J-A23032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

JAMES L. ZUCCHER

                        Appellant                   No. 1730 WDA 2014


          Appeal from the Judgment of Sentence October 1, 2014
             In the Court of Common Pleas of Mercer County
           Criminal Division at No(s): CP-43-CR-0000478-2014


BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

JUDGMENT ORDER BY GANTMAN, P.J.:                   FILED AUGUST 18, 2015

     Appellant, James L. Zuccher, appeals from the judgment of sentence

entered in the Mercer County Court of Common Pleas, following his nolo

contendere plea to driving under the influence (“DUI”) and fleeing or

attempting to elude police (“fleeing/eluding”) (75 Pa.C.S.A. §§ 3802; 3733).

On March 9, 2014, police received a report that a man who appeared to be

intoxicated was lying down in the parking lot of a bar and then got into his

vehicle and drove away. Police followed the vehicle and activated lights to

stop, but the man did not immediately pull over.       Upon the stop, Officer

Moore detected an odor of alcohol on the driver’s breath and placed the

driver under arrest for DUI.       Officer Moore recovered a driver’s license

identifying the man as Appellant.      Appellant attempted to retain a public

defender, but his request was denied based on financial ineligibility.
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Nevertheless, the court appointed stand-by counsel. On August 12, 2014,

Appellant pled nolo contendere to DUI and fleeing/eluding.          The court

sentenced Appellant on October 1, 2014, to 5 days to 6 months’

imprisonment   for   DUI   and   a   concurrent   6   months’   probation   for

fleeing/eluding. Appellant timely filed a pro se notice of appeal on October

20, 2014, and a praecipe to proceed in forma pauperis (“IFP”) that the court

denied. On October 29, 2014, the court ordered Appellant to file a Pa.R.A.P.

1925(b) concise statement; Appellant did not comply.

     Pennsylvania Rule of Criminal Procedure 122 provides:

        Rule 122. Appointment of Counsel
        (A) Counsel shall be appointed:
                                   *    *    *
              (2) in all court cases, prior to the preliminary hearing
        to all defendants who are without financial resources or
        who are otherwise unable to employ counsel;
              (3) in all cases, by the court, on its own motion, when
        the interests of justice require it.
        (B) When counsel is appointed,
                                   *    *    *
              (2) the appointment shall be effective until final
        judgment, including any proceedings upon direct appeal.

Pa.R.Crim.P. 122(A), (B). Under paragraph (A)(3), the court has authority

to appoint counsel regardless of eligibility when the interests of justice

require it. Pa.R.Crim.P. 122, Comment. As well, “when a petitioner avers a

prima facie case of poverty and an inability to pay fees and costs, the trial

court must hold a hearing before it may deny IFP status.” Commonwealth

v. Lepre, 18 A.3d 1225 (Pa.Super. 2011) (reversing denial of IFP status and

remanding for hearing where petitioner stated inability to pay fees/costs and

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his alleged debt obligations, child support, taxes, and living expenses

presented prima facie case of poverty when weighed against monthly gross

income of $1,600). Instantly, the Public Defender’s Office denied Appellant’s

request for counsel, based on financial ineligibility.   The court also denied

Appellant IFP status, without a hearing. In his IFP petition, Appellant alleged

he earns only $1,800/month in social security and $270/month in pension

and annuities.   Appellant’s rent and utilities total almost $1,000/month.

Appellant owes $250/month in loans and has other living expenses.

Appellant maintained in his IFP petition, appellate brief, and at oral

argument, his inability to pay fees/costs.     Appellant’s brief suggests he

wants counsel. Further, the record shows a potential issue implicating the

legality of Appellant’s sentence now pending before this Court, involving

merger of sentences for DUI and fleeing/eluding (while DUI).              See

Commonwealth v. Kimmel, 2014 PA Super 186 (Pa.Super. 8/29/14),

withdrawn, 2014 Pa.Super. LEXIS 3963 (Pa.Super. 10/10/14) (en banc) (per

curiam). In light of Appellant’s limited income, allegations of indigency, and

this Court’s pending en banc decision, we remand for reconsideration of

Appellant’s IFP status, the appointment of counsel in the interests of justice,

an opportunity to file a Rule 1925(b) statement, and pursue the appeal.

See Pa.R.Crim.P. 122(A)(3), Lepre, supra.

      Case remanded with instructions. Panel jurisdiction is retained.




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