J-S18035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ERIC J. WAGNER

                            Appellant                No. 2079 EDA 2014


                     Appeal from the Order June 18, 2014
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0005349-2010
                                          CP-39-CR-0005350-2010
                                          CP-39-CR-0005351-2010
                                          CP-39-CR-0005352-2010
                                          CP-39-CR-0005354-2010
                                          CP-39-CR-0005356-2010
                                          CP-39-CR-0005357-2010
                                          CP-39-CR-0005359-2010

BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

JUDGMENT ORDER BY MUNDY, J.:                         FILED APRIL 02, 2015

        Appellant, Eric J. Wagner, appeals pro se from the June 18, 2014 order

dismissing his “Petition for Pre-Confinement Credit.”    After careful review,

we vacate and remand with instructions.

        On May 12, 2012, the trial court imposed an aggregate sentence of

four to eight years’ imprisonment, plus seven years’ probation, following a

negotiated guilty plea to three counts of possession with intent to deliver. 1

On May 18, 2012, Appellant filed a timely post-sentence motion, which the
____________________________________________
1
    35 P.S. § 780-113(a)(30).
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trial court granted on June 22, 2012, awarding Appellant certain credit for

time served. Appellant did not file a direct appeal with this Court.

      On June 16, 2014, Appellant filed the instant pro se “Petition for Pre-

Confinement Credit,” asking the trial court to award him additional time

credit for time spent while under house arrest. Appellant’s Petition for Pre-

Confinement Credit, 6/16/14, at 3.           This Court has held that a motion

requesting credit for time served is to be treated as a petition under the Post

Conviction   Relief    Act    (PCRA),   42   Pa.C.S.A.   §§   9541-9546.    See

Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004) (stating,

“[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 i]ssues

concerning the legality of sentence are cognizable under the PCRA[]”)

(citations omitted).    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

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).

      Here, the record reveals that Appellant’s pro se petition was the first

filing Appellant submitted after the trial court granted his post-sentence


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motion on June 22, 2012.      Furthermore, the record reveals that the trial

court did not treat this as a PCRA petition, nor did it appoint counsel.

Therefore, on remand, the trial court shall treat said filing as a first PCRA

petition and appoint counsel under Rule 904(C).

      Based on the foregoing, we conclude the trial court erred when it did

not treat Appellant’s pro se “Petition for Pre-Confinement Credit” as his first

PCRA petition and appoint counsel.      Accordingly, the trial court’s June 18,

2014 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: 4/2/2015




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