J-S36015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TODD JAMES GILBERT

                            Appellant                 No. 1711 MDA 2015


                Appeal from the PCRA Order September 11, 2015
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0005996-2007


BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY MUNDY, J.:                            FILED JULY 06, 2016

        Appellant, Todd James Gilbert, appeals pro se from the September 11,

2015 order, dismissing, as untimely, his first petition for relief filed pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After

careful review, we vacate and remand with instructions.

        On August 20, 2009, Appellant pled guilty to one count each of rape of

a child, sexual assault, and corruption of minors.1 On November 19, 2009,

the trial court imposed an aggregate sentence of 8 to 20 years’

imprisonment. Appellant did not file a direct appeal with this Court.



____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3121(c), 3124.1, 6301(a)(1), respectively.
J-S36015-16


      On August 5, 2015, Appellant filed his first PCRA petition pro se. The

PCRA court did not appoint counsel, but instead entered an order notifying

Appellant of its intention to dismiss the petition without a hearing pursuant

to Pennsylvania Rule of Criminal Procedure 907.           Appellant filed a timely

response on August 26, 2015. The PCRA court entered an order dismissing

Appellant’s PCRA petition as untimely on September 11, 2015.                       On

September 28, 2015, Appellant filed a timely notice of appeal.

      Appellant’s only issue in this appeal is that because this was his first

PCRA petition, he was entitled to the appointment of counsel.             Appellant’s

Brief at 9-13.     The Commonwealth agrees that Appellant is entitled to a

remand on this basis. Commonwealth’s Brief at 6.

      A PCRA petitioner is entitled to the appointment of counsel in his or

her   first   petition,   even   if   it   may   appear   untimely   on    its   face.

Commonwealth v. Stout, 978 A.2d 984, 988 (Pa. Super. 2009);

Pa.R.Crim.P. 904(C).       Additionally, we have held “where [a] … first-time

PCRA petitioner was denied his right to counsel … this Court is required to …

remand for the PCRA court to correct that mistake.”           Commonwealth v.

Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011).            Here, the parties agree

that this was Appellant’s first PCRA petition and the PCRA court failed to

appoint counsel as required by Rule 904(C) and our case law of this




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Commonwealth.          Therefore, on remand, the PCRA court shall appoint

counsel to represent Appellant.2

       Based on the foregoing, we conclude the PCRA court erred when it

failed to appoint counsel for Appellant’s first PCRA petition. Accordingly, the

trial court’s September 11, 2015 order is vacated, and the case is remanded

with instructions, consistent with this judgment order.

       Order vacated.         Case remanded with instructions.     Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/6/2016
____________________________________________
2
  On October 28, 2015, this Court entered an order sua sponte remanding
this case for a hearing pursuant to Commonwealth v. Grazier, 713 A.2d
81 (Pa. 1998) “to determine whether Appellant desires counsel on appeal.”
Superior Court Order, 10/28/15, at 1 (emphasis added). The PCRA court
entered an order on November 19, 2015 stating that after a Grazier
hearing, it concluded Appellant knowingly and voluntarily wished to proceed
pro se. PCRA Court Order, 11/19/15, at 1. However, the certified record
does not contain a transcript of this Grazier hearing. Furthermore, this
finding by the PCRA court squarely contradicts Appellant’s pro se November
13 and November 16, 2015 filings when he unequivocally stated he did want
counsel appointed, and did not want a Grazier hearing. Appellant’s Petition
to Modify, 11/13/15, at 1; Appellant’s Petition and Waiver, 11/16/15, at 1.
Nevertheless, we do not view this as an impediment to our judgment here,
since our order admittedly was limited to determining whether Appellant
wished to have counsel solely on this appeal. As noted above, the parties
agree Appellant never had counsel during any of the PCRA proceedings
below, and he was legally entitled to representation.



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