J-S22020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

 CHARLES WASHINGTON

                             Appellant                No. 2562 EDA 2016


               Appeal from the PCRA Order entered July 20, 2016
                In the Court of Common Pleas of Lehigh County
               Criminal Division at No: CP-39-CR-0002109-2014


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY STABILE, J.:                              FILED JULY 16, 2018

       Appellant, Charles Washington, appeals from the July 20, 2016 order

entered in the Court of Common Pleas of Lehigh County, denying his first

petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-46. Upon review, we vacate and remand.

       The underlying facts are not at issue here. Thus, there is no need to

recite the factual background. We must, however, summarize the relevant

procedural history.

       On July 10, 2015, [Appellant] entered pleas of guilty to Criminal
       Homicide, Murder of the Third Degree (18 Pa.C.S.A. § 2501(a)),
       Robbery (18 Pa.C.S.A. § 3701(a)(1)(i)), and Criminal Conspiracy
       to Commit Robbery (18 Pa.C.S.A. § 903(c)). In exchange for the
       guilty pleas, the Commonwealth agreed to set [Appellant]’s
       minimum sentence at thirty-five (35) years. [Appellant] agreed
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* Retired Senior Judge assigned to the Superior Court.
J-S22020-18


       to waive any and all appeal rights. On the same date, [the trial
       court] sentenced [Appellant], in compliance with the terms of the
       plea agreement, to an aggregate term of state imprisonment of
       not less than thirty-five (35) years nor more than eighty (80)
       years. Thereafter, on July 19, 2016, in contravention of the plea
       agreement, [Appellant] filed a Motion for Post Conviction
       Collateral Relief [alleging ineffective assistance of counsel]. [The
       PCRA court] denied said motion on July 20, 2016. The within
       appeal followed on August 11, 2016.

PCRA Court Opinion, 8/22/16, at 1-2.1

       The PCRA court denied Appellant’s first PCRA petition, without

appointing him counsel, because: (i) Appellant “waived his appellate rights,

including the filing of a [PCRA] petition as part of his negotiated plea

agreement,” and (ii) the independent review of plea counsel’s effectiveness

following his guilty plea showed no indicia of ineffectiveness.     PCRA Court

Opinion, 8/22/16, at 2.

       Appellant argues the PCRA court erred in denying Appellant’s first

timely PCRA petition without appointing him counsel. We agree.

       “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).



____________________________________________


1 Following the filing of the instant appeal, the PCRA court granted Appellant
leave to proceed in forma pauperis and appointed counsel to represent him
in the instant appeal.



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       Appellant was entitled to appointment of counsel, prior to disposition of

the petition (his first), regardless of the merits of the same.2     See, e.g.,

Pa.R.Crim.P. 904(C).3       As we noted in Commonwealth v. Kutnyak, 781

A.2d 1259 (Pa. Super. 2001),

       [t]he PCRA court may not first evaluate the merits of the petition,
       as was done in this case, and then deny the appointment of
       counsel because the petition lacks merit. To do so undermines
       the very purpose of appointing counsel and thwarts the intent of
       the Legislature in providing counsel to indigent petitioners in
       collateral proceedings. The issue of whether the petitioner is
       entitled to relief is another matter entirely, which is to be
       determined after the appointment of counsel and the opportunity
       to file an amended petition.

Id. at 1262 (internal citation omitted).

       Because the PCRA court erred in not appointing counsel for Appellant,

we are constrained to vacate the order denying Appellant’s first PCRA

petition, and remand the matter to the PCRA court for the appointment of

counsel.

       Order vacated.      Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.


____________________________________________


2 The Commonwealth agrees that Appellant was entitled to counsel, and that
the PCRA court erred in not appointing one prior to dismissing Appellant’s
first PCRA petition. Commonwealth’s Brief at 5-8.

3 Rule 904(C) provides: “Except as provided in paragraph (H) [pertaining to
death penalty cases], when an unrepresented defendant satisfies the judge
that the defendant is unable to afford or otherwise procure counsel, the judge
shall appoint counsel to represent the defendant on the defendant’s first
petition for post-conviction collateral relief.” Pa.R.Crim.P. 904(C).


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J-S22020-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/16/18




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