J-S07012-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

RUSSELL C. TETER

                        Appellant                   No. 1400 MDA 2016


                Appeal from the PCRA Order August 3, 2016
             In the Court of Common Pleas of Schuylkill County
            Criminal Division at No(s): CP-54-CR-0000582-2014


BEFORE: BOWES, LAZARUS, AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                           FILED MARCH 07, 2017

      Russell C. Teter appeals pro se from the August 3, 2016 order denying

him PCRA relief. We vacate the order and remand for the appointment of

counsel.

      On March 6, 2014, Minersville Borough Police Officer Jeffrey R.

Bowers, who had, at the time, been a member of the Schuylkill County

District Attorney’s Drug Task Force for about six years, executed a search

warrant at 42 Westwood Street, Minersville. He was accompanied by three

other Minersville Borough police officers. Appellant was present. The police

officers discovered: 1) packets of methamphetamine; 2) marijuana; 3) a

loaded .9 mm pistol, 4) a loaded .22 caliber pistol, 5) a wallet containing

Appellant’s identification and a pre-recorded one hundred dollar bill that had
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been used in a controlled buy of methamphetamine conducted within forty-

eight hours of execution of the warrant; 6) a cell phone; 7) a baggie with

methamphetamine residue; 8) a marijuana grinder; 9) a mirror with

methamphetamine on top of it; 10) an automatic switchblade; 11) a lock

box containing another .22 caliber gun, another .9 mm handgun, and a

pouch with ammunition and gun magazines; 12) two computers; and 13) a

box with numerous cell phones and cell phone accessories. Since Appellant

had previously pled guilty to a felony drug offense, he was prohibited from

possessing a firearm.

      Appellant was thereafter charged with drug offenses, violations of the

Uniform Firearms Act, and receiving stolen property.      On April 22, 2015,

Appellant entered a negotiated guilty plea, which called for an aggregate

sentence of five to ten years imprisonment and some of the charges filed

herein being nol prossed. The negotiated sentence was imposed at the time

of entry of the guilty plea.

      On April 25, 2016, Appellant filed a pro se motion for habeas corpus

relief claiming that his sentence was illegal as it involved application of an

unconstitutional   mandatory   minimum    sentence.     The   Commonwealth

acknowledged that the motion should be considered a PCRA petition because

legality-of-sentence claims are cognizable under the PCRA. 42 Pa.C.S. §

9542 (PCRA is the only means of “of obtaining collateral relief and

encompasses all other common law remedies . . . including habeas corpus”);

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Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super. 2013) (where habeas

corpus petition raises issue for which PCRA provides a remedy, that petition

must be considered a PCRA petition).         The Commonwealth also conceded

that the petition was timely. It countered that the sentence in question did

not include a mandatory minimum sentence so that PCRA relief should be

denied.   After issuing notice of its intent to dismiss the petition without a

hearing, the court denied relief. Counsel never was appointed.

     Appellant filed the present appeal, was ordered to file a Pa.R.A.P.

1925(b) statement, and complied with that directive. He averred that the

PCRA court erred in failing to appoint him counsel. In its Pa.R.A.P. 1925(a)

opinion, the court justified its failure to appoint counsel “because the

appellant never sought appointment of counsel nor did he represent to the

Court that he was unable to afford or procure counsel.” Opinion, 10/4/16, at

1.

     On appeal, Appellant maintains that the PCRA court erred “in

dismissing   the   PCRA   petition   without   the   appointment   of   counsel.”

Appellant’s (unnumbered brief at page) 3. We agree with that position. In

Commonwealth v. Albrecht, 720 A.2d 693, 699 (Pa. 1998), our Supreme

Court articulated that the rules of criminal procedure make the appointment

of counsel mandatory for purposes of an initial PCRA proceeding. Similarly,

in Commonwealth v. Smith,            818 A.2d 494 (Pa. 2003), our High Court

held that, under the rules of criminal procedure, the appointment of PCRA

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counsel is required for purposes of a first PCRA petition and that counsel

must be afforded even if the PCRA petition is facially untimely.             See

Pa.R.Crim.P. 904(C) (“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.”). The Smith Court stated:

             The policy contained in Rule 904 is consistent with the
      long-standing directive by this Court to provide counsel to
      indigent petitioners filing their first collateral attack on their
      Judgment of Sentence. Commonwealth v. Hoffman, 426 Pa.
      226, 232 A.2d 623 (1967). “In this Commonwealth one who is
      indigent is entitled to the appointment of counsel to assist with
      an initial collateral attack after judgment of sentence.”
      Commonwealth v. Duffey, 551 Pa. 675, 713 A.2d 63, 69-70
      (1998) (quoting Commonwealth v. Albert, 522 Pa. 331, 561
      A.2d 736, 738 (1989)); Albrecht, supra (an unrepresented
      indigent petitioner who filed a first-time PCRA petition is entitled
      to have counsel appointed to represent him during the PCRA
      proceedings). Without legal counsel, an indigent first-time PCRA
      petitioner would not know of the necessity of demonstrating the
      existence of an exception to the time-bar.

Smith, supra at 501.

      Based upon this precept, in Commonwealth v. Guthrie, 749 A.2d

502 (Pa.Super. 2000), we reversed the denial of PCRA relief to an

unrepresented defendant and remanded for the appointment of PCRA

counsel even though the PCRA petitioner had never requested counsel be

appointed by the PCRA Court.       This Court reasoned that, when a pro se

defendant files a petition for post-conviction relief, his ability to obtain the

assistance of counsel should not depend upon whether the defendant is

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astute enough to be aware that he can obtain an appointed lawyer,

especially when the defendant had previously been found indigent.        See

also Commonwealth v. Stossel, 17 A.3d 1286 (Pa.Super. 2011) (where

PCRA petitioner asked to proceed pro se in his PCRA petition, he still had to

be accorded waiver-of-counsel hearing and appointment of counsel if he

elected not to waive counsel at such hearing).        In the present case,

Appellant was represented by the public defender’s office at his plea

proceeding and thus has previously been found to be indigent.      The PCRA

court should have automatically appointed counsel.

      Order vacated.         Case remanded for the appointment of counsel.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/2017




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