J-S75034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    DARNELL JABBAR BARNETTE,                   :
                                               :
                      Appellant                :       No. 727 WDA 2017

                       Appeal from the Order May 2, 2017
               in the Court of Common Pleas of Cambria County,
              Criminal Division at No(s): CP-11-CR-0000825-2014,
                            CP-11-CR-0000918-2014

BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED JANUARY 30, 2018

        Darnell Jabbar Barnette (“Barnette”) appeals, pro se, from the Order

denying his Motion for Modification or Correction of Sentences.       Because

Barnette’s Motion should have been treated as a petition filed pursuant to

the Post Conviction Relief Act (“PCRA”),1 we vacate and remand for further

proceedings.

        On October 29, 2015, at docket number 825-2014, a jury found

Barnette guilty of possession of a controlled substance, resisting arrest, and




____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
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tampering with physical evidence.2             On March 16, 2016, the trial court

sentenced Barnette to an aggregate prison term of 34 to 84 months.

Barnette did not file a direct appeal.

        On March 31, 2016, at docket number 918-2014, Barnette pleaded

guilty to possession with intent to deliver a controlled substance and

resisting arrest.3 On April 15, 2016, the trial court sentenced Barnette to an

aggregate prison term of 27 to 54 months. The trial court further ordered

that the sentence at 918-2014 would run concurrent to the sentence at 825-

2014.4 Barnette did not file a direct appeal.

        On February 25, 2017, Barnette, pro se, filed the Motion for

Modification or Correction of Sentences, at both docket numbers. The trial

court denied the Motion for Modification.          Barnette filed a timely Notice of

Appeal.5


____________________________________________


2
  See 35 P.S. § 780-113(a)(16); 18 Pa.C.S.A. §§ 5104; 4910(1). The trial
judge also found Barnette guilty of the summary offense of disorderly
conduct. See 18 Pa.C.S.A. § 5503(a)(4). Additionally, following the guilty
plea, Barnette elected to proceed pro se.
3
    See 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 5104.
4
  The trial court granted Barnette’s counsel’s Motion to Withdraw in May
2016.
5
  The trial court ordered Barnette to file a Pa.R.A.P. 1925(b) concise
statement.     Barnette, pro se, filed an untimely Concise Statement.
However, because of the procedural posture of this case, we decline to find
waiver on this basis.



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      Based upon this procedural history, the trial court should have treated

the Motion for Modification, Barnette’s request for relief after the judgments

of sentence became final, as a first PCRA petition. See Commonwealth v.

Fowler, 930 A.2d 586, 591 (Pa. Super. 2007) (stating that “when a

defendant seeks relief after his judgment of sentence has become final, that

request, regardless of its form or title, must be treated as a PCRA

petition.”); see also Commonwealth v. Evans, 866 A.2d 442, 442-43 (Pa.

Super. 2005) (stating that a motion for reconsideration or modification of

sentence was required to be examined under the PCRA).               Furthermore,

because the February 2017 request for relief would be Barnette’s first PCRA

petition, the mandatory appointment of counsel is implicated.

      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. Henkel, 90 A.3d 16, 22-23 (Pa. Super. 2014)

(en banc) (applying Rule 904(C) and collecting cases); 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.”).


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       Thus, Barnette, who appears to be an indigent petitioner,6 would be

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 Grazier7 hearing if Barnette wishes to proceed pro se during

the collateral proceedings.

       Order vacated; case remanded for further proceedings in accordance

with this Memorandum; jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2018




____________________________________________


6
  See Commonwealth v. Stossel, 17 A.3d 1286, 1288 n.3 (Pa. Super.
2011) (stating that this Court cannot determine whether a defendant is
indigent and that the PCRA court must address this question in the first
instance).
7
    See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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