J-S52036-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                      :      IN THE SUPERIOR COURT OF
                                                   :            PENNSYLVANIA
                   Appellee                        :
                                                   :
           v.                                      :
                                                   :
ANDREW GEORGE MILLER,                              :
                                                   :
                   Appellant                       :     No. 166 MDA 2018

                   Appeal from the Order Entered January 4, 2018
                   in the Court of Common Pleas of Perry County,
                Criminal Division, at No(s): CP-50-CR-0000490-2011

BEFORE:         BENDER, P.J.E., MCLAUGHLIN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                               FILED OCTOBER 25, 2018

        Andrew George Miller (Appellant) appeals pro se from the January 4,

2018 order that denied his petitions for a writ of habeas corpus. We vacate

the   order     and   remand      for   further    proceedings       consistent   with    this

memorandum.

        In 2014, Appellant pleaded nolo contendere to five counts of

aggravated indecent assault and was sentenced to an aggregate term of five

to 15 years of imprisonment.            No direct appeal was filed.          On August 3,

2017,    Appellant    filed   a   petition   for       writ   of   habeas   corpus   at   the




*Retired Senior Judge assigned to the Superior Court.
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aforementioned docket number.           A subsequent petition was filed on

November 27, 2017.1

      In these petitions, Appellant challenges the legality of his sentence

pursuant to our Supreme Court’s decision in Commonwealth v. Muniz, 164

A.3d 1189 (Pa. 2017) (holding that certain registration provisions of

Pennsylvania’s Sex Offender Registration and Notification Act (SORNA) are

punitive and retroactive application of those provisions violates the ex post

facto clause of the Pennsylvania constitution). On January 3, 2018, the trial

court denied Appellant relief, finding, inter alia, that Appellant’s “lifetime

registration was not applied retroactively to him under SORNA, but instead

was applied at the time of sentencing based on his convictions for

aggravated indecent assault[.]” Order, 1/4/2018, at 1 (unnumbered;

unnecessary capitalization omitted).2

      Appellant timely filed a notice of appeal, and both Appellant and the

trial court complied with Pa.R.A.P. 1925.     In his appellate brief, Appellant


1
   Unlike his initial petition, Appellant’s second habeas corpus petition was
filed at the above-referenced docket number and at docket number CP-50-
CR-0000489-2011 (489-2011). Thus, although not labelled as such, it
appears Appellant’s subsequent filing was an amended habeas petition.

2
 Although the trial court only referred to Appellant’s “petition,” in its January
3, 2018 order denying Appellant’s requested relief, we presume that this
order pertained to both petitions, which raised materially similar issues
concerning Muniz. In light of our disposition, we need not address this in
detail. However, in the future, when presented with multiple filings, trial
courts must clarify which petition(s) the order intends to deny.




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challenges the retroactive application of SORNA to his sentence. Appellant’s

Brief at i-ii.3

       Before we consider the substance of Appellant’s claims, we must

determine the proper framework for our review. The first principle of note is

that “the PCRA subsumes all forms of collateral relief, including habeas

corpus, to the extent a remedy is available under such enactment.”

Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007). A claim that a



3
  In his November 27, 2017 habeas corpus petition, and now on appeal,
Appellant raises claims regarding his sentence at the above-referenced
docket number (490-2011) and at docket number 489-2011. See Petition
for State Writ of Habeas Corpus, 11/27/2017; Appellant’s Brief at 5-8.
However, Appellant filed a notice of appeal and concise statement of matters
complained of on appeal only relative to docket number 490-2011. Notice of
Appeal, 1/12/2018; Concise Statement of Matters Complained of on Appeal,
2/8/2018. “We therefore lack jurisdiction to review the sentence imposed at
docket number” 489-2011. Commonwealth v. Hardy, 99 A.3d 577, 579
(Pa. Super. 2014). Thus, this Court may only address Appellant’s issues as
they relate to docket number 490-2011.

       While we cannot consider 489-2011 for the reason cited supra, we
note that in March 2017, Appellant filed pro se a post-conviction relief act
(PCRA) petition at docket number 489-2011 only. The PCRA court, without
appointing counsel, dismissed Appellant’s PCRA petition, and Appellant
appealed to this Court. Because a petitioner is entitled to the appointment
of counsel to assist in the preparation of a first PCRA petition, this Court
remanded the case to the PCRA court, directing the court to inquire with
Appellant as to whether he desired to have counsel appointed. After a
hearing, counsel was appointed and proceeded to represent Appellant in his
appeal as it pertained to docket number 489-2011. Similarly, because
Appellant’s habeas corpus petitions at the underlying docket here, 490-
2011, should have been treated as his first PCRA petition, Appellant is
likewise entitled to counsel, and for this reason, as stated in more detail
infra, we remand for the appointment of counsel.




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petitioner’s   sentence   is   illegal    is   cognizable   under   the   PCRA.

Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011); 42

Pa.C.S. § 9543(a)(2)(vii). Accordingly, despite Appellant’s protestations to

the contrary, his habeas corpus petitions, as they relate to docket number

490-2011 should have been treated as his first PCRA petition.

      Second, “before the trial court disposes of a [PCRA] petition, it must

first make a determination as to the petitioner’s indigence and if the

petitioner is indigent, the court must appoint counsel to assist in the

preparation of said petition.”    Commonwealth v. Hampton, 718 A.2d

1250, 1253 (Pa. Super. 1998) (quoting Commonwealth v. Van Allen, 597

A.2d 1237, 1239 (Pa. Super. 1991)) (emphasis omitted). Even if, as seems

to be the case here,

      a PCRA defendant indicates a desire to represent himself, it is
      incumbent upon the PCRA court to elicit information from the
      defendant that he understands the items outlined in Pa.R.Crim.P.
      121(A)(2)(a), (d), (e), and (f). A court must explain to a
      defendant that he has the right to counsel, in accordance with
      (a), that he is bound by the rules as outlined in (d), and that he
      may lose rights, as indicated in (f). Subsection (e) must be
      appropriately tailored so that a defendant is informed that “there
      are possible defenses to these charges that counsel might be
      aware of, and if these defenses are not raised [in a PCRA
      petition], they may be lost permanently.”

Commonwealth v. Robinson, 970 A.2d 455, 459-60 (Pa. Super. 2009).

See also Petition for Writ of Habeas Corpus, 8/3/2017, at 2 (requesting the

trial court to allow Appellant “to exercise his right to [pro se l]itgation and




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[d]enotes [(sic)] [c]ounsel for the purposes of this [habeas corpus]

proceeding.”) (unnumbered).

     Upon review of the record, we find the trial court dismissed Appellant’s

pro se petitions without making the proper determinations and inquiries

cited supra. Thus, because “[t]he denial of PCRA relief cannot stand unless

the petitioner was afforded the assistance of counsel,” Commonwealth v.

Albrecht, 720 A.2d 693, 699 (Pa. 1998), remand is necessary for

appointment of counsel or a waiver colloquy that satisfies Pa.R.Crim.P. 121.4

     Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.




4 Furthermore, the apparent untimeliness of Appellant’s petition does not
render harmless the failure to appoint counsel or to hold a proper waiver
colloquy. See, e.g., Commonwealth v. Smith, 818 A.2d 494, 501 (Pa.
2003) (“[A]n indigent petitioner, whose first PCRA appears untimely, is
entitled to the assistance of counsel in order to determine whether any of
the exceptions to the one-year time limitation appl[ies].”); Commonwealth
v. Kutnyak, 781 A.2d 1259, 1262 (Pa. Super. 2001) (holding it was error to
dismiss the PCRA petition before appointing counsel, “despite any apparent
untimeliness of the petition or the apparent non-cognizability of the claims
presented”).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/25/2018




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