J-S71031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ULYSSES S. DIAZ

                            Appellant               No. 705 WDA 2015


                    Appeal from the PCRA Order April 13, 2015
                   In the Court of Common Pleas of Erie County
               Criminal Division at No(s): CP-25-CR-0000652-2010


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                         FILED NOVEMBER 23, 2015

       Ulysses S. Diaz appeals pro se from the order entered on April 13,

2015, in the Court of Common Pleas of Erie County, that dismissed as

untimely his petition filed pursuant to the Pennsylvania Post-Conviction

Relief Act.1    Diaz contends the petition is timely and raises meritorious

issues. Based upon the following, we vacate and remand for appointment of

counsel.

       On September 16, 2010, Diaz was convicted by a jury of two counts of

attempted robbery, one count each of recklessly endangering another

person, terroristic threats, firearms not to be carried without a license, and



____________________________________________


1
    42 Pa.C.S. §§ 9541–9546.
J-S71031-15



loitering and prowling at nighttime.2 On November 12, 2010, the trial court

sentenced Diaz to an aggregate term of seven to 14 years’ imprisonment.

On appeal, this Court affirmed the judgment of sentence. Commonwealth

v. Diaz, 37 A.3d 1233 [1864 WDA 2010] (Pa. Super. 2011) (unpublished

memorandum).

       On July 16, 2012, and September 21, 2012, Diaz filed pro se PCRA

petitions, which the PCRA court consolidated on September 26, 2012.

Counsel was appointed, and a supplemental PCRA petition was filed on

behalf of Diaz.      On April 24, 2013, following a hearing, the PCRA court

granted Diaz the right to file a petition for allowance of appeal nunc pro tunc

and dismissed all other claims. On May 23, 2013, Diaz filed a petition for

allowance of appeal with the Pennsylvania Supreme Court, which was denied

on September 17, 2013.            Commonwealth v. Diaz, 74 A.3d 1029 (Pa.

2013).

       On January 6, 2015, the present PCRA petition was entered on the

docket.3 On March 3, 2015, the PCRA court issued Pa.R.Crim.P. 907 notice

____________________________________________


2
  18 Pa.C.S. §§ 3701(a)(1)(ii) and 901(a), 2705, 2706(a)(1), 6106(a)(1),
and 5506, respectively.
3
  The petition is time-stamped January 6, 2015. The PCRA court, in its Rule
907 notice, states that the envelope in which the petition was mailed bears a
postmark of January 2, 2015, and under the “prisoner mailbox rule,”
January 2, 2015, is considered the filing date of the petition. See PCRA
Court’s Notice of Intent to Dismiss Pursuant to Pa.R.Crim.P. 907, 3/3/2015,
at 5, citing Commonwealth v. Plummer, 798 A.2d 777, 778 (Pa. Super.
(Footnote Continued Next Page)


                                           -2-
J-S71031-15



of intent to dismiss, explaining the PCRA petition was untimely. Diaz filed

objections to the Rule 907 notice on March 24, 2015. Thereafter, on April

13, 2015, the court dismissed the PCRA petition. This pro se appeal timely

followed.

      As a prefatory matter, we consider whether Diaz was entitled to the

appointment of counsel.

      The Pennsylvania Supreme Court has stated that if a defendant has

been denied the right to file a petition for allowance of appeal, on direct

appeal, the PCRA provides for the reinstatement of that right under

appropriate circumstances. Commonwealth v. Leibel, 825 A.2d 630, 635–

636 (Pa. 2003). “‘It is now well[-]established that a PCRA petition brought

after an appeal nunc pro tunc is considered [an] appellant’s first PCRA

petition[.]’     Thus,       [the    a]ppellant   was   entitled   to   counsel   ….”

Commonwealth v. Figueroa, 29 A.3d 1177, 1180–1181 (Pa. Super.

2011).      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). Even if a PCRA petition appears untimely, a petitioner is

                       _______________________
(Footnote Continued)

2002); Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000).
We note the envelope does not appear in the certified record.



                                            -3-
J-S71031-15



entitled to assistance of counsel on a first PCRA petition in order to

determine whether any of the exceptions to the one-year time limitation

apply. Commonwealth v. Smith, 818 A.2d 494, 500–501 (Pa. 2003).

      Here, the PCRA court considered the present petition as Diaz’s second

petition. However, because the prior petition resulted in the reinstatement

of Diaz’s right to pursue a petition for allowance of appeal, the present

petition is deemed to be Diaz’s first PCRA petition. See Figueroa, supra.

Therefore, we conclude Diaz is entitled to the appointment of counsel even

though the petition appears untimely on its face. See Pa.R.Crim.P. 904(c);

Smith, supra.

      Accordingly, we vacate the PCRA court’s order and remand for the

appointment of counsel pursuant to Rule 904(C).

      Order   vacated.       Case   remanded   for   appointment   of   counsel.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2015




                                       -4-
