J-S32001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERIC SCOTT HECK                            :
                                               :
                       Appellant               :   No. 1455 MDA 2017

                  Appeal from the PCRA Order August 22, 2017
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0004604-2009


BEFORE:      PANELLA, J., NICHOLS, J., and PLATT, J.

JUDGMENT ORDER BY PANELLA, J.                      FILED SEPTEMBER 07, 2018

        Eric Scott Heck appeals pro se from the order entered in the Dauphin

County Court of Common Pleas, denying as untimely his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. Because the PCRA court failed to appoint counsel, we must vacate the

PCRA order and remand for the appointment of counsel.

        Briefly, the facts and procedural history of this case are as follows. Heck

was convicted of criminal trespass and related offenses, and sentenced to

11½-23 months’ incarceration. Heck twice violated the terms of his probation,

and was resentenced both times. At the second resentencing, the trial court

imposed a period of 4-8 years’ incarceration. Heck did not file a direct appeal.

Instead, he filed the untimely, pro se PCRA petition at issue here.
____________________________________________


   Retired Senior Judge assigned to the Superior Court.
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      In his petition, Heck argued the resentencing court lacked jurisdiction

to modify his sentence after his notice of appeal to this Court was docketed.

And he asserted the resentencing court erred by failing to issue him credit for

time previously served. The PCRA court issued notice pursuant to Pa.R.Crim.P.

907, and ultimately dismissed Heck’s petition without a hearing. In its

memorandum opinion, the PCRA court stated Heck’s petition was untimely,

and he failed to plead or prove the applicability of one of the PCRA’s three

timeliness exceptions. The PCRA court also found that Heck’s issues were

meritless.

      We review the ruling of the PCRA court to determine whether it is

supported by the record and free of legal error. See Commonwealth v

Spotz, 18 A.3d 244, 259 (Pa. 2011). We apply “a de novo standard of review

to the PCRA court’s legal conclusions.” Id. (citation omitted).

      Here, the PCRA court committed error by failing to appoint counsel. “The

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) (citation omitted).

      An indigent PCRA petitioner is entitled to the appointment of counsel on

his first post-conviction attack of his conviction. See Commonwealth v.

Stout, 978 A.2d 984, 988 (Pa. Super. 2009); Pa.R.Crim.P. 904(C). Heck is

indigent; he is proceeding in forma pauperis on appeal. This entitlement to

appointed counsel occurs even if the petition is untimely on its face. See

Commonwealth v. Smith, 818 A.2d 494, 501 (Pa. 2003); Stout, 978 A.2d

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at 988. Even in cases where an appellant does not argue his entitlement to

PCRA counsel, or challenge the waiver of that right, this Court is nevertheless

required to raise the issue sua sponte, and remand for the PCRA court to

correct the error. See Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa.

Super. 2011).

       The PCRA petition at issue is the first Heck has filed. Though he did not

request the appointment of counsel at any stage in the PCRA proceedings,

neither did he explicitly waive his right to counsel. 1 Despite the petition’s

untimeliness, Heck was entitled to the assistance of counsel in litigating it.

Consequently, the PCRA court erred in failing to appoint counsel. Accordingly,

we vacate the order dismissing Heck’s petition, and remand for the

appointment of counsel.

       Order vacated. Case remanded for the appointment of PCRA counsel.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 09/07/2018

____________________________________________


1 If a petitioner seeks to waive his right to counsel, the PCRA court is required
to make an on-the-record determination that the waiver is made knowingly,
intelligently, and voluntarily. See Commonwealth v. Grazier, 713 A.2d 81,
82 (Pa. 1998).


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