
basis that if Delvalle-Rivera is indigent, he is entitled to the appointment of
counsel. See id.; see also Pa.R.Crim.P. 940(C) (“When an unrepresented
defendant satisfies the judge that the defendant is unable to afford or
otherwise procure counsel, the judge shall appoint counsel to represent the
defendant on the defendant’s first petition for [PCRA] relief.”). Following a
hearing, the court determined that Delvalle-Rivera is indigent. See
Commonwealth v. Delvalle-Rivera, 1435 MDA 2015, at 1 (Berks Comm.
Pl., filed July 15, 2016) (order).
We remand to the trial court for the appointment of counsel. Appointed
counsel shall review the record and either file an amended PCRA petition or
move to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc).
Order vacated. Case remanded for proceedings consistent with this
judgment order. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2016
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