J-S30009-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RUSSELL D. CRAWSHAW                        :
                                               :
                       Appellant               :   No. 1551 WDA 2019

              Appeal from the Order Entered September 18, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0011277-2013


BEFORE:      MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.:                                 FILED JULY 10, 2020

        Russell D. Crawshaw (Appellant) appeals pro se from the order denying

his “Motion for Time Credit and Corrected Commitment.”           We vacate and

remand.

        On March 12, 2014, Appellant pled guilty to four counts of burglary.1

The trial court sentenced Appellant to two years of State Intermediate

Punishment (SIP), followed by ten years of probation.          While serving the

probation portion of his sentence, Appellant pled guilty to additional crimes at

an unrelated docket.

        Because of the new convictions, the trial court held a probation

revocation hearing on June 5, 2018. At the conclusion of the hearing, the trial

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*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. § 3502.
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court revoked Appellant’s probation and resentenced him to 2½ to 5 years of

incarceration. Appellant did not file a post-sentence motion or direct appeal.

      On September 13, 2019, Appellant filed the underlying pro se “Motion

for Time Credit and Corrected Commitment,” requesting that the trial court

credit him “for time spent in custody prior to his guilty plea and sentencing …

in the amount of approximately 365 days[.]”       Appellant’s Motion for Time

Credit and Corrected Commitment, 9/13/19, at 2. The trial court denied the

motion on September 18, 2019.       Appellant filed this timely appeal.   Both

Appellant and the trial court have complied with Pennsylvania Rule of

Appellate Procedure 1925.

      Appellant presents a single issue, arguing that the trial court erred in

refusing to construe his motion as a first petition pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, and failed to appoint

counsel as required under the PCRA. Appellant’s Brief at 4. Appellant asks us

to vacate the trial court’s order denying his motion, and remand for the

appointment of counsel.       Id. at 10.     Both the trial court and the

Commonwealth agree with Appellant. See Trial Court Opinion, 2/5/20, at 5

(“[A]s counsel was not appointed prior to the dismissal of [Appellant’s] Motion

for Credit for Time served, this matter should be remanded for the

appointment of counsel.”); Commonwealth Brief at 7 (“[T]he Commonwealth

agrees that the proper resolution of this appeal is a remand for appointment

of counsel.”).




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       It is well settled that “the PCRA subsumes all forms of collateral relief 2

… to the extent a remedy is available under such enactment.”

Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007) (emphasis in

original). “A challenge to the trial court’s failure to award credit for time spent

in custody prior to sentencing involves the legality of sentence and is

cognizable under the PCRA.” Commonwealth v. Fowler, 930 A.2d 586, 595

(Pa. Super. 2007) (citation omitted); see also 42 Pa.C.S.A. § 9543(a)(2).

Consequently, we also agree that the trial court should have treated

Appellant’s “Motion for Time Credit and Corrected Commitment” as a first

PCRA petition.

       A petitioner has a rule-based right to counsel for a first PCRA petition.

Pa.R.Crim.P. 904(C); Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa.

Super. 2009) (en banc) (“[A] criminal defendant has a right to representation

of counsel for purposes of litigating a first PCRA petition through the entire


____________________________________________


2 A trial court must construe any motion filed after a defendant’s judgment of
sentence becomes final as a petition filed pursuant to the PCRA.
Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011). Appellant
had 30 days from his June 5, 2018 resentencing to file a direct appeal.
Pa.R.A.P. 903(a) (“Except as otherwise prescribed by this rule, the notice of
appeal required by Rule 902 (manner of taking appeal) shall be filed within 30
days after the entry of the order from which the appeal is taken.”). Because
Appellant did not file a direct appeal, his judgment of sentence became final
on July 5, 2018. See 42 Pa.C.S.A. § 9545(b)(3) (a judgment of sentence
becomes final “at the conclusion of direct review, including discretionary
review in the Supreme Court of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking the review”). Appellant’s
underlying motion, filed September 13, 2019, was filed after his judgment of
sentence became final.

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appellate process.”).        “The indigent petitioner’s right to counsel must be

honored regardless of the merits of his underlying claims, … so long as the

petition in question is his first.” Commonwealth v. Powell, 787 A.2d 1017,

1019 (Pa. Super. 2001) (citation omitted). When an indigent petitioner has

been deprived of counsel, this Court should remand for appointment of

counsel to litigate the petition. Commonwealth v. Kenney, 732 A.2d 1161,

1164 (Pa. 1999).

       Although     titled   as   a   “Motion    for   Time   Credit   and   Corrected

Commitment,” Appellant’s filing raises an issue that is cognizable under the

PCRA, and the trial court should have treated it as his first PCRA petition and

appointed counsel.       Accordingly, we vacate the order denying Appellant’s

motion and remand for the appointment of counsel, who shall file an amended

PCRA petition or a Turner/Finley letter.3

       Order vacated.         Case remanded for the appointment of counsel.

Jurisdiction relinquished.




____________________________________________


3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2020




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