J-S71045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                       v.

WESLEY HERB CALMESE

                            Appellant                    No. 2137 EDA 2015


                   Appeal from the PCRA Order June 29, 2015
     in the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0006511-2009

BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.

JUDGMENT ORDER BY FITZGERALD, J.:                       FILED October 6, 2016.

        Appellant, Wesley Herb Calmese, appeals from the order entered in

the Montgomery County Court of Common Pleas denying his pro se Post

Conviction Relief Act1 (“PCRA”) petition.         We vacate the order below and

remand for the appointment of counsel.

        The facts of this case are unnecessary for our disposition.               As a

prefatory    matter,   we    consider   whether    Appellant   is   entitled to    the

appointment of counsel for his first PCRA petition, even if it is facially

untimely.

        “Because the instant appeal hinges upon a question of law, our

standard of review is plenary. In proceedings under the PCRA, the scope of

review of an appellate court is limited by the parameters of the act.”

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J-S71045-16


Commonwealth v. Smith, 818              A.2d 494, 498      (Pa. 2003).     Our

Pennsylvania Supreme Court opined:

         Rule 904 provides, in relevant 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(B) (emphasis
         added). . . . We have stated that the rules of criminal
         procedure require the appointment of counsel in PCRA
         proceedings.

                                  *    *    *

         Even though the timeliness requirements of the PCRA
         leave a court without jurisdiction to consider the merits of
         an untimely petition, they do not preclude a court from
         appointing counsel to aid an indigent petitioner in
         attempting to establish an exception to the time-bar.
         Although the PCRA court determines the issue of timeliness
         prior to reaching the merits of a PCRA petition, the PCRA
         court is not divested of its jurisdiction until it analyzes the
         facts and makes the determination that the petition is
         time-barred. Therefore, an indigent petitioner, who files
         his first PCRA petition, is entitled to have counsel
         appointed to represent him during the determination of
         whether any of the exceptions to the one-year time
         limitation apply.

Id. at 498-99 (citation omitted).2

      Instantly, the PCRA court opined:

         [I]n the interest of justice, this court concludes that
         [Appellant’s] filing should be treated as his first PCRA
         petition to which he is entitled to Counsel. . . .
         Consequently, should the Superior Court panel agree and

2
  We note that in his PCRA petition, Appellant checked the box stating “I do
not have a lawyer and I am without financial resources or otherwise unable
to obtain a lawyer.” PCRA Pet., 6/16/14, at 7.



                                      -2-
J-S71045-16


        remand the record, this court will proceed to appoint PCRA
        Counsel for review of the record for any other potential
        claims which may constitute an exception to the PCRA time
        bar.

PCRA Ct. Op., 7/11/16, at 10-11.3 We agree that Appellant is entitled to

have counsel appointed to represent him. See Smith, 818 A.2d at 498-99.

     Accordingly, we remand this matter to the PCRA court for the

appointment of counsel.

     Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/6/2016




3
  Appellant contends that he is entitled to the appointment of counsel.
Appellant’s Brief at 18. Similarly, the Commonwealth avers Appellant is
entitled to a remand for the appointment of counsel. Commonwealth’s Brief
at 7.



                                  -3-
J-S71045-16




              -4-
