J-S62011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID RAY BISH,

                            Appellant                 No. 220 WDA 2015


                    Appeal from the Order January 19, 2015
               in the Court of Common Pleas of Jefferson County
               Criminal Division at No.: CP-33-CR-0000210-2009


BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED NOVEMBER 30, 2015

        Appellant, David Ray Bish, appeals pro se from the order denying his

motion for reconsideration of sentence.           Because we conclude that

Appellant’s request for relief should have been treated as a first petition filed

pursuant to the Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546, we

vacate and remand for appointment of counsel.

        The background facts and procedure of this case are as follows. On

June 30, 2009, the Commonwealth filed an information against Appellant

charging him with possession with intent to deliver (PWID)1 250 grams of

methamphetamine, and related charges.          On February 2, 2011, Appellant
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
J-S62011-15


pleaded guilty to PWID, and the Commonwealth nolle prossed the remaining

charges.     On February 3, 2011, the court sentenced Appellant to a

mandatory term of not less than five nor more than ten years’ incarceration,

plus fees and costs.     Appellant did not file post-trial motions or a direct

appeal, and his judgment of sentence became final on March 5, 2011. See

Pa.R.Crim.P. 720(A)(3); 42 Pa.C.S.A. § 9545(b)(3).       Plea counsel filed a

motion to withdraw his appearance, which the court granted on March 7,

2011.

        Nearly four years later, on January 14, 2015, Appellant filed a pro se

motion for reconsideration of sentence on the basis of Alleyne v. U.S., 133

S. Ct. 2151 (2013). On January 19, 2015, the court denied the motion as

untimely. Appellant timely appealed on February 4, 2015, and filed a timely

Rule 1925(b) statement on February 25, 2015 pursuant to the court’s order.

See Rule 1925(b).      The court filed an opinion on March 9, 2015.       See

Pa.R.A.P. 1925(a).

        Appellant raises two questions for our review: “1. Did the trial court

abuse its discretion by dismissing Appellant’s motion for reconsideration of

sentence in light of recent Superior Court and Supreme Court decisions?”

and “2. Did the trial court impose an unconstitutional mandatory minimum

sentence?”     (Appellant’s Brief, at 4 (internal quotation marks and most

capitalization omitted)).




                                     -2-
J-S62011-15


     Before we reach the merits of Appellant’s issues, we must determine

whether Appellant’s request for relief should be considered an untimely post-

sentence motion or a PCRA petition.

     It is well-settled that:

           . . . Despite the ten-day time limit for post-sentence
     motions, there are occasions when such motions may be treated
     as petitions under the [PCRA]. The content of the motion—just
     exactly what is pled and requested therein—is relevant to
     deciding whether to treat the motion as a collateral petition.
     See Commonwealth v. Lutz, 788 A.2d 993, 996 n. 7 (Pa.
     Super. 2001) (holding that, generally, a filing that raises issues
     cognizable under the PCRA will be considered a PCRA petition
     while a filing requesting relief outside the PCRA will not be so
     treated).

Commonwealth v. Wrecks, 931 A.2d 717, 720 (Pa. Super. 2007) (one

citation omitted); see also Commonwealth v. Taylor, 65 A.3d 462, 465-

66 (Pa. Super. 2013) (“[T]he PCRA is intended to be the sole means of

achieving post-conviction relief[]” and “any petition filed after the judgment

of sentence becomes final will be treated as a PCRA petition.”) (citations

omitted).

     Here, Appellant filed his motion nearly four years after the imposition

of his judgment of sentence. Therefore, it is well beyond the ten-day time

limit for filing a post-sentence motion. Appellant’s motion raised an illegal

sentencing issue based on Alleyne.      (See Motion for Reconsideration of

Sentence, 1/14/15, at unnumbered page 1); see also Commonwealth v.

Watley, 81 A.3d 108, 117-18 (Pa. Super. 2013), appeal denied, 95 A.3d

277 (Pa. 2014) (“Alleyne . . . implicate[s] Pennsylvania’s legality of

                                      -3-
J-S62011-15


sentencing construct”). Claims of an illegal sentence are cognizable under

the PCRA. See 42 Pa.C.S.A. § 9542 (“This subchapter provides for an action

by which persons . . . serving illegal sentences may obtain collateral relief.”).

Therefore, Appellant’s motion should have been treated as a first PCRA

petition.

      Our standard of review for the denial of PCRA relief is “whether the

court’s findings are supported by the record and whether the order is free of

legal error.”   Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.

Super. 2001) (citation omitted).

      We observe that:

      an unrepresented petitioner who is indigent has a right to court-
      appointed counsel to represent him on his first PCRA petition.
      The denial of PCRA relief cannot stand unless the petitioner was
      afforded the assistance of counsel. The PCRA court may not first
      evaluate the merits of the petition, as was done in this case, and
      then [not appoint] 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 (citations and quotation marks omitted).

      Here, the court did not appoint PCRA counsel, and instead reviewed

the motion on its merits, finding that, if it was in fact a PCRA petition, it was




                                      -4-
J-S62011-15


untimely pursuant to 42 Pa.C.S.A. § 9545(b)(1),2 and that Appellant failed

to plead and prove a timeliness exception.           (See Trial Court Opinion,

3/09/15, 1-2).3 We are constrained to conclude that this was error. Before

considering the merits of Appellant’s pro se first PCRA petition, the court

should have appointed PCRA counsel.              See Kutnyak, supra at 1262

(Holding that, “as this is [a]ppellant’s first PCRA petition, he is entitled to

counsel to represent him despite any apparent untimeliness of the petition

or the apparent non-cognizability of the claims presented.”).

       Hence, we vacate and remand for the appointment of counsel and

proceedings consistent with this decision.

       Order vacated. Case remanded. Jurisdiction relinquished.




____________________________________________


2
  Section 9545(b) of the PCRA provides, in pertinent part: “Any petition
under this subchapter . . . shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the petitioner
proves” the applicability of one of the enumerated timeliness exceptions. 42
Pa.C.S.A. § 9545(b)(1).
3
  The court also found that, if it considered Appellant’s request for relief a
post-trial motion, it lacked jurisdiction to decide it pursuant to 42 Pa.C.S.A.
§ 5505. (See Trial Ct. Op., at 1).



                                           -5-
J-S62011-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2015




                          -6-
