J-S44033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 PETER KISTLER,                            :
                                           :
                    Appellant              :        No. 3828 EDA 2017

               Appeal from the PCRA Order November 7, 2017
              in the Court of Common Pleas of Lehigh County,
              Criminal Division at No(s): CP-XX-XXXXXXX-2005

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                         FILED AUGUST 31, 2018

      Peter Kistler (“Kistler”), pro se, appeals from the Order denying his first

Petition filed under the Post Conviction Relief Act (“PCRA”), see 42 Pa.C.S.A.

§§ 9541-9546, and his Motion for the Appointment of Counsel. We vacate the

Order and remand for the appointment of counsel.

      The PCRA court set forth the relevant history underlying this appeal as

follows:

            On May 30, 2006, … Kistler[] entered a guilty plea to
      Attempting to Lure a Child Into a Motor Vehicle. … [Kistler,]
      during the guilty plea [colloquy,] acknowledged that he was aware
      of the consequences of being found to be a sexually violent
      predator. … At the conclusion of [a] hearing, [Kistler] was found
      to be a sexually violent predator. He was then sentenced to not
      less than twenty-four (24) months nor more than sixty (60)
      months in a state correctional institution.

             [Kistler] subsequently filed an appeal contesting his
      classification as a sexually violent predator.          Counsel was
      appointed to represent him, and his judgment of sentence was
      affirmed by the Superior Court,[FN 1] and his “Petition for Allowance
      of Appeal” was denied by the Supreme Court.[FN 2]
J-S44033-18



               Commonwealth v. Kistler, 944 A.2d 794 (Pa. Super.
           [FN 1]

           2007).

           [FN 2]   Commonwealth v. Kistler, 951 A.2d 1162 (Pa. 2008).

               On September 19, 2017, [Kistler] filed a [P]etition[,] which
        he called a “Post-Conviction Relief Act Petition[,1]” … alleging he
        is entitled to the relief dictated by Commonwealth v. Muniz, 164
        A.3d 1189 (Pa. 2017)[,2 and invoking the newly-recognized
        constitutional right exception to the PCRA’s one-year time bar.]
        The [P]etition attempts to allege that SORNA is being applied to
        him retroactively as a past sexual offender, and … suggests it also
        “places a unique burden on [his] rights to reputation and
        undermines the finality of sentence ….”

                                        ***

              On September 19, 2017, [Kistler] also filed a “Motion for
        Appointment of Counsel.” [Kistler,] in that request[,] was not
        challenging his conviction, but seeking the appointment of counsel
        to “address” the lifetime registration requirements under SORNA.
        On November 7, 2017, [Kistler’s] PCRA [P]etition and [M]otion for
        counsel were denied.

PCRA Court Opinion, 1/5/18, at 1-3 (two footnotes in original, two added;

citations and paragraph breaks omitted).

        Kistler timely filed a pro se Notice of appeal, followed by a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.



____________________________________________


1   Notably to the instant appeal, this was Kistler’s first PCRA Petition.

2 In Muniz, our Supreme Court held that the registration requirements set
forth in the Sex Offender Registration and Notification Act (“SORNA”), 42
Pa.C.S.A. §§ 9799.10-9799.41, constitute criminal punishment, and
therefore, their retroactive application violates the ex post facto clauses of the
United States and Pennsylvania Constitutions. Muniz, 164 A.3d at 1193.


                                           -2-
J-S44033-18


       In his pro se brief, Kistler presents three issues for our review, which

we incorporate herein by reference, see Brief for Appellant at 5. They include

a challenge to the PCRA court’s failure to appoint Kistler, an indigent prisoner,3

counsel to represent him in connection with his first PCRA Petition. This issue

is dispositive of the instant appeal.

       In its Opinion, the PCRA court addressed this matter as follows:

              [Kistler’s] [P]etition may be labeled as a PCRA petition, but
       his claims are not cognizable under the PCRA.                   See
       Commonwealth v. Masker, 34 A.3d 841 (Pa. Super. 2011)
       ([stating that a c]hallenge to the process by which someone is
       classified as a sexually violent predator is not a challenge to a
       conviction or sentence and is not cognizable under the PCRA);
       Commonwealth v. Williams, 977 A.2d 1174 (Pa. Super. 2009)
       ([stating that the r]eporting requirements of Megan’s Law II are
       not “a sentence of imprisonment, probation or parole for the
       crime” for which PCRA may provide relief, but rather a collateral
       consequence of conviction).

             Additionally, a review of [Kistler’s] [P]etition does not
       disclose any claims regarding ineffectiveness of counsel or that his
       guilty plea was not voluntary. Instead, the relief [Kistler] is
       seeking is solely to bring his sex offender registration period under
       the Muniz umbrella. See Commonwealth v. Leidig, 956 A.2d
       399, 406 (Pa. 2008) ([stating that] sex offender registration
____________________________________________


3 Initially, we are unable to determine from the record before us whether
Kistler, who filed this appeal while confined at SCI-Somerset, is still serving a
prison sentence in connection with his instant criminal case. The PCRA court
did not clarify this matter, which implicates Kistler’s eligibility for PCRA relief.
However, we acknowledge that Kistler, in his pro se PCRA Petition, alleges
that, due to multiple parole violations, he never commenced serving his prison
sentence of two to five years imposed in this case in 2006. Under 42 Pa.C.S.A.
§ 9543(a)(1)(i), to be eligible for PCRA relief, a PCRA petitioner must be
currently serving a prison sentence or be on probation or parole for the crime.
See Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997); see also
Commonwealth v. Fisher, 703 A.2d 714, 716 (Pa. Super. 1997) (explaining
that the PCRA “preclude[s] relief for those petitioners whose sentences have
expired, regardless of the collateral consequences of their sentence.”).
                                           -3-
J-S44033-18


       requirement was a collateral consequence of defendant’s plea, and
       the failure of the trial court to accurately advise the defendant of
       this registration deviation did not provide grounds for relief).

              This [c]ourt recognizes that if [Kistler’s] [P]etition was
       properly brought under the PCRA, the rules pertaining to post-
       conviction collateral proceedings require counsel to be appointed.
       See Pa.R.Crim.P. 904([C]) [(mandating that an indigent
       petitioner shall be appointed counsel to represent him or her on a
       first PCRA petition)]; Commonwealth v. Ramos, 14 A.3d 894,
       895 (Pa. Super. 2011). However, the absence of a cognizable
       claim under the PCRA does not require the appointment of
       counsel. Commonwealth v. Beasley, 678 A.2d 773, 778 (Pa.
       1996)[] ([stating that] “[t]he accused has a constitutional right to
       counsel on direct appeal, but not in state collateral proceedings.”);
       see also Commonwealth v. Priovolos, 715 A.2d 420, 421-22
       (Pa. 1998). It was not an abuse of discretion to deny [Kistler’s]
       [M]otion for the appointment of counsel to litigate his sex offender
       registration period.

PCRA Court Opinion, 1/5/18, at 8-9.

       Essentially, the PCRA court believes that because the claims that Kistler

raised in his Petition are purportedly not cognizable4 under the PCRA, his

Petition may not be considered a PCRA petition, and thus, Kistler was not

entitled to have counsel appointed.            See id.; accord Commonwealth v.

Kutnyak,      781    A.2d   1259,     1262     (Pa.   Super.   2001)   (reversing   the

determination of the PCRA court that, due to the nature of the pro se

petitioner’s claims, his petition could not be considered a first PCRA petition

and, therefore, “since there were no valid PCRA claims before the court, there




____________________________________________


4Because of our disposition herein, we need not address the cognizability of
Kistler’s claims or the timeliness of his PCRA Petition.
                                           -4-
J-S44033-18


was no basis to appoint counsel.” (citation and internal quotation marks

omitted)). We disagree.

       In Kutnyak, the panel rejected the PCRA court’s determination:

       To the contrary, the petition must be considered a PCRA
       petition,[5] and counsel must be appointed to represent
       [a]ppellant. Our Supreme Court held in Commonwealth v.
       Albrecht, 554 Pa. 31, 720 A.2d 693 (1998), that an
       unrepresented petitioner who is indigent has a right to court-
       appointed counsel to represent him on his first PCRA petition[;
       s]ee also Commonwealth v. Quail, 1999 PA Super 62, 729
       A.2d 571 (Pa. Super. 1999). “The denial of PCRA relief cannot
       stand unless the petitioner was afforded the assistance of
       counsel.”       Albrecht, supra, at 43, 720 A.2d at
       699 (citing Commonwealth v. Duffey[,] 551 Pa. 675, 713 A.2d
       63 (1998)). The PCRA court may not first evaluate the merits of
       the petition, as was done in this case, and then deny the
       appointment of counsel because the petition lacks merit. To do
       so undermines the very purpose of appointing counsel and thwarts
       the intent of the Legislature in providing counsel to indigent
       petitioners in collateral proceedings.           See generally,
       Commonwealth v. Hampton, 718 A.2d 1250, 1253-1254 (Pa.
       Super. 1998). The issue of whether the petitioner is entitled to
       relief is another matter entirely, which is to be determined after
       the appointment of counsel and the opportunity to file an
       amended petition.

              Therefore, as this is [a]ppellant’s first PCRA petition, he is
       entitled to counsel to represent him despite any apparent
       untimeliness of the petition or the apparent non-cognizability
       of the claims presented. Hampton, 718 A.2d at 1253 (holding
       that appointment of counsel is necessary despite the apparent
       untimeliness of petition)[; s]ee also Commonwealth v.
       Guthrie, 2000 PA Super 77, 749 A.2d 502, 504 (Pa. Super.
       2000) (holding there is no need to formally request counsel on a
       first PCRA petition, since counsel will be appointed)
       (citing Commonwealth v. Ferguson, 722 A.2d 177 (Pa. Super.
____________________________________________


5This Court has “repeatedly held that any petition filed after the judgment of
sentence becomes final will be treated as a PCRA petition.” Commonwealth
v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011) (citation and ellipses
omitted).
                                           -5-
J-S44033-18


      1998)). Therefore, we are constrained to vacate and remand this
      matter for the appointment of counsel to represent [a]ppellant.

Kutnyak, 781 A.2d at 1262 (footnote and emphasis added); see also

Commonwealth v. Smith, 818 A.2d 494, 500-01 (Pa. 2003) (upholding

Kutnyak and its line of cases, and “conclud[ing] that Rule 904 mandates that

an indigent petitioner, whose first PCRA petition appears untimely, is entitled

to the assistance of counsel in order to determine whether any of the

exceptions to the one-year time limitation apply.”); Commonwealth v.

Lindsey, 687 A.2d 1144, 1144-45 (Pa. Super. 1996) (emphasizing that the

identical predecessor to Pa.R.Crim.P. 904(C) requires that a PCRA petitioner

be appointed counsel for his or her first PCRA petition, regardless of the merits

of the claims).

      Based on the foregoing, the PCRA court in the instant case erred in

failing to appoint Kistler PCRA counsel and determining that “the absence of a

cognizable claim under the PCRA does not require the appointment of

counsel.”   PCRA Court Opinion, 1/5/18, at 9; see also Kutnyak, supra.

Hence, we vacate the PCRA court’s Order and remand for the appointment of

counsel, who may then file a counseled PCRA petition on Kistler’s behalf.

Further, on remand, the PCRA court must initially determine whether Kistler

is still eligible for PCRA relief. See 42 Pa.C.S.A. § 9543(a)(1)(i).

      Order vacated. Case remanded for appointment of counsel. Superior

Court jurisdiction relinquished.




                                      -6-
J-S44033-18



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/18




                          -7-
