J-S66038-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
VICTOR MANUEL MIRET,                       :
                                           :
                   Appellant               :           No. 675 MDA 2014

                 Appeal from the Order entered on April 3, 2014
               in the Court of Common Pleas of Dauphin County,
                 Criminal Division, No. CP-22-CR-0003786-2011

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED NOVEMBER 19, 2014

        Victor Manuel Miret (“Miret”) appeals, pro se, from the Order denying

his Petition for Writ of Error Coram Nobis (hereinafter referred to as “Petition

for Relief”). We vacate the Order and remand for further proceedings.

        On January 11, 2012, Miret pled guilty to retail theft, 1 at docket No.

3786 CR 2011 (hereinafter “3786 CR 2011”), graded as a third-degree

felony.    Miret was indigent and represented by the Office of the Public

Defender.     The trial court sentenced Miret on this conviction on April 25,

2012.     At the same sentencing hearing, Miret pled guilty to and was

sentenced on four separate charges, including two additional counts of retail

theft, listed at docket No. 4836 CR 2011 (hereinafter “4836 CR 2011”).

Miret had numerous prior convictions of retail theft in York and Cumberland



1
    See 18 Pa.C.S.A. § 3929(a)(1).
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Counties, and was serving sentences imposed in both of these counties at

the time of his sentencing on 3786 CR 2011 and 4836 CR 2011.

      At the sentencing hearing on April 25, 2012, the trial court imposed its

sentence on the record (hereinafter referred to as “the Sentencing Order”).

The language of the Sentencing Order is relevant to this appeal, providing as

follows:

      THE COURT: On … 3786 CR 2011[,] on the charge of retail
      theft, we’ll impose a sentence of not less than 15 months nor
      more than 30 months in a state correctional institut[ion]. The
      sentence is effective today[’s] date. [The court also i]mpose[s]
      a fine of $50, the costs of prosecution, [and] direct[s] that
      [Miret] pay restitution in the amount of $599.99 to Sears.

            This sentence is to run consecutive to the sentences you
      are serving in Cumberland County of 7 months to 36 months and
      the York County sentence of 18 months to 36 months. This
      sentence will run consecutively to those sentences.

            On … 4836 CR 2011, we’ll impose the same sentence at
      Count 1 and 2. They’re to run concurrently with each other and
      concurrently to 3786 [CR 2011], [plus a] $25 fine[], [and] the
      costs [of prosecution] in each of those dockets.

           We’ll give [Miret] credit from April 17th [un]till April 25th.
      We direct that [Miret] make restitution in the amount of $3,315
      to Home Depot.

            At Count 3 and 4 [on 4836 CR 2011], we’ll impose no
      further sentence, just the costs of prosecution and fines of $25
      at each of those counts.

           The sentencing scheme is 15 to 30 [months in prison] on
      all these dockets[,] consecutively to the Cumberland
      County/York County sentences.




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Sentencing Order, 4/25/12, at 11-12. We will hereinafter collectively refer

to the concurrent sentences imposed at 3786 CR 2011 and 4836 CR 2011 as

“the Challenged Sentences.” Miret did not file a direct appeal.

      Approximately two years later, Miret filed the Petition for Relief, pro

se, arguing that he was entitled to a clarification and correction of the

Sentencing Order because it was ambiguous, which he believed caused

confusion on the part of the Department of Corrections regarding when the

Challenged Sentences commenced.2 By an Order entered on April 3, 2014,

the trial court denied the Petition for Relief, finding no ambiguity in the

Sentencing Order or any other error. Miret timely filed a pro se Notice of

Appeal. In response, the trial court ordered Miret to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal, after which Miret

timely filed a Concise Statement.

      On appeal, Miret presents the following issue for our review: “Did the

lower court err in not correcting its [] [S]entencing Order, which, due to

ambiguity, has left the Order open to interpretation and enforcement by an

Agency without jurisdiction to modify the [Sentencing] Order?”       Brief for

Appellant at 4 (capitalization omitted).

      Miret argues that there is a conflict in the Sentencing Order, in that

the sentencing judge ordered that the Challenged Sentences shall run

consecutively to the sentences Miret was then serving in York and

2
  As discussed below, Miret’s Petition for Relief alleged, in the alternative,
that the ambiguity resulted in an illegal sentence.


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Cumberland Counties, but, in another part of the Sentencing Order, stated

that the Challenged Sentences were effective as of the date of the

sentencing hearing, April 25, 2012. See id. at 10-11.

        Before reaching the merits of Miret’s claim, we must analyze whether

the trial court followed the proper procedure in denying Miret’s Petition for

Relief.       Although      the    Petition    for    Relief     largely    sought   a

clarification/correction of the allegedly ambiguous Sentencing Order, Miret

also alleged that his sentence is illegal. See Petition for Relief, 4/10/14, at ¶

12 (wherein Miret asserts, inter alia, that “a sentence cannot legally begin

on two [] different dates or times, which is presently the dilemma [Miret]

faces and why the Department of Corrections has modified the effective date

of his sentence.”).      A claim of an illegal sentence is cognizable under the

Post Conviction Relief Act (“PCRA”).3 See Commonwealth v. Jackson, 30

A.3d 516, 521 (Pa. Super. 2011). This Court has “repeatedly held that any

petition filed after the judgment of sentence becomes final will be treated as

a    PCRA   petition.”      Id.   (citation   and    ellipses   omitted);   see   also

Commonwealth v. Turner, 80 A.3d 754, 770 (Pa. 2013) (pointing out that

“[t]he PCRA … subsumes the remedies of habeas corpus and coram nobis.”);

42 Pa.C.S.A. § 9542 (providing that “[t]he action established in this

subchapter shall be the sole means of obtaining collateral relief and

encompasses all other common law and statutory remedies for the same


3
    See 42 Pa.C.S.A. §§ 9541-9546.


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purpose that exist when this subchapter takes effect, including habeas

corpus and coram nobis.”).

      Accordingly, the trial court in the instant case should have treated

Miret’s Petition for Relief as a first petition filed under the PCRA. Moreover,

it is of no moment to the applicability of the PCRA that Miret styled his

Petition for Relief as a “Petition for Writ of Error Coram Nobis.”           See

Jackson, 30 A.3d at 521 (holding that “[the fact t]hat [Appellant] has

attempted to frame his petition as a ‘motion to correct illegal sentence’ does

not change the applicability of the PCRA.”); see also Turner, supra.

      Importantly, the trial court in the instant case failed to appoint Miret,

an indigent petitioner, counsel to assist him in this proceeding involving his

first PCRA Petition.4     Pennsylvania Rule of Criminal Procedure 904(C)

provides, in pertinent 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(C) (emphasis added); see also Commonwealth v. Padden, 783 A.2d

299, 308 (Pa. Super. 2001) (stating that “[i]t is abundantly clear that a first-

time pro se PCRA petitioner is entitled to the benefit of the assistance of

counsel to help identify and properly present potentially meritorious issues

for the trial court’s consideration.”); Commonwealth v. Peterson, 683

4
  We observe that Miret’s PCRA Petition is facially untimely, as he filed it
nearly two years after his judgment of sentence became final.


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A.2d 908, 911 (Pa. Super. 1996) (stating that “[this rule] allows an indigent

defendant the opportunity to secure the appointment of counsel to aid him in

the completion of his first petition seeking post-conviction collateral relief,

regardless of the merits of his claim.” (emphasis added)).

       As an indigent first-time PCRA petitioner, Miret is entitled to the

appointment of counsel to represent him throughout the post-conviction

collateral proceedings, including any appeal from the disposition of his first

PCRA Petition.    See Pa.R.Crim.P. 904(C), (F)(2).     Accordingly, we must

vacate the trial court’s Order and remand for the appointment of PCRA

counsel, or a Grazier5 hearing if Miret wishes to proceed pro se.

       Order vacated; case remanded for the appointment of PCRA counsel

and/or further proceedings in accordance with this Memorandum; Superior

Court jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/19/2014




5
    See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


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