J-S32028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                           IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

DONALD KIEHLMEIER,

                            Appellant                       No. 1882 WDA 2014


               Appeal from the PCRA Order of October 10, 2014
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0003208-2012
                          and CP-25-CR-0003217-2012


BEFORE: SHOGAN, OLSON AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                                      FILED JUNE 15, 2015

       Appellant, Donald Kiehlmeier, appeals pro se from the order entered

on October 10, 2014. We vacate the PCRA court’s order and remand.

       On December 20, 2012, Appellant pleaded guilty to aggravated

assault, resisting arrest, and possession of marijuana;1 on February 13,

2013, the trial court sentenced Appellant to serve an aggregate term of 58

to 144 months in prison. Appellant did not file a post-sentence motion or a

direct appeal from his judgment of sentence.

       On September 12, 2014, Appellant filed a pro se “Motion to Modify and

Reduce Sentence Nunc Pro Tunc.”                Within this petition, Appellant claimed

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1
  18 Pa.C.S.A. §§ 2702(a)(2) and 5104 and 35 P.S. § 780-113(a)(31),
respectively.
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that his appointed counsel abandoned him after sentencing and that his

appointed counsel ignored his request to file a post-sentence motion and

direct appeal on his behalf.         Appellant’s PCRA Petition, 9/12/14, at 1-3.

Although the PCRA court properly considered Appellant’s “Motion to Modify

and Reduce Sentence Nunc Pro Tunc” to be Appellant’s first PCRA petition,

the PCRA court did not appoint counsel to represent Appellant. Instead, on

September 18, 2014, the PCRA court issued Appellant notice that it intended

to dismiss Appellant’s PCRA petition without a hearing, as the petition was

untimely.    See PCRA Court Notice, 9/18/14, at 1; see also Pa.R.Crim.P.

907(1). Appellant did not respond to the PCRA court’s Rule 907 notice and,

on October 10, 2014, the PCRA court dismissed Appellant’s PCRA petition.

       On Monday, November 10, 2014, Appellant filed a timely, pro se notice

of appeal from the PCRA court’s October 10, 2014 order.2 We now vacate

the PCRA court’s October 10, 2014 order and remand for the appointment of

counsel to represent Appellant.
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2
  After the PCRA court dismissed Appellant’s pro se “Motion to Modify and
Reduce Sentence Nunc Pro Tunc,” Appellant filed a pro se petition entitled
“Amended Petition for Post Conviction Relief Pursuant to the [PCRA].”
Within this amended petition, Appellant repeated his claims that his trial
counsel was ineffective for failing to file a post-sentence motion and a direct
appeal on his behalf. See Appellant’s Amended PCRA Petition, 10/14/14, at
1-3. The PCRA court dismissed this amended petition on October 22, 2014
and, within its order, the PCRA court noted that it had already dismissed
Appellant’s PCRA petition on October 10, 2014.             PCRA Court Order,
10/22/14, at 1. However, and regardless of this latter filing, Appellant filed
a timely notice of appeal from the dismissal of his first PCRA petition.
Appellant’s Notice of Appeal, 11/10/14, at 1.



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       The PCRA court erred when it failed to appoint counsel to represent

Appellant on his first PCRA petition. “[I]t is undisputed that first time PCRA

petitioners have a rule-based right to counsel.”                   Commonwealth v.

Figueroa, 29 A.3d 1177, 1180 n.6 (Pa. Super. 2011). This right to counsel

“exists throughout the post-conviction proceedings, including any appeal

from    [the]    disposition    of    the      petition   for   post-conviction   relief.”

Commonwealth v. Quail, 729 A.2d 571, 573 (Pa. Super. 1999) (internal

citations and quotations omitted); see also Pa.R.Crim.P. 904(C). Here, the

PCRA court simply failed to appoint counsel to represent Appellant during the

underlying proceedings. This constitutes clear error, as it forced Appellant to

litigate the entirety of his first PCRA petition without the aid of an attorney.3

       Moreover, although Appellant did not claim that the PCRA court erred

in failing to appoint counsel, our Supreme Court explained that “[t]he 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).

Thus, we have held that “where an indigent, first-time PCRA petitioner was

denied his right to counsel – or failed to properly waive that right – this

Court is required to raise this error sua sponte and remand for the PCRA


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3
  As this Court has held: “even where a PCRA petition appears untimely, an
indigent petitioner is entitled to counsel in order that a determination may
be made as to whether any of the exceptions to the time limitation of [42
Pa.C.S.A. §] 9545(b) apply to the circumstances surrounding his [case].”
Commonwealth v. Ferguson, 722 A.2d 177, 179 (Pa. Super. 1998).



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court to correct that mistake.” Commonwealth v. Stossel, 17 A.3d 1286,

1290 (Pa. Super. 2011).

       In the case at bar, Appellant was deprived of his rule-based right to

have appointed counsel litigate his first PCRA petition.4 As such, we vacate

the order dismissing Appellant’s PCRA petition and remand this case to the

PCRA court.

       Order vacated. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2015




____________________________________________


4
  We note that the trial court previously determined that Appellant was
indigent and that Appellant was granted leave to proceed with the current
appeal in forma pauperis.



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