J-S37031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

BLAISE P. TUNSTALL

                        Appellant                   No. 1668 WDA 2015


             Appeal from the PCRA Order September 23, 2015
              In the Court of Common Pleas of Mercer County
            Criminal Division at No(s): CP-43-CR-0000145-2013


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

JUDGMENT ORDER BY LAZARUS, J.:                         FILED MAY 26, 2016

      Blaise Tunstall appeals from the order of the Court of Common Pleas of

Mercer County that dismissed his petition filed pursuant to the Post-

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.        We vacate the

order and remand for appointment of counsel.

      Tunstall pled guilty to aggravated indecent assault on July 2, 2013.

On November 21, 2013, the court imposed a sentence of five to ten years’

incarceration, based on the mandatory minimum sentencing provisions of 42

Pa.C.S. § 9718(a) (sentences for offenses against infant persons). Tunstall

did not file a direct appeal.   Accordingly, for purposes of the PCRA, his

judgment of sentence became final on December 21, 2013, when the period

in which to file a notice of appeal expired. See Pa.R.A.P. 903(a).
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       On August 24, 2015, Tunstall, acting pro se, filed a first PCRA petition

challenging the legality of his sentence and raising an exception to the one-

year time bar for claims under the PCRA. See 42 Pa.C.S. § 9545(b).

       On August 31, 2015, without appointing counsel, the court issued a

notice of intent to dismiss pursuant to Pa.R.Crim.P. 907.                  The court

dismissed the petition on September 23, 2015, and this appeal followed.

       “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 [PCRA] relief.” Pa.R.Crim.P. 940(C). “The denial of PCRA relief cannot

stand unless the petitioner was afforded the assistance of counsel.                 An

indigent petitioner is entitled to appointment of counsel on his first PCRA

petition,   even    where     the    petition    appears   untimely   on   its   face.”

Commonwealth v. Perez, 799 A.2d 848, 851 (Pa. Super. 2002) (quotation

and citations omitted).

       Accordingly, we remand this matter to the Court of Common Pleas of

Mercer County to determine if Tunstall is indigent, and if so, to appoint

counsel pursuant to Pa.R.Crim.P. 904.1

       Order vacated. Case remanded for further proceedings consistent with

this order. Jurisdiction relinquished.

____________________________________________


1
  We note that on October 20, 2015, the court granted Tunstall’s application
for leave to appeal in forma pauperis.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2016




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