J-S19031-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                   Appellee               :
                                          :
              v.                          :
                                          :
MARQUIS WALKER,                           :
                                          :
                   Appellant              :           No. 2459 EDA 2014

                Appeal from the Order entered on July 17, 2014
                in the Court of Common Pleas of Lehigh County,
               Criminal Division, No(s): CP-39-CR-0004363-2013;
                            CP-39-CR-0004364-2013

BEFORE: STABILE, JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED MARCH 31, 2015

        Marquis Walker (“Walker”), pro se, appeals from the Order denying his

Motion to Modify Sentence Nunc Pro Tunc (hereinafter “Petition for Relief”).

We vacate the Order and remand for further proceedings.

        On December 11, 2013, Walker, pursuant to a negotiated plea

agreement, pled guilty to two counts of possession with intent to deliver

(heroin) (“PWID”),1 at two separate docket numbers. On the same date, in

accordance with the plea agreement, the trial court sentenced Walker to an

aggregate term of three to ten years in prison, ordering the sentences

imposed on both PWID convictions to run concurrently.         Notably to the




1
    35 P.S. § 780-113(a)(30).
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instant appeal, Walker’s trial counsel did not file a post-sentence motion or a

direct appeal.

        Approximately seven months later, on July 9, 2014, Walker filed the

Petition for Relief, asserting, inter alia, that although he entered a guilty

plea, he did so only after reaching an agreement with his trial counsel that

counsel would file a post-sentence motion. However, according to Walker,

he did not discover that trial counsel failed to file any post-sentence motion

until several months later. By an Order entered on July 14, 2014, the trial

court denied the Petition for Relief. Specifically, the trial court determined

that (1) the Petition was not timely filed under Pa.R.Crim.P. 720 (mandating

that post-sentence motions must be filed within ten days after the judgment

of sentence is imposed); and (2) Walker failed to present any extenuating

circumstances that would justify granting him permission to file a post-

sentence motion, nunc pro tunc.        Walker timely filed a pro se Notice of

Appeal from the July 14, 2014 Order.2

        On appeal, Walker argues that the trial court erred by denying his

Petition for Relief, since trial counsel was ineffective for failing to file a

requested post-sentence motion. See Brief for Appellant at 6-7;3 see also

Petition for Relief, 7/9/14, at 2.


2
    Walker is proceeding in forma pauperis in this appeal.
3
  Because we are vacating the Order on appeal, we will not set forth herein
Walker’s Statement of Questions Presented, which is included on page 4 of
his brief.


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      The Commonwealth correctly concedes that the Petition for Relief,

alleging trial counsel’s ineffectiveness, was in the nature of a timely, first

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546, as it raised an issue cognizable under the PCRA and was filed

within one year after Walker’s judgment of sentence became final. See Brief

for the Commonwealth at 6-7; see also Commonwealth v. Holmes, 79

A.3d 562, 583 (Pa. 2013) (stating that “claims of ineffective assistance of

trial counsel are cognizable under the PCRA, 42 Pa.C.S. § 9543(a)(2)(ii), and

such claims routinely form the bulk of the claims raised on initial PCRA

review[.]”).

      However, the trial court failed to appoint Walker counsel to assist him

in this proceeding involving his first PCRA Petition.   Pennsylvania Rule of

Criminal Procedure 904(C) provides, in pertinent part, that “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) (emphasis added);        see also

Commonwealth v. Henkel, 90 A.3d 16, 22-23 (Pa. Super. 2014) (en banc)

(applying Rule 904(C) and collecting cases); Commonwealth v. Padden,

783 A.2d 299, 308 (Pa. Super. 2001) (stating that “[i]t is abundantly clear

that a first-time pro se PCRA petitioner is entitled to the benefit of the




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assistance of counsel to help identify and properly present potentially

meritorious issues for the trial court’s consideration.”).

       As an indigent first-time PCRA petitioner, Walker is entitled to the

appointment of counsel to represent him throughout the post-conviction

collateral proceedings, including any appeal from the disposition of his first

PCRA petition.      See Pa.R.Crim.P. 904(C), (F)(2).         Accordingly, we must

vacate the trial court’s July 14, 2014 Order and remand for the appointment

of PCRA counsel, or a Grazier4 hearing if Walker wishes to proceed pro se.

       Order vacated; case remanded for the appointment of PCRA counsel

and/or    further   proceedings   in   accordance    with     this   Memorandum;

jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/31/2015




4
    See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


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