J-S67037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DENNIS WILLIAM O’HARA,

                            Appellant                 No. 674 MDA 2015


                Appeal from the Order Entered January 20, 2015
                  in the Court of Common Pleas of York County
               Criminal Division at No.: CP-67-CR-0005631-1999


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

JUDGMENT ORDER BY PLATT, J.:                      FILED JANUARY 13, 2016

        Appellant, Dennis William O’Hara, appeals pro se from the order

denying reconsideration of the court’s previous denial of his “Motion to

Vacate Sentence.” Appellant’s motion should have been treated as a PCRA

petition.    Because this is Appellant’s first PCRA petition, and the record

confirms he is indigent, under controlling authority the court should have

appointed counsel for him. We vacate and remand for the appointment of

counsel.

        On August 26, 2014, Appellant filed a pro se “Notice of Motion to

Vacate Sentence” seeking to vacate the sentence imposed on June 12,

2000. The court imposed a sentence concurrent to one he had received in
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S67037-15


the previous month after a separate plea in another county (Cumberland).

Appellant concedes that his negotiated plea was honored.         (See Notice of

Motion to Vacate Sentence, 8/26/14).          Nevertheless, he complains that

federal authorities are treating the two guilty pleas separately, increasing

his federal sentence.

      The trial court denied the motion to vacate, rejecting any breach of the

plea agreement, and noting it lacked jurisdiction over federal courts. (See

Order Denying Motion to Vacate Sentence, 11/03/14).               In the order

Appellant purports to appeal from, the trial court denied reconsideration of

its prior order, referencing the order dated October 31, 2014 (filed

11/03/14) and adding that Appellant had filed an untimely post-sentence

motion under Pa.R.Crim.P. 720(a).        (See Order Denying Reconsideration,

1/20/15).

      We are constrained to conclude that the trial court should have treated

the motion as a first PCRA petition. See Commonwealth v. Johnson, 803

A.2d 1291, 1293 (Pa. Super. 2002) (“any petition filed after the judgment of

sentence becomes final will be treated as a PCRA petition”) (citation

omitted). Therefore, the court should have appointed counsel for Appellant’s

first PCRA petition.    See Pa.R.Crim.P. 904(C) (“the judge shall appoint

counsel to represent the defendant on the defendant’s first petition for post-

conviction collateral relief.”).   An indigent petitioner is entitled to counsel




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without regard to the merits of the petition.     See Commonwealth v.

Kutnyak, 781 A.2d 1259, 1262 (Pa. Super. 2001).

     “It is well-established that a first-time PCRA petitioner whose petition

appears untimely on its face is entitled to representation for assistance in

determining whether the petition is timely or whether any exception to the

normal time requirements is applicable.”    Commonwealth v. Ramos, 14

A.3d 894, 895 (Pa. Super. 2011) (citations omitted).

     Accordingly, we vacate and remand for the appointment of counsel

and proceedings consistent with this decision.

     Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2016




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