J-A27015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

SHANE HACKWORTH,

                         Appellant                     No. 752 WDA 2017


               Appeal from the Order Entered May 11, 2017
               In the Court of Common Pleas of Erie County
         Criminal Division at No(s): No. CP-25-CR-0001441-2008


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                         FILED JANUARY 3, 2018

      Appellant, Shane Hackworth, appeals pro se from the trial court’s May

11, 2017 order denying his “Motion for Reconsideration of Sentence Nunc

Pro Tunc.”    After careful consideration, we vacate the court’s order and

remand for further proceedings consistent with this decision.

      The facts of Appellant’s underlying convictions are not necessary to

our disposition of this appeal.      The trial court briefly summarized the

procedural history of Appellant’s case, as follows:

      Appellant pled guilty to the following charges on July 24, 2008:

      Count One: Defiant Trespass, 18 Pa.C.S.[] § 3503(b)(1)(v);

      Count Two: Possession of Marijuana, 35 Pa.C.S.[] § 780-
      113(a)(31); and

      Count Three: Possession of Drug Paraphernalia, 35 Pa.C.S.[] §
      780-113(a)(32).
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            Appellant applied for admission into the Erie County Drug
      Treatment Court. He was admitted into Drug Treatment Court
      and sentenced on July 24, 2008. At Count One, Appellant was
      sentenced to a probation period of 3 years consecutive to Docket
      Number 3068 of 2007. At Count Two, Appellant was sentenced
      to a probation period of 30 days, consecutive to Count One. At
      Count Three, Appellant was sentenced to a probation period of
      12 months, concurrent to Count One.

            On July 23, 2009[,] Appellant’s probation was revoked.
      Appellant was re-sentenced to probation again.

            Appellant did not file any post-sentence motions in the
      ten[-]day periods following either his original sentencing or his
      revocation and re-sentencing. His first filing at this docket was
      on May 10, 2017, with the present Motion for Reconsideration of
      Sentence Nunc Pro Tunc. After this Motion was denied as
      untimely, Appellant filed a Notice of Appeal on May 11, 2017.

Trial Court Opinion (TCO), 1/7/17, at 1-2.

      Appellant timely complied with the trial court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.         The court

issued its Rule 1925(a) opinion on June 7, 2017.           Therein, the court

construes Appellant’s “Motion for Reconsideration of Sentence Nunc Pro

Tunc” as an untimely post-sentence motion, and/or an untimely “attempt to

appeal his sentence … over seven years after the deadline.”          Id. at 2.

Accordingly, the court deems all of Appellant’s issues waived. Id.

      We need not address the issues raised by Appellant herein, as the

record before us makes it patently clear that the trial court erred by not

treating his pro se “Motion for Reconsideration of Sentence Nunc Pro Tunc”

as his first petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546.     See Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.

Super. 2013) (“[A]ll motions filed after a judgment of sentence is final are to

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be construed as PCRA petitions.”) (citing Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007)).              Notably, in that motion, Appellant

asserted, inter alia, that his trial counsel acted ineffectively, and that he has

discovered new evidence pertinent to his case.             See, e.g., Motion for

Reconsideration of Sentence Nunc Pro Tunc, 5/10/17, at 3 (unnumbered)

(“By these issues alone (and others) counsels [sic] failure to seek correction,

file pre[-]trial motions or argue these facts, no lawyer that was competent

would have failed to act to protect the Petitioner [sic] rights.”). Such claims

are cognizable under the PCRA. See 42 Pa.C.S. § 9543(a)(2)(ii), (vi).

       Therefore, the trial court should have treated Appellant’s motion as a

PCRA petition, and ascertained if he is entitled to court-appointed counsel

under Pa.R.Crim.P. 904(C) (requiring that counsel be appointed “when an

unrepresented defendant satisfies the judge that [he] is unable to afford or

otherwise procure counsel”).1 See also Commonwealth v. Albrecht, 720

A.2d 693 (Pa. 1998) (holding that an unrepresented petitioner who is

indigent has the right to court-appointed counsel to represent him on his

first PCRA petition). Accordingly, we vacate the trial court’s May 11, 2017


____________________________________________


1 Appellant may be entitled to counsel, even though his PCRA petition
appears untimely on its face. Commonwealth v. Smith, 818 A.2d 494,
500–01 (Pa. 2003) (concluding “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”).




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order, as it effectively denied Appellant’s first PCRA petition without

affording him his right to counsel. See Commonwealth v. Kutnyak, 781

A.2d 1259, 1262 (Pa. Super. 2001) (“The denial of PCRA relief cannot stand

unless the petitioner was afforded the assistance of counsel.”) (citation

omitted). We remand for the court to treat Appellant’s May 10, 2017 motion

as a PCRA petition, and appoint him counsel if he is so entitled under Rule

904(C).

      Order vacated. Case remanded for further proceedings.     Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2017




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