J-S63008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    STEPHEN RODNEY WHITE                       :
                                               :
                       Appellant               :      No. 2629 EDA 2018

              Appeal from the PCRA Order Entered August 2, 2018
              In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0008268-2004


BEFORE:      GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*

JUDGMENT ORDER BY GANTMAN, P.J.E.:                  FILED DECEMBER 13, 2019

        Appellant, Stephen Rodney White, appeals pro se from the order entered

in the Montgomery County Court of Common Pleas, which dismissed as

untimely his first petition, relative to his revocation sentence, under the Post

Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. On October

25, 2005, the court convicted Appellant of burglary and related offenses, in

connection with a string of burglaries Appellant had committed in multiple

counties. The court sentenced Appellant on February 2, 2006, to an aggregate

6 to 12 years’ imprisonment, plus 5 years’ probation. On November 30, 2009,

this Court affirmed the sentence. See Commonwealth v. White, 990 A.2d

57 (Pa.Super. 2009).         Between 2010 and 2014, Appellant unsuccessfully


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*   Retired Senior Judge assigned to the Superior Court.
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litigated a PCRA petition.

       While on parole in 2015, Appellant committed new crimes. Following

his convictions on the new charges, the court held a revocation of

parole/probation      hearing     on   August    11,   2016,   revoked   Appellant’s

parole/probation, and resentenced him to 2 to 5 years’ imprisonment. On

September 12, 2016, Appellant pro se timely filed a PCRA petition, relative to

his revocation sentence, challenging the legality of the revocation sentence,

and requested appointment of counsel.            Specifically, Appellant claimed his

revocation sentence was illegal.1 On January 19, 2018, the court issued notice

per Pa.R.Crim.P. 907, stating Appellant’s current PCRA petition was untimely.

Appellant responded pro se, and the court denied relief on August 2, 2018,

without a hearing or appointing counsel.           On August 31, 2018, Appellant

timely filed a pro se notice of appeal.          The same day, the court ordered

Appellant to file a Pa.R.A.P. 1925(b) statement; Appellant complied.

       “Pursuant to the rules of criminal procedure and interpretive case law,

a criminal defendant has a right to representation of counsel for purposes of



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1  Appellant cites Commonwealth v. Milhomme, 35 A.3d 1219 (Pa.Super.
2011) (vacating and remanding where original sentence was illegal due to trial
court’s imposition of flat imprisonment sentence; because original sentence
was illegal, most recent probation revocation sentence is also illegal; vacating
original sentence and most recent revocation sentence and remanding for
resentencing) and Commonwealth v. Everett, 419 A.2d 793 (Pa.Super.
1980) (explaining where original probationary sentence imposed was illegal,
sentence of imprisonment imposed for violation of that probation was also
illegal and both sentences must be vacated).

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litigating a first PCRA petition through the entire appellate process.”

Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa.Super. 2009) (en

banc). See also Pa.R.Crim.P. 904(C) (stating indigent defendant is entitled

to counsel for litigation of first PCRA petition). “The denial of PCRA relief [on

a first petition] cannot stand unless the petitioner was afforded the assistance

of counsel.” Commonwealth v. Perez, 799 A.2d 848, 851 (Pa.Super. 2002).

      Instantly, the record confirms Appellant is indigent and requested

appointment of counsel in this first PCRA petition following imposition of the

revocation sentence. The PCRA court dismissed Appellant’s current petition

as untimely.   Nevertheless, Appellant’s current petition expressly calls into

question the legality of his revocation sentence, which “reset” the clock for

purposes of the timeliness analysis. See Commonwealth v. Anderson, 788

A.2d 1019 (Pa.Super. 2001), appeal denied, 568 Pa. 732, 798 A.2d 1286

(2002) (holding time for seeking PCRA relief after revocation of probation and

imposition of new sentence runs from one year of conclusion of direct review

of new sentence, for issues concerning new sentence). This PCRA petition is

Appellant’s first relative to his revocation sentence, and he was entitled to

appointment of counsel. See Pa.R.Crim.P. 904(C); Robinson, supra; Perez,

supra. Accordingly, we vacate the order denying PCRA relief and remand for

appointment of counsel and further proceedings. See Commonwealth v.

Kutnyak, 781 A.2d 1259 (Pa.Super. 2001) (vacating order denying PCRA

relief and remanding for appointment of counsel and further proceedings in


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PCRA court where court failed to appoint counsel for appellant’s first PCRA

petition).

      Order vacated; case remanded. Jurisdiction is relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/19




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