J-S11036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    RONNIE LEE SHAW                            :
                                               :
                      Appellant                :   No. 1235 WDA 2016

                  Appeal from the Order Entered July 21, 2016
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001316-2011



BEFORE:      OLSON, RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                             FILED March 1, 2017

        Appellant appeals pro se from the order entered in the Court of

Common Pleas of Erie County denying his “Motion to Modify Costs Nunc Pro

Tunc.” After a careful review, we are constrained to vacate the July 21,

2016, order and remand for further proceedings consistent with this

decision.

        The relevant facts and procedural history are as follows: Following an

argument, Appellant shot the victim, who suffered a bullet wound to his right

thigh. Represented by private counsel, Appellant proceeded to a jury trial




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*
    Former Justice specially assigned to the Superior Court.
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and, on June 20, 2012, a jury convicted Appellant of aggravated assault,

reckless endangerment, and possessing instruments of crime.1

        On August 16, 2012, following a hearing, the trial court imposed a

sentence of twenty-one months to forty-two months in prison for aggravated

assault, and directed Appellant to pay restitution to the victim in the amount

of $675.00, as well as pay the costs of prosecution, including a total of

$799.00 for “various laboratory costs[.]”        N.T., 8/16/12, at 21. The trial

court imposed a sentence of twelve months to twenty-four months in prison

for possessing instruments of crime; the sentence to run consecutively to

the sentence imposed for aggravated assault. The trial court imposed no

further penalty for reckless endangerment.

        Appellant filed a timely post-sentence motion seeking a new trial on

the basis the trial court erred in denying Appellant’s motion for a mistrial

after the Commonwealth introduced testimony and evidence regarding a gun

that was later suppressed by the trial court. Appellant further averred the

trial court erred in not permitting a witness to exercise his Fifth Amendment

right against self-incrimination. Appellant also requested a modification of

his sentence on the basis his aggregate sentence of thirty-three months to

sixty-six months in prison was excessive. By order entered on August 28,




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1
    18 Pa.C.S.A. §§ 2702, 2705, and 907, respectively.



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2012, the trial court denied Appellant’s post-sentence motion, and Appellant

filed a timely, counseled direct appeal to this Court.

       On direct appeal, Appellant’s sole claim was that the trial court erred in

denying his motion for a mistrial as it related to the Commonwealth’s

introduction of evidence and testimony regarding the gun. Finding no relief

was due, this Court affirmed Appellant’s judgment of sentence on November

19, 2013. See Commonwealth v. Shaw, No. 1418 WDA 2012 (Pa.Super.

filed 11/19/13) (unpublished memorandum). Appellant did not file a petition

for allowance of appeal with our Supreme Court.

       On July 5, 2016, Appellant filed a pro se motion entitled “Motion to

Modify Costs Nunc Pro Tunc.”2 Therein, Appellant argued that ballistics tests

were performed on weapons seized from his home; however, the trial court

later suppressed the weapons on the basis they were illegally seized by the

police.   Accordingly, Appellant argued that, at the time of sentencing, the

trial court had no authority to direct Appellant to pay $799.00 in laboratory

costs for the ballistics testing, and thus, Appellant requested the trial court

“remove” the $799.00 laboratory costs from Appellant’s sentence.            See

Appellant’s Motion to Modify Costs Nunc Pro Tunc, filed 7/11/16. By order
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2
  Although Appellant’s pro se motion was docketed on July 11, 2016, the
record suggests Appellant handed it to prison authorities on July 5, 2016.
Accordingly, pursuant to the prisoner mailbox rule, we shall deem
Appellant’s PCRA petition to have been filed on July 5, 2016. See
Commonwealth v. Patterson, 931 A.2d 710 (Pa.Super. 2007) (discussing
prisoner mailbox rule).



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entered on July 21, 2016, the trial court denied Appellant’s motion, and

Appellant filed a timely pro se notice of appeal to this Court.

      Initially, we conclude the lower court should have treated Appellant’s

motion as a collateral petition filed under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.          Under established Pennsylvania

precedent, “the PCRA is intended to be the sole means of achieving post-

conviction relief.” Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.Super.

2013). Thus, issues that are cognizable under the PCRA must be raised in a

timely PCRA petition, and a petitioner may not escape the PCRA’s mandates

by titling his petition a “motion.” See id.

      A claim is cognizable under the PCRA if it challenges the petitioner's

conviction, sentence, or the effectiveness of counsel during the plea process,

trial, appeal, or PCRA review. 42 Pa.C.S.A. § 9543. In the case sub judice,

Appellant’s argument is premised upon a claim that the trial court did not

have the authority to impose the laboratory fees at issue, and therefore, he

has presented a legality of sentencing claim.        See Commonwealth v.

Garzone, 993 A.2d 306, 316 (Pa.Super. 2012) (“[I]nasmuch as [the]

[a]ppellant’s argument is premised upon a claim that the trial court did not

have the authority to impose the costs at issue, [the] [a]ppellant has




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presented      a   legality    of    sentencing   claim.”)   (citations   omitted)).

Accordingly, the PCRA is the sole avenue for Appellant to gain relief. 3

       With this in mind, we note that this is Appellant’s first PCRA petition,

and the petition is facially untimely.4           Nevertheless, we must address

whether counsel should have been appointed to assist Appellant, since the

instant matter constituted his first PCRA petition.

       An indigent defendant is entitled to appointment of counsel for his first

PCRA petition.      Commonwealth v. Smith, 572 Pa. 572, 818 A.2d 494

(2003). This rule-based right to counsel persists throughout the PCRA

proceedings, even if the petition is facially untimely or the petition does not

present a colorable claim.          See id.    Additionally, it is the PCRA court’s
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3
   We note that “[o]ur standard of review of the denial of PCRA relief is
clear; we are limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and
quotation marks omitted).
4
  The PCRA provides that a PCRA petition shall be filed within one year of the
date the underlying judgment becomes final, which occurs “at the conclusion
of direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3). See 42 Pa.C.S.A.
§ 9545(b)(1). Here, Appellant’s judgment of sentence became final on
December 19, 2013, thirty days after this Court affirmed his judgment of
sentence and the time for filing a petition for allowance of appeal with our
Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113(e).
Thus, Appellant had until approximately December 19, 2014, to file a timely
PCRA petition. Appellant filed the instant petition on July 5, 2016, and
therefore, it is patently untimely. Further, Appellant did not plead any of the
exceptions set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).




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responsibility “before [disposing] of a first [PCRA[ petition...[to] first make a

determination as to the petitioner’s indigence and if the petitioner is

indigent, the court must appoint counsel.” Commonwealth v. Van Allen,

597 A.2d 1237, 1239 (Pa.Super. 1991).

       Here, the lower court failed to determine whether Appellant was

entitled to court-appointed counsel for purposes of the PCRA,5 did not

appoint counsel, and did not conduct a colloquy to determine whether

Appellant waived his right to counsel.           Since the lower court failed in this

regard, we are constrained to vacate the lower court’s July 21, 2016, order

and remand for further proceedings consistent with this decision.

       Order vacated; Case remanded; Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2017




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5
  We recognize Appellant filed in the lower court a petition to proceed in
forma pauperis, and the lower court denied the petition on July 21, 2016.
However, we have not been provided with the lower court’s reasons for
denying the petition and, as indicated supra, the lower court failed to
recognize the instant proceedings constituted Appellant’s first PCRA petition.



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