J-S63027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BARRY GIBBS,

                            Appellant                 No. 3205 EDA 2015


                 Appeal from the PCRA Order October 7, 2015
                 In the Court of Common Pleas of Pike County
              Criminal Division at No(s): CP-52-CR-0000089-1984


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and FITZGERALD,* JJ.

JUDGMENT ORDER BY SHOGAN, J.:                     FILED OCTOBER 07, 2016

       Barry Gibbs (“Appellant”) appeals pro se from the order dismissing as

untimely his pro se first petition for relief filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.       We vacate and

remand.

       The PCRA court dismissed Appellant’s PCRA petition as untimely and

maintained that position in its Pa.R.A.P. 1925(a) opinion. PCRA Court Order,

10/7/15; PCRA Court Opinion, 12/9/15, at 4. However, the Commonwealth

submits that a remand is necessary for the appointment of counsel:

            The Commonwealth is constrained to agree with
       [Appellant] that the [PCRA] court below inadvertently committed
       a reversible error of law when it disposed of the PCRA petition
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      without first appointing counsel to assist [Appellant] in the
      prosecution of his collateral attack claims, which would
      necessarily include the possibility of filing a counseled amended
      PCRA petition.       [Appellant] is serving a life imprisonment
      sentence in state prison and is therefore indigent.           The
      underlying claims at issue constitute [Appellant’s] first PCRA
      petition filed since he was convicted by a jury and sentenced for
      murder in 2005.

             Although the [PCRA] court is correct that [Appellant’s]
      claims filed in 2015 are facially untimely and that [Appellant] has
      failed in his petition to articulate the applicability of an
      enumerated statutory exception to the time bar, the Supreme
      Court and this Court have made it abundantly clear that a
      petitioner in [Appellant’s] shoes has an absolute right to the
      assistance of counsel at this juncture -- to address the issue of
      timeliness and whether a statutory exception to the time bar
      applies, to address other procedural issues, and to address the
      underlying merits of his claims.

            Accordingly, this Court must vacate the disposition below
      and remand the case back to the [PCRA] court with instructions
      to appoint counsel and allow counsel to proceed in accordance
      with the governing law.

Commonwealth’s Brief at 10–11 (internal citations omitted).

      Pennsylvania law is clear:

            While a PCRA petitioner does not have a Sixth Amendment
      right to assistance of counsel during collateral review, this
      Commonwealth, by way of procedural rule, provides for the
      appointment of counsel during a petitioner’s first petition for post
      conviction relief.

Commonwealth v. Smith, 121 A.3d 1049, 1053 (Pa. Super. 2015)

(citation omitted), appeal denied, 136 A.3d 981 (Pa. 2016); Pa.R.Crim.P.

904(C).     This right exists even in the face of a patently untimely PCRA

petition.   See Commonwealth v. Smith, 818 A.2d 494, 500–501 (Pa.

2003) (“[A]n indigent petitioner, whose first PCRA petition appears untimely,

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

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

       Upon review, the record confirms that Appellant filed a pro se first

PCRA petition in which he asserted his indigence and requested counsel.

PCRA Petition, 9/13/15, at §§ 15, 16.            Accordingly, we commend the

Commonwealth on its candor and agree that the PCRA court erred in

dismissing Appellant’s petition without appointing counsel.1

       Order    vacated;     case     remanded   for   appointment   of   counsel.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2016




____________________________________________


1
   We express no opinion on the merits of the claims raised in Appellant’s
petition.



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