J-S21012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                           Appellee

                    v.

JUSTEN SMITH

                           Appellant                 No. 2368 EDA 2018


                Appeal from the Order entered July 13, 2018
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at Nos: CP-51-CR-0013326-2014,
                          CP-51-CR-0013328-2014


BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                             FILED MAY 09, 2019

      Appellant, Justen Smith, appeals from the July 13, 2018 order entered

in the Court of Common Pleas of Philadelphia County, denying his motion for

reconsideration of sentence. Upon review, we vacate the order and remand

for further proceedings.

      Briefly, on May 2, 2016, Appellant entered a guilty plea to two counts of

third-degree murder and other charges, all stemming from the murders of an

elderly couple committed by Appellant and his co-defendant while they were

at the couple’s home to do yardwork.       On the same day, the trial court

imposed a negotiated aggregate sentence of 38 to 76 years in prison.

Appellant did not file post-sentence motions or an appeal to this Court.
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      More than two years later, on June 11, 2018, Appellant filed a pro se

petition for modification of his sentence. On June 19, 2018, the trial court

denied Appellant’s petition, noting it was untimely even if considered a petition

for collateral relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-46.

      On July 12, 2018, Appellant filed a pro se motion for reconsideration of

sentence, claiming his sentence was illegal.     By order entered on July 13,

2018, the trial court denied the motion, indicating it was also untimely, even

if considered a PCRA petition. This timely appeal followed.

      In an October 1, 2018 opinion, the trial court explained that Appellant’s

motion was patently untimely. However, citing Commonwealth v. Evans,

866 A.2d 442, 443-44 (Pa. Super. 2005), the court acknowledged that

Appellant’s motion challenging the legality of a sentence should have been

treated as a PCRA petition.     Opinion, 10/1/18, at 3.      Further, the court

recognized that a defendant filing a PCRA petition is entitled to assistance of

counsel for a first PCRA petition. Id. (citing Pa.R.Crim.P. 904(C)). Therefore,

the court requested that we vacate the court’s July 13, 2018 order and remand

for proceedings under the PCRA. Id.

      The court noted that Appellant is eligible for court-appointed counsel

and that it had appointed James F. Berardinelli, Esquire, to represent




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Appellant.1 Attorney Berardinelli filed a brief on behalf of Appellant with this

Court, contending that Appellant’s motion for reconsideration should have

been treated as a first PCRA petition for which counsel should have been

appointed, and requesting that we remand for PCRA proceedings. Appellant’s

Brief at 7-8.    The Commonwealth also filed a brief, indicating it “does not

oppose a remand, wherein [Appellant] may be represented by counsel.

Commonwealth Brief at 4.

       As the comment to Rule 904 reflects, “[c]onsistent with Pennsylvania

post-conviction practice, it is intended that counsel be appointed in every case

in which a defendant has filed a petition for post-conviction collateral relief for

the first time and is unable to afford counsel or otherwise procure counsel.”

Pa.R.Crim.P. 904 (comment). Therefore, we vacate the July 13, 2018 order




____________________________________________


1 By way of background, Appellant was represented at his guilty plea hearing
and at sentencing by Gerald A. Stein, Esquire. Trial Court Opinion, 10/1/18,
at 1. As the trial court explained, on February 14, 2018, and again on June
11, 2018, Appellant filed motions to discharge Attorney Stein, claiming
abandonment. On June 20, 2018, the trial court denied the June 2018 motion
as moot, because the time for direct appeal had expired and no other matter
was pending before the court. After Appellant filed his pro se notice of appeal
with this Court, Attorney Stein moved to withdraw. We granted the motion
and directed the trial court to determine whether Appellant was eligible for
court-appointed counsel. The trial court determined Appellant was eligible
and, ultimately, appointed Attorney Berardinelli to represent Appellant. See
id. at 2-3.




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dismissing Appellant’s motion for reconsideration and we remand for further

proceedings consistent with this Memorandum.2

       Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/19




____________________________________________


2 In the event Attorney Berardinelli is unable or unwilling to represent
Appellant in proceedings related to Appellant’s first PCRA petition, the PCRA
court shall appoint new counsel in accordance with Pa.R.Crim.P. 904(C).


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