J-S22038-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                  Appellee                 :
                                           :
                     v.                    :
                                           :
JOHN W. HOLLINS, III,                      :
                                           :
                  Appellant                :     No. 941 MDA 2015

                Appeal from the Order Entered May 15, 2015
             in the Court of Common Pleas of Dauphin County,
            Criminal Division, at No(s): CP-22-CR-0001924-2008

BEFORE:     MUNDY, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                     FILED MARCH 31, 2016

      John W. Hollins, III (Appellant) pro se appeals from the May 15, 2015

order which denied his motion for sentence modification.       For the reasons

that follow, we vacate the court’s order denying Appellant’s motion and

remand for further proceedings consistent with this memorandum.

      On September 8, 2008, Appellant pled guilty to, inter alia, 11 counts

of unlawful distribution of a controlled substance. On November 26, 2008,

he received an aggregate sentence of 12 to 24 years’ incarceration.

Appellant filed no direct appeal.

      On May 8, 2015, Appellant filed an application for leave to proceed in

forma pauperis.     Simultaneously, Appellant filed the motion that is the

subject of the instant appeal. Therein, he claimed that he is entitled to relief

because part of his sentence is unconstitutional pursuant to the United


*Retired Senior Judge assigned to the Superior Court.
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States Supreme Court’s holding in Alleyne v. United States, 133 S.Ct.

2151 (2013) (holding that a fact which triggers the imposition of a

mandatory minimum sentence is an element of the crime and must,

therefore, be determined beyond a reasonable doubt by a jury). On May 15,

2015, the trial court issued an order denying Appellant’s motion based upon

the fact that “more than thirty days elapsed since imposition of sentence.” 1

Trial Court Order, 5/15/2015.      The trial court neither held a hearing nor

appointed counsel before issuing the order denying Appellant’s motion.

Appellant timely filed a notice of appeal.2

        Initially, we note that the trial court should have treated Appellant’s

motion as a petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546, and not as an untimely post-sentence motion.3

“It is well-settled that the PCRA is intended to be the sole means of

achieving post-conviction relief…. Issues that are cognizable under the PCRA

must be raised in a timely PCRA petition[.]” Commonwealth v. Taylor, 65



1
  The trial court reasoned that the denial of Appellant’s motion was proper
pursuant to Pa.R.C.P. § 720(a), because it was “well outside the timeliness
requirements dictated by our [r]ules of [c]riminal [p]rocedure.” Trial Court
Opinion, 8/17/15, p. 2-3.
2
    Both Appellant and the trial court complied with Pa.R.A.P 1925.
3
   The Commonwealth made this correct observation in their reply brief:
“[T]he Commonwealth believes [Appellant] was ultimately attempting to file
a PCRA petition, as it would be the proper vehicle for seeking relief from an
alleged illegal sentence during post-conviction” Commonwealth’s Brief at 5.


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J-S22038-16


A.3d 462, 465-66 (Pa. Super. 2013). A claim challenging the legality of a

sentence is cognizable under the PCRA. See Commonwealth v. Guthrie,

749 A.2d 502 (Pa. Super. 2000).

      Rule 904 of the Rules of Criminal Procedure requires the appointment

of counsel for an indigent petitioner on his or her first PCRA petition. 4

Pa.R.Crim.P. 904(C). In this regard, this Court has stated as follows:

      An indigent petitioner is entitled to representation by counsel for
      a first petition filed under the PCRA. This right to representation
      exists throughout the post-conviction proceedings, including any
      appeal from disposition of the petition for post-conviction relief.
      Once counsel has entered an appearance on a defendant’s
      behalf, counsel is obligated to continue representation until the
      case is concluded or counsel is granted leave by the court to
      withdraw his appearance.

Commonwealth v. Brown, 836 A.2d 997, 998-99 (Pa. Super. 2003)

(citations and internal quotation marks omitted); see also Commonwealth

v. Peterson, 683 A.2d 908, 911 (Pa. Super. 1996) (holding that a PCRA

petitioner is entitled to counsel for his first PCRA petition, regardless of the

merits of his claims). Such representation is required even if, as in this case,

the petition appears to be untimely.     See Commonwealth v. Ferguson,

722 A.2d 177, 179 (Pa. Super. 1998) (“[E]ven where a PCRA petition


4
  This requirement is irrespective of whether or not Appellant requests
counsel to be appointed. See Commonwealth v. Auchmuty, 799 A.2d
823, 826 (Pa. Super. 2002) (“[This Court] opined that clearly Rule
Pa.R.Crim.P. 904 does not require petitioners to affirmatively request
appointment of counsel and concluded it also was necessary to remand for
appointment of counsel.”).



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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 section 9545(b) apply to the circumstances surrounding his

convictions.”).

      Herein, we    conclude   that   the   trial court should have    treated

Appellant’s motion for sentence modification, which was the first filing

initiated by Appellant since he was sentenced, as Appellant’s first PCRA

petition. As such, after the court found that Appellant was entitled to IFP

status, the trial court was required to appoint counsel.

      Because Appellant was denied his right to representation in his first

PCRA petition and there is no indication that Appellant waived his right to

counsel, we vacate the May 15, 2015 order denying Appellant’s motion. 5 We

remand for the appointment of counsel to provide the representation to

which Appellant is entitled under Pa.R.Crim.P. 904(C), beginning with the

filing of an amended PCRA petition or a no-merit letter which satisfies all of

the requirements of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

Should Appellant indicate that he wishes to proceed pro se on his petition,



5
  “[W]here 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 court to correct that
mistake.” Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super.
2011).


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the PCRA court shall hold a proper hearing pursuant to Commonwealth v.

Grazier, 713 A.2d 81 (Pa. 1998) to determine if such waiver is voluntary,

intelligent, and knowing.

      Order vacated.   Case remanded with for proceedings consistent with

this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/31/2016




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