J-A20023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

CHRISTOPHER ZIEMBA

                        Appellant                   No. 60 MDA 2017


           Appeal from the Order Entered December 13, 2016
            In the Court of Common Pleas of Wyoming County
           Criminal Division at No(s): CP-66-CR-0000324-2013


BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY PANELLA, J.                 FILED FEBRUARY 09, 2018

     A jury convicted Appellant, Christopher Ziemba, of open lewdness,

indecent exposure, stalking, and two counts of disorderly conduct. The trial

court sentenced him to an aggregate term of imprisonment of eight to 23 ½

months of imprisonment, to be followed by twelve months of probation on

January 14, 2015. This Court affirmed his judgment of sentence by order

dated March 16, 2016.

     On November 21, 2016, Ziemba filed a pro se motion entitled

“Defendant’s Motion for Ineffective Assistance of Trial Counsel and a New

Trial.” The trial court dismissed the motion, and Ziemba filed this pro se

appeal.

     Ziemba filed the November 21, 2016, motion after his judgment of

sentence had become final. See Pa.R.A.P. 1113 (petition for allowance of
J-A20023-17


appeal from Superior Court order must be filed within 30 days); 42 Pa.C.S.A.

9545(b)(3) (judgment of sentence becomes final at expiration of time for

seeking review). Furthermore, his motion alleged ineffective assistance of

trial counsel.

         Under these circumstances, his motion should have been treated as

petition    pursuant   to   the   Post   Conviction   Relief   Act   (“PCRA”).   See

Commonwealth v. Taylor, 65 A.3d 462, 467-468 (Pa. Super. 2013)

(finding “untimely post-sentence motion filed after finality of judgment is to

be treated as a PCRA petition,” if it raises issues cognizable under the

PCRA). We therefore remand for an assessment of Ziemba’s claims pursuant

to the PCRA.

         We note the court denied Ziemba’s petition for in forma pauperis

status. Ziemba has challenged this denial on appeal and asserted that his

employment status changed as of January 1, 2017. In light of our remand,

we direct the PCRA court to determine whether Ziemba currently qualifies as

indigent and, if so, appoint him counsel. See Commonwealth v. Stossel,

17 A.3d 1286, 1290 (Pa. Super. 2011). Furthermore, we deny, as moot, the

Commonwealth’s motion to dismiss Ziemba’s appeal due to defects in his

brief.

         Order vacated. Case remanded for further proceedings consistent with

this order. Commonwealth’s motion to dismiss is denied. Jurisdiction

relinquished.


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J-A20023-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/09/2018




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