J-S03036-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                    v.                   :
                                         :
CORIE REX HILLIARD,                      :
                                         :
                 Appellant               :     1052 WDA 2016

                 Appeal from the PCRA Order June 16, 2016
             in the Court of Common Pleas of Somerset County
            Criminal Division at No(s): CP-56-CR-0000361-2011

BEFORE:    OLSON, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED MARCH 20, 2017

     Corie Rex Hilliard (Appellant) pro se appeals from the order entered

June 15, 2016, denying his petition for writ of habeas corpus, which the

court treated as a motion filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we vacate the order and

remand for proceedings consistent with this memorandum.

     On January 9, 2011, Appellant went to the Pennsylvania State Police

Somerset Station to report that he had been sexually molesting his five-

year-old daughter for the past year. Based on this confession and additional

evidence gathered by police, Appellant was charged with, inter alia,

involuntary deviate sexual intercourse (IDSI) with a child, as a violation of

18 Pa.C.S. § 3123(a)(6). On December 12, 2011, at his guilty plea hearing,

the Commonwealth moved to amend the criminal information.                The


*Retired Senior Judge assigned to the Superior Court.
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Commonwealth substituted subsection 3123(b) for subsection 3123(a)(6).

“Section 3123(a)(6), which provided a person commits a felony of the first

degree when he or she engages in deviate sexual intercourse with a

complainant who is less than 13 years of age, was … deleted [in 2002].”

Commonwealth v. Snyder, 870 A.2d 336, 340 (Pa. Super. 2005).                   The

statute was replaced and included section 3123(b) as the identical provision,

providing that “[a] person commits [IDSI] with a child, a felony of the first

degree, when the person engages in deviate sexual intercourse with a

complainant who is less than 13 years of age.” 18 Pa.C.S. § 3123(b).

      Pursuant to an agreement with the Commonwealth, Appellant pled

guilty to six counts of IDSI under 18 Pa.C.S. § 3123(b), in exchange for the

Commonwealth’s          agreement    to   withdraw   all   other   charges.   N.T.,

12/11/2011, at 9.         On April 11, 2012, Appellant was sentenced to an

aggregate term of 20 to 40 years of incarceration. Appellant timely filed a

post-sentence motion, which was denied on May 22, 2012. Appellant did not

file a direct appeal.

      On March 17, 2016, Appellant filed a petition for writ of habeas corpus.

According to Appellant, because he was originally charged with violating

section 3123(a)(6), a portion of a repealed statute, he contends his

conviction is void ab initio.       In addition, he argues that the relief he is

requesting is not cognizable under the PCRA.




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         On March 21, 2016, the PCRA court issued a notice of intent to

dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907.

In that order, the PCRA court treated the petition for writ of habeas corpus

as a PCRA petition and found that it was untimely filed.      In addition, the

PCRA court pointed out that Appellant pled guilty to section 3123(b), not

section 3123(a)(6); thus his claim is frivolous. Appellant filed a response

arguing once again that he was never charged with section 3123(b).          On

June 16, 2016, the PCRA court dismissed Appellant’s petition. This timely-

filed appeal followed. Both Appellant and the court complied with Pa.R.A.P.

1925.

        Before we address the issues raised by Appellant, we must first

address whether Appellant is properly proceeding pro se in this Court.1 In

doing so, we are mindful of the following.

        It is well-settled that the PCRA is intended to be the sole means of

achieving post-conviction relief. Commonwealth v. Taylor, 65 A.3d 462,

465 (Pa. Super. 2013). “[T]he PCRA subsumes all forms of collateral relief,

including habeas corpus, to the extent a remedy is available under such

enactment.” Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007).

Rule 904 of the Rules of Criminal Procedure requires the appointment of

1
  Although Appellant has not specifically raised an issue regarding his lack of
PCRA counsel, we observe that we may do so sua sponte. See
Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011)
(discussing the right of Superior Court to address the appellant’s lack of
counsel sua sponte in PCRA matter).


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counsel for an indigent petitioner on his or her first PCRA petition. 2

Pa.R.Crim.P. 904(C). “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).

        Because this was Appellant’s first filing, he was entitled to the

appointment of counsel. Therefore, we vacate the order denying the PCRA

petition and remand to the PCRA court for the appointment of counsel. If

Appellant wishes to proceed pro se, a Grazier3 hearing is required.

        Order vacated. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.




2
  This requirement is irrespective of whether Appellant requested counsel to
be appointed. See Commonwealth v. Auchmuty, 799 A.2d 823, 826 (Pa.
Super. 2002) (“[This Court] opined that clearly Rule [] 904 does not require
petitioners to affirmatively request appointment of counsel and concluded it
also was necessary to remand for appointment of counsel.”).
3
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 3/20/2017




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