J. S36040/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                  v.                    :
                                        :
KELVIN J. EDWARDS,                      :         No. 2398 EDA 2016
                                        :
                        Appellant       :


                Appeal from the Order Entered June 28, 2016,
            in the Court of Common Pleas of Montgomery County
              Criminal Division at No. CP-46-CR-0002270-2013


BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JULY 07, 2017

      Kelvin J. Edwards appeals pro se from the June 28, 2016 order

denying his “motion to amend jail credits,” which we treat as a petition filed

pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546.1 After careful review, we vacate the trial court’s June 28, 2016 order

and remand for the appointment of counsel and further proceedings

pursuant to the PCRA.




1
  See Commonwealth v. Clark, 885 A.2d 1030, 1032 (Pa.Super. 2005)
(stating, “[a] challenge to a trial court’s failure to award credit for
time-served in custody implicates the legality, not the discretionary, aspects
of sentencing and is, therefore, appealable as of right.”); Commonwealth
v. Guthrie, 749 A.2d 502, 503 (Pa.Super. 2000) (noting this court’s
approval of the trial court’s determination that an appellant’s “motion to
correct illegal sentence” must be treated as a PCRA petition); 42 Pa.C.S.A.
9543(a)(2)(vii).
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      The trial court summarized the relevant facts and procedural history of

this case as follows:

                   On January 6, 2014, in the matter indexed at
            2270-13, [appellant] pled guilty to Theft By Unlawful
            Taking[Footnote 1] and was sentenced to 11½ to
            23 months[Footnote 2] with a consecutive three[-
            ]year probation. This guilty plea constituted a direct
            violation of his probation in the matter indexed at
            5298-12. The same date, [appellant] was sentenced
            to 5 months to 12 months for the probation
            violation.    This sentence was ordered to run
            concurrently with the sentence imposed in the
            matter indexed at 2270-13.           Credit on both
            sentences dated from June 14, 2013.

                  [Footnote 1] 18 Pa.C.S.A. [§] 3921(a).

                  [Footnote 2] The statutory maximum for
                  this offense was 42 to 84 months.

                  On January 14, 2014, [appellant] filed a
            pro se “Motion for Reconsideration of Sentence.” By
            Order of February 26, 2014, th[e trial c]ourt denied
            the Motion. [Appellant] did not file a direct appeal.
            On or about March 21, 2014, [appellant] was paroled
            in the cases indexed at 2270-13 and 5298-12.

                  On May 29, 2015, [appellant] received a notice
            of violation of his parole/probation. The violation
            stemmed from new charges in Philadelphia County.
            A Gagnon I[Footnote 3] hearing was scheduled on
            September 29, 2015. At the time of the hearing, the
            matter was continued for two weeks to allow counsel
            to negotiate a possible agreement. On October 15,
            2015, [appellant] was sentenced to time[-]served to
            five years for this probation violation. [Appellant]
            received credit from April 22, 2015 through
            October 15, 2015.     No action was taken on the
            backtime remaining on his original parole.

                  [Footnote 3] Gagnon v. Scarpelli, 411
                  U.S. 778 [] (1973).


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                   On February 29, 2016, [appellant] filed a
             pro se motion styled as a “Motion to Amend Jail
             Credits.” By Order of March 8, 2016, th[e trial c]ourt
             denied the Motion as no action was taken on
             [appellant’s] parole. On March 23, 2016, [appellant]
             wrote a letter to the [trial c]ourt requesting
             additional credits. On June 18, 2016, [appellant]
             again filed a “Motion to Amend Jail Credits.”

Trial court opinion, 10/18/16 at 1-2 (footnotes in original).

        As noted, on June 28, 2016, the trial court entered an order denying

appellant’s pro se “motion to amend jail credits.” Appellant filed a pro se

notice of appeal from this order that was docketed on July 29, 2016.        On

August 1, 2016, the trial court entered an order directing appellant to file a

concise statement of errors complained of on appeal, in accordance with

Pa.R.A.P. 1925(b). Appellant filed his Rule 1925(b) statement on August 9,

2016, and the trial court filed its Rule 1925(a) opinion on October 18, 2016.

        On appeal, appellant contends that his October 15, 2015 probation

revocation sentence was illegal because the trial court failed to award him

proper credit for time-served.    (Appellant’s brief at 3; see also Motion to

Amend Jail Credits, 2/29/16 at ¶¶ 5-8.) Specifically, appellant contends that

he is entitled to receive credit for the 3 days he spent incarcerated following

his initial arrest on March 12, 2013 through March 14, 2013, and for the

281 days that he spent incarcerated following his second arrest on June 14,

2013 through March 21, 2014, the date he was paroled. (Appellant’s brief at

5-6.)



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      At first blush, while it does appear that the substantive argument set

forth in appellant’s pro se petition is meritless,2 we are unable to conclude

from the record that appellant is foreclosed from any remedy under the

PCRA. Rather, controlling case law dictates that appellant must be afforded

the assistance of counsel to pursue his first request for PCRA relief.

      We explained in Commonwealth v. Kutynak, 781 A.2d 1259

(Pa.Super. 2001), an appellant is entitled to representation of counsel on a

first PCRA petition, “despite any apparent untimeliness of the petition or the

apparent non-cognizability of the claims presented.” Id. at 1262; see also

Pa.R.Crim.P. 904.   In other words, appellant “is entitled to counsel for his

first PCRA petition, regardless of the merits of his claim.” Commonwealth

v. Wiley, 966 A.2d 1153, 1159 (Pa.Super. 2009) (citation omitted); see

also Commonwealth v. Smith, 818 A.2d 494, 501 (Pa. 2003) (holding



2
  In Commonwealth v. Bowser, 783 A.2d 348 (Pa.Super. 2001), appeal
denied, 798 A.2d 1286 (Pa. 2002), a panel of this court held that a
defendant whose probation was revoked because of another criminal
conviction was not entitled to have time that he previously spent in jail,
which had already been credited to the incarceration portion of his original
sentence, to be credited to his probation revocation sentence. Bowser, 783
A.2d at 350. The Bowser court recognized that a defendant is only entitled
to receive credit for time that he previously spent incarcerated when the
maximum term of the revocation sentence and the time-served on the
original sentence exceeds the statutory maximum penalty for the crime
charged.     Id.; see also trial court opinion, 10/18/16 at 3.             In
Commonwealth v. Yakell, 876 A.2d 1040 (Pa.Super. 2005), this court
reaffirmed the holding in Bowser that the PCRA court “was within its right
not to grant any credit for the time served on the original sentence” because
the aggregate sentence was less than the statutory maximum. Yakell, 876
A.2d at 1043.


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that, “an indigent first-time PCRA petitioner is entitled to the assistance of

counsel, whether or not the PCRA court ultimately concludes that the PCRA

petition is untimely.”). “While this entitlement [to appointed counsel] may

be waived, petitioner may do so only after addressing his entitlement to

appointed counsel with the PCRA court.”     Commonwealth v. Evans, 866

A.2d 442, 446 (Pa.Super. 2005) (citations omitted).

      Here, the record establishes that appellant was not afforded the

assistance of counsel in pursuing what amounts to his first PCRA petition,

contrary to the law of this Commonwealth. Accordingly, we vacate the trial

court’s June 28, 2016 order and remand for the appointment of counsel and

further proceedings under the PCRA consistent with this memorandum.

      Order vacated. Case remanded for further proceedings.       Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/7/2017




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