J-S60041-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

GABRIEL LEE PAGAN

                            Appellant              No. 282 MDA 2014
                                                    283 MDA 2014
                                                    284 MDA 2014


               Appeal from the Order Entered January 30, 2014
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0000670-2012


BEFORE: OTT, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED NOVEMBER 10, 2014

        Appellant Gabriel Lee Pagan appeals from the Berks County Court of

Common Pleas’ order denying his pro se motion to modify sentence nunc pro

tunc (“motion to modify”) following his guilty plea and sentencing for

multiple counts of Delivery of a Controlled Substance 1 and Conspiracy to

Commit Possession of a Controlled Substance With Intent to Deliver, 2 and a




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1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S. § 903(c).
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single count of Possession of a Controlled Substance With Intent to Deliver.3

After careful review, we reverse and remand for further proceedings.

        The factual background of the instant matter is not material to our

disposition of the issue.       The trial court aptly summarized the pertinent

procedural history as follows:


              On September 6, 2012, [Appellant] pled guilty to eight (8)
        counts under three (3) different dockets. Under Docket 174-
        2012, [Appellant] pled guilty to two (2) counts of Delivery of a
        Controlled Substance (hereinafter “Delivery”) and one (1) count
        of Conspiracy to Commit Possession with Intent to Deliver a
        Controlled Substance (hereinafter “PWID”). Under Docket 177-
        2012, [Appellant] pled guilty to one (1) count of Delivery and
        one (1) count of Conspiracy to Commit PWID. Under Docket
        670-2012, [Appellant] pled guilty to one (1) additional count of
        Delivery, one (1) additional count of Conspiracy to Commit
        PWID, and one (1) count of PWID. On that same date, in
        accordance with the negotiated agreement, the [Appellant] was
        sentenced to serve no less than five (5) to no more than ten
        (10) years on every count and all sentences were ordered to be
        served concurrently. [Appellant] also received a credit of two
        hundred and forty-six (246) days of time served. [Appellant]
        was represented at his guilty plea and sentencing hearing by
        William Bispels, Esquire.

               On January 23, 2014, [Appellant] filed a pro se MOTION
        TO MODIFY SENTENCE NUNC PRO TUNC. After reviewing the pro
        se filing, the Court entered an order denying [Appellant’s]
        motion on January 30, 2014. [Appellant] [timely] filed his Notice
        of Appeal from the Court’s denial on February 11, 2014. The
        Court ordered the [Appellant] on February 12, 2014, to file
        within twenty-one (21) days a Concise Statement of the Errors
        Complained of on Appeal, pursuant to Pennsylvania Rule of
        Appellate Procedure 1925(b), which [Appellant] filed on March 7,
        2014.
____________________________________________


3
    35 P.S. § 780-113(a)(30).



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Trial Court Pa.R.A.P. 1925(a) Opinion, March 28, 2014 (“1925(a) Opinion”),

pp. 1-2 (internal footnotes omitted).




        Appellant raises a single issue for our review:

              Did the trial court err as well as abuse its discretion
              by summarily and prematurely denying Appellant’s
              Motion to Modify Sentence Nunc Pro Tunc?

Appellant’s Brief at 4 (all capitals removed).

        Before reaching the merits of this claim, we must decide whether the

trial court appropriately considered the motion to modify as an untimely

post-sentence motion. We conclude that the trial court should have treated

this as a motion for relief under the Post-Conviction Relief Act4 (“PCRA”).

        A written post-sentence motion must be filed within ten days after the

imposition of judgment. Pa.R.Crim.P. 720(a)(1). However, this Court has

held that, “[d]espite the ten-day limit for post-sentence motions, there are

occasions when such motions may be treated as petitions under the Post

Conviction Relief Act (PCRA).” Commonwealth v. Wrecks, 931 A.2d 717,

720 (Pa.Super.2007) (“Wrecks I”) (citing Commonwealth v. Guthrie, 749

A.2d 502 (Pa.Super.2000) (holding that an untimely post-sentence motion

may be treated as a PCRA petition once the time periods for filing a post-
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4
    42 Pa.C.S. § 9541 et seq.



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sentence motion and an appeal have expired)); see also Commonwealth

v. Evans, 866 A.2d 442 (Pa.Super.2005) (reaffirming that an untimely pro

se petition for reconsideration of sentence may be considered a PCRA

petition).

       Pennsylvania law is well settled that any collateral petition raising

issues requesting remedies available under the PCRA will be considered a

PCRA    petition.   Commonwealth       v.   Deaner,    779   A.2d   578,   580

(Pa.Super.2001) (citing Commonwealth v. Fahy, 737 A.2d 214, 223-224

(Pa.1999); Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa.1998).

“However, a petition raising a claim for which the PCRA does not offer a

remedy will not be considered a PCRA petition.        Thus, the question then

becomes whether petitioner had an available remedy under the PCRA....”

Deaner, 779 A.2d at 580 (internal citation and quotations omitted).

       “The content of the motion—just exactly what is pled and requested

therein—is relevant to deciding whether to treat the motion as a collateral

petition.” Wrecks I, 931 A.2d at 720 (citing Commonwealth v. Lutz, 788

A.2d 993, 996 n.7 (Pa.Super.2001) (holding that, generally, a filing that

raises issues cognizable under the PCRA will be considered a PCRA petition

while a filing requesting relief outside the PCRA will not be so treated).

Ineffective assistance of counsel claims are cognizable under the PCRA, and

filings or motion raising such claims will be treated as PCRA petitions. 42

Pa.C.S. § 9543(a)(2)(ii); see also Commonwealth v. Lusch, 759 A.2d 6,


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8 (Pa.Super.2000) (multiple accusations of trial counsel ineffectiveness

cognizable under the PCRA).    Likewise, legality of sentence claims present

cognizable PCRA issues that should also make a trial court view a filing that

contains such a claim as a PCRA petition.         See Commonwealth v.

Hockenberry,     689   A.2d   283   (Pa.Super.1997)   (pro   se   motion   for

modification based on legality of sentence question and filed nine months

after imposition of sentence treated as a PCRA petition); see also Guthrie,

749 A.2d at 503 (noting this Court’s approval of the trial court’s

determination that a “motion to correct illegal sentence” must be treated as

a PCRA petition).   However, filings or motions raising only discretionary

aspects of sentencing claims will not be entertained, as such claims are not

cognizable under the PCRA.     See Commonwealth v. Wrecks, 934 A.2d

1287 (Pa.Super.2007) (“Wrecks II”) (treating pro se motion filed ten years

after imposition of sentence and which challenged the discretionary aspects

of sentencing as an untimely post-sentence motion).

     Here, the trial court sentenced Appellant on September 6, 2012. Over

fourteen (14) months later, on January 23, 2014, Appellant filed his motion

to modify.   Obviously, the time during which Appellant could have timely

filed either a post-sentence motion or an appeal had long since expired.

However, the motion to modify included claims questioning the legality of his




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sentence and, arguably, the effective assistance of counsel.5         Such claims

are cognizable under the PCRA.            Accordingly, the trial court should have

treated the motion to modify as a PCRA petition, and not as an untimely

post-sentence motion. See Lusch, Hockenberry, supra.

       Further, review of the trial court docket reveals Appellant has not filed

a previous PCRA petition. Accordingly, Appellant is entitled to a remand and

appointment of counsel to prosecute this, his first PCRA petition.            See

Commonwealth v. Evans, 866 A.2d 442 (Pa.Super.2005) (finding that

remand of a motion for permission to file a nunc pro tunc motion for

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5
   The trial court summarized the claims from the motion to modify as
follows:

       1. [Appellant] argued that the Conspiracy counts should have
          merged with the Delivery counts because the charges
          stemmed from the same criminal acts;

       2. [Appellant] argued that the Commonwealth could not prove
          that he had constructive possession of the cocaine which
          formed the basis of the PWID count under Docket 670-2012;

       3. [Appellant] argued that since all of the charges against him
          stemmed from the same investigation by the same
          investigating police unit that it should have resulted in one
          criminal Information.       [Appellant] asserted that the
          Commonwealth’s decision to file three criminal Informations
          against him was designed to increase his sentence;

       4. [Appellant] argued that the Commonwealth engaged in
          “sentence entrapment” by waiting to arrest him until after he
          had committed multiple drug transactions.

1925(a) Opinion, p. 3.




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reconsideration or modification of sentence to appoint counsel for inmate

was required because the petitioner filed his motion pro se, the motion was

considered to be his first petition for post-conviction relief, and the criminal

rules required that a pro se post-conviction relief petitioner was entitled to

the appointment of counsel).

       Because the trial court should have considered Appellant’s motion to

modify as a first PCRA petition, we reverse the order denying the motion to

modify and remand the matter for further proceedings consistent with this

memorandum.6

       Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2014

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6
   We recognize that, even given the filing date of his motion to modify,
Appellant’s PCRA petition will not have been filed within one year after his
judgment of sentence became final and may therefore be time-barred. 42
Pa.C.S. § 9545. However, we further acknowledge that, since this is his first
PCRA petition, Appellant is entitled to counsel to aid him in determining
which of the PCRA’s time limitations exceptions apply, if any.             See
Commonwealth v. Smith, 818 A.2d 494, 501 (Pa.2003) (“[A]n indigent
first-time PCRA petitioner is entitled to the assistance of counsel, whether or
not the PCRA court ultimately concludes that the PCRA petition is
untimely.”).



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