J-S48039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TERELL BRAXTON,

                            Appellant                 No. 296 MDA 2017


                  Appeal from the PCRA Order January 19, 2017
              in the Court of Common Pleas of Lackawanna County
               Criminal Division at Nos.: CP-35-CR-0000785-2007
                            CP-35-CR-0002119-2007

BEFORE: OTT, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 19, 2017

        Appellant, Terell Braxton, appeals pro se from the January 19, 2017

order denying his self-styled Motion to Vacate Order Court Lacked Authority

to Enforce and Resumption of Post Conviction Relief Act Petition Filed

Pursuant to 42 Pa.C.S.A. § 9545(b)(1)(ii), which we treat as a motion filed

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

9546.      We vacate the court’s order and remand for the appointment of

counsel.

        We summarize the relevant procedural history of this case as

determined from the certified record as follows. The trial court held a jury

trial from April 23 to April 30, 2008, at the above-stated docket numbers.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S48039-17



On April 30, 2008, the jury convicted Appellant of one count each of

possession with intent to deliver a controlled substance (PWID), conspiracy

to commit PWID, criminal use of a communication facility, and possession of

drug paraphernalia at Docket No. 785-2007.1 The jury convicted him of six

counts of PWID and one count of criminal use of a communication facility at

Docket No. 2119-2007.

       On August 7, 2008, the trial court sentenced Appellant to an aggregate

term of not less than 103 nor more than 264 months’ incarceration, followed

by eleven years of probation. This Court affirmed the judgment of sentence

on July 22, 2010, after his direct appeal rights were reinstated nunc pro

tunc, via his filing of a successful PCRA petition. (See Commonwealth v.

Braxton, 6 A.3d 570 (Pa. Super. 2010)).          Our Supreme Court denied his

petition for allowance of appeal on March 30, 2011. (See Commonwealth

v. Braxton, 19 A.3d 1049 (Pa. 2011)).

       Procedurally convoluted PCRA litigation ensued, culminating in this

Court’s remand to the PCRA court on December 13, 2013, for a

determination on the applicability of the newly discovered facts exception to

Appellant’s facially untimely PCRA petition.        (See Commonwealth v.

Braxton, 2013 WL 11248850, at *4 (Pa. Super. filed Dec. 13, 2013)); see

also 42 Pa.C.S.A. § 9545(b)(1)(ii).

____________________________________________


1
  35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 903(a)(1), 7512(a); and 35
P.S. § 780-113(a)(32), respectively.



                                           -2-
J-S48039-17



       Upon remand, the court held a hearing on November 25, 2015, at

which Appellant was represented by counsel.           At that hearing, Appellant

withdrew his PCRA petition and waived his appeal and PCRA rights.           (See

N.T. PCRA Hearing, 11/25/15, at 2).              In exchange, pursuant to an

agreement reached by Appellant and the Commonwealth, the court

sentenced Appellant to a reduced aggregate sentence of not less than time

served nor more than 264 months’ incarceration, followed by two years of

probation.    (See id. at 2-4).       On January 21, 2016, the court entered a

written order stating that it had vacated Appellant’s original August 7, 2008,

sentence and it set forth the new reduced sentence imposed pursuant to the

November 25, 2015 agreement of the parties.            (See Order, 1/21/16, at

unnumbered pages 1-2). Appellant did not file a direct appeal from the new

sentence.

       On June 21, 2016, while he was represented by counsel, Appellant

filed a pro se motion seeking to vacate the January 21, 2016 order and

resume his PCRA petition.         The trial court denied the petition on July 27,

2016, because it did not recognize hybrid representation. 2 It subsequently

granted counsel’s motion to withdraw.

       On September 30, 2016, Appellant filed the underlying pro se “Motion

to Vacate Order Court Lacked Authority to Enforce and Resumption of


____________________________________________


2
    See Commonwealth v. Ellis, 626 A.2d 1137, 1141 (Pa. 1993).



                                           -3-
J-S48039-17



[PCRA] Petition Filed Pursuant to 42 [Pa.C.S.A. §] 9545(b)(1)(ii)[.]”

(Motion, 9/30/16) (some capitalization omitted).     In the motion, Appellant

sought to vacate the court’s January 21, 2016 order and the November 25,

2015 sentence, claiming that the new sentence is illegal and that he could

not agree to an illegal sentence. (See id. at unnumbered pages 2-3). The

court entered its order denying the motion on January 19, 2017. Appellant

timely appealed on February 10, 2017.3

       Appellant raises the following questions for review:

       I. Did the [trial] court err and abuse its discretion when
       guaranteeing Appellant would receive immediate parole as part
       of an agreement absent statutory authorization?

       II. Did [the trial] court err when it re-sentenced Appellant to a
       mandatory sentence using an unconstitutional statute?

       III. Did not Appellant’s court appointed counsel prove to be
       ineffective when negotiating an agreement with the District
       Attorney’s Office predicated on an unconstitutional statute?

(Appellant’s Brief, at 2).

       Preliminarily, we must address whether the trial court should have

treated Appellant’s pro se post-sentence filing as a PCRA petition. As noted,

he challenges the legality of his new sentence.

____________________________________________


3
  Although the court did not order Appellant to file a concise statement of
errors complained of on appeal, see Pa.R.A.P. 1925(b), he filed a Rule
1925(b) statement on March 6, 2017. The court entered an opinion on April
17, 2017, in which it stated that Appellant’s motion was an untimely post-
sentence motion. See Pa.R.A.P. 1925(a); (Trial Court Opinion, 4/17/17, at
4).



                                           -4-
J-S48039-17


             . . . We have repeatedly held that . . . any petition filed
      after the judgment of sentence becomes final will be treated as a
      PCRA petition. That [appellant] has [framed] his petition as a
      “motion to correct illegal sentence” does not change the
      applicability of the PCRA. See Commonwealth v. Guthrie, 749
      A.2d 502, 503 (Pa. Super. 2000) (appellant’s “motion to correct
      illegal sentence” must be treated as PCRA petition).

            . . . [T]he plain language of the PCRA . . . states that “[the
      PCRA] provides for an action by which . . . persons serving illegal
      sentences may obtain collateral relief.” 42 Pa.C.S.A. § 9542;
      see Commonwealth v. Hockenberry, 455 Pa. Super. 626, 689
      A.2d 283, 288 (1997) (legality of sentence is cognizable issue
      under PCRA). Further, the Act provides that “[t]he [PCRA] shall
      be the sole means of obtaining collateral relief and encompasses
      all other common law and statutory remedies for the same
      purpose. . . . ” 42 Pa.C.S.A. § 9542[.] . . .

Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011), appeal

denied, 47 A.3d 845 (Pa. 2012) (some citations and quotation marks

omitted).

      Here, based on the foregoing legal authority, we conclude that the trial

court should have treated Appellant’s motion, filed after his judgment of

sentence became final, as a timely first PCRA petition. See id.; see also 42

Pa.C.S.A. § 9545(b)(3) (providing judgment becomes final at expiration of

time for seeking direct review).

      Furthermore, it is well-settled that, “[p]ursuant to the rules of criminal

procedure and interpretive case law, a criminal defendant has a right to

representation of counsel for purposes of litigating a first PCRA petition

through the entire appellate process.” Commonwealth v. Robinson, 970

A.2d 455, 457 (Pa. Super. 2009) (en banc) (citing Pa.R.Crim.P. 904(C))

(case citations omitted).    At first blush, while it does appear that the


                                     -5-
J-S48039-17



substantive argument set forth in Appellant’s pro se motion is meritless, “[a

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

of the merits of his claim[.]”       Commonwealth v. Wiley, 966 A.2d 1153,

1159 (Pa. Super. 2009) (citation omitted). “While this entitlement may be

waived, petitioner may do so only after addressing his entitlement to

appointed counsel with the PCRA court.”          Commonwealth v. Evans, 866

A.2d 442, 446 (Pa. Super. 2005) (citations omitted) (remanding to PCRA

court to assess appellant’s indigence).4

       The record in the instant case reflects that Appellant was not afforded

the assistance of counsel in pursuing what amounts to his first PCRA

petition. Therefore, we vacate the trial court’s January 19, 2017 order and

remand for the appointment of counsel and further proceedings under the

PCRA consistent with this memorandum.

       Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/19/2017

____________________________________________


4
  We recognize that Appellant waived his PCRA rights, and leave it to the
trial court to determine the effect of that waiver, if any, following the
appointment of counsel and counsel’s opportunity to review the entire
record. (See N.T. PCRA Hearing, 11/25/15, at 2).



                                           -6-
