J-S60024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
SHAQUILLE MCCORD,                        :
                                         :
                   Appellant             :     No. 182 WDA 2017

                Appeal from the PCRA Order January 5, 2017
              In the Court of Common Pleas of Cambria County
            Criminal Division at No(s): CP-11-CR-0001315-2012


BEFORE:    OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY DUBOW, J.:                     FILED NOVEMBER 29, 2017

      Appellant, Shaquille McCord, appeals pro se from the January 5, 2017

Order denying as untimely his first pro se Petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. The PCRA court

failed to appoint counsel as required by Pa.R.Crim.P. 904(C) and, therefore,

we are constrained to vacate and remand for the appointment of PCRA

counsel.

      On September 3, 2013, the trial court sentenced Appellant to a term of

seven to fourteen years’ incarceration following his guilty plea to Attempted

Criminal Homicide.    Appellant filed Post-Sentence Motions, which the trial

court denied on September 12, 2013.          Appellant did not file a Notice of

Appeal.

      On December 13, 2016, Appellant filed the instant pro se PCRA

Petition, his first, requesting the reinstatement of his appellate rights nunc

____________________________________
*   Former Justice specially assigned to the Superior Court.
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pro tunc due to ineffective assistance of counsel and violations of his

constitutional rights.   In his Petition, Appellant asserted that he is without

the financial resources to obtain a lawyer and requested that the court

appoint a lawyer to represent him. The PCRA court did not grant Appellant’s

request.

      On December 13, 2016, the PCRA court issued notice of its intent to

dismiss the PCRA Petition without a hearing pursuant to Pa.R.Crim.P.

907(1), stating that the Petition was untimely.       On December 27, 2016,

Appellant filed a pro se Response.      On January 5, 2017, the PCRA court

entered its Order dismissing Appellant’s pro se PCRA Petition as untimely.

Appellant filed a timely pro se Notice of Appeal.

      Appellant concedes that his Petition was facially untimely, but avers

that the PCRA court should have appointed counsel to aid Appellant in his

attempt to establish an exception to the time-bar.       Appellant’s Brief at 6.

We agree.

      It is well-settled that indigent petitioners are entitled to representation

by counsel for a first petition filed under the PCRA. See Pa.R.Crim.P. 904(C)

(stating that when an unrepresented defendant is unable to afford counsel,

the judge shall appoint counsel to represent the defendant on the

defendant’s first petition for PCRA relief). “[T]he denial of PCRA relief to an

indigent first-time petitioner cannot stand unless the petitioner was afforded

the assistance of counsel.” Commonwealth v. Price, 876 A.2d 988, 993

(Pa. Super. 2005) (citation and quotation omitted).        Further, an indigent

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first-time petitioner “is entitled to counsel to represent him despite any

apparent untimeliness of the petition or the apparent non-cognizability of the

claims presented.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1262 (Pa.

Super. 2001) (citation omitted).   Finally, “we will not hold an indigent pro

se petitioner responsible for presenting a cognizable claim for relief until,

pursuant to Rule 904(a), petitioner has been given the opportunity to be

represented by appointed counsel.”    Commonwealth v. Evans, 866 A.2d

442, 445 (Pa. Super. 2005).

      For the foregoing reasons, we are constrained to vacate the PCRA

court’s Order denying Appellant’s PCRA Petition as untimely.      We remand

this case for the court to appoint PCRA counsel pursuant to Pa.R.Crim.P.

904(C), and for further proceedings appropriate under the PCRA.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2017




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