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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

TYREE BOHANNON

                            Appellant              No. 3561 EDA 2014


              Appeal from the Order Entered November 14, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003140-2008,
                           CP-51-CR-0003141-2008


BEFORE: SHOGAN, J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.:                      FILED JANUARY 12, 2016

        Tyree Bohannon appeals from the order of the Court of Common Pleas

of Philadelphia County that denied his pro se motion to correct illegal

sentence.      After careful review, we vacate the order and remand for

appointment of counsel to assist Bohannon in litigating a petition under the

Post Conviction Relief Act (PCRA).1

        On September 22, 2007, Bohannon shot Darren Dieter outside a

restaurant in Philadelphia. One of the bullets severed Dieter’s spinal column

rendering him a quadriplegic. Another bullet passed through Dieter’s chest

and struck his girlfriend in the arm.


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1
    42 Pa.C.S. §§ 9541-9546.
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       On December 8, 2008, Bohannon pled guilty to attempted murder,

aggravated assault and possession of a firearm.               The same day, the

Honorable Gwendolyn Bright sentenced him to an aggregate sentence of

fifteen to thirty years’ incarceration.2         Four years later, Dieter died as a

result of his injuries, and the Commonwealth charged Bohannon with

homicide.     On October 23, 2013, Bohannon pled guilty to third-degree

murder.      The same day, the Honorable Benjamin Lerner sentenced

Bohannon to fifteen to forty years’ incarceration, to run concurrently with

the previous sentence, and without credit for time served.3

       On September 4, 2014, Bohannon filed a motion to correct an illegal

sentence; on September 16, 2014, he filed a motion for credit for time

served; and on October 31, 2014, he filed an additional motion to vacate an

illegal sentence. By order dated November 14, 2014, Judge Bright denied all

motions.

       Bohannon filed a timely notice of appeal, and, in response to an order

from the trial court, he filed a Pa.R.A.P. 1925(b) concise statement of errors

____________________________________________


2
   Bohannon did not file an appeal from his judgment of sentence.
Accordingly, his sentence became final for purposes of the PCRA on January
7, 2009, when the period in which to file a direct appeal had passed.
3
  Bohannon did not file an appeal from his judgment of sentence.
Accordingly, his sentence became final for purposes of the PCRA on
November 27, 2013, when the period in which to file a direct appeal had
passed.




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complained of on appeal.         In the statement he avers, “The (PCRA) Court

erred in dismissing Appellant’s Petition for relief without an evidentiary

hearing.” Rule 1925(b) Statement, 2/12/15, at 1. He further avers that his

sentence violates double jeopardy.             In her Rule 1925(b) opinion, Judge

Bright states:

       Appellant first complains that this Court committed error in
       dismissing his PCRA Petition without an evidentiary hearing.
       This claim is belied by the record and is without merit. The
       Record reflects that Appellant did not file a PCRA Petition and
       that the Court, therefore, did not dismiss a proceeding pursuant
       to the PCRA relating to Appellant.

Trial Court Opinion, 5/6/15, at 3.

       The Commonwealth notes, and we agree, that the trial court should

have treated Bohannon’s motion to vacate his sentence as a PCRA petition.

See Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002)

(concluding that appellant’s motion to vacate sentence qualified as         PCRA

petition); Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super.

2000) (holding motion to correct illegal sentence would be treated as PCRA

petition where appellant did not file post-sentence motions or a direct

appeal).4    Furthermore, “when an unrepresented defendant satisfies the

judge that the defendant is unable to afford counsel . . .         the judge shall
____________________________________________


4
  Bohannon’s first post-sentence petition was filed on September 4, 2014.
Although Bohannon’s challenge to his 2008 sentence would be untimely
under section 9545(b)(1) of the PCRA unless he could allege and prove one
of the exceptions set forth in subsections (i)-(iii), his petition could raise a
timely challenge to his October 27, 2013 judgment of sentence.



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appoint counsel to represent the defendant on the defendant’s first petition

for post-conviction collateral relief.” Pa.R.Crim.P. 904(C). Accordingly, we

vacate the trial court’s order and remand for appointment of counsel.

      Order   vacated.       Case   remanded   for   appointment   of   counsel.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2016




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