J-S25045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GREGORY SHEL DEUTSCH, JR. ,                :
                                               :
                       Appellant               :      No. 1657 MDA 2018

              Appeal from the Order Entered September 25, 2018
               in the Court of Common Pleas of Schuylkill County
              Criminal Division at No(s): CP-54-CR-0001126-2016

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED JULY 05, 2019

        Gregory Shel Deutsch, Jr. (“Deutsch”), appeals from the Order denying

and dismissing his first Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 See 42 Pa.C.S.A. §§ 9541-9546. We vacate and remand.

        On March 8, 2017, Deutsch entered a negotiated guilty plea to two

counts of endangering the welfare of children, and one count of driving under

the influence of a controlled substance.2          See 18 Pa.C.S.A. § 4304; 75

Pa.C.S.A. § 3802(d)(1)(i). The trial court sentenced Deutsch, pursuant to the

plea agreement, to an aggregate term of 2 to 4 years in prison. Relevantly,

the Sentencing Order indicated that Deutsch’s sentence would be effective on

the date of sentencing. Deutsch did not file post-sentence motions.
____________________________________________


1 Deutsch titled his pro se filing a “Motion to Enforce Plea Agreement
Modification of Sentence Nunc Pro Tunc.” However, as we will discuss, infra,
Deutch’s Motion is actually a PCRA Petition.

2   Deutsch was on state parole at the time he committed these offenses.
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        On July 23, 2018, Deutsch, pro se, filed the instant Petition. Deutsch

argued that his parole agent informed him that he would be required to

complete the backtime on his original state sentence before he could begin

serving the sentence imposed in the instant case, pursuant to 61 Pa.C.S.A.

§ 6138.3      The PCRA court subsequently entered an Order directing the

Commonwealth to file a response, but the Commonwealth failed to comply.

On September 25, 2018, the PCRA court entered an Order denying and

dismissing Deutsch’s Petition, without first appointing Deutsch counsel or

providing notice of its intention to dismiss the Petition without a hearing, see

Pa.R.Crim.P. 907.

        Deutsch filed a timely pro se Notice of Appeal. On October 11, 2018,

the PCRA court ordered Deutsch to file a Pa.R.A.P. 1925(b) concise statement

____________________________________________


33   Section 6138 provides, in relevant part, as follows:

      (a) Convicted violators. --

                                          ***

        (5) If a new sentence is imposed on the parolee, the service of
        the new balance of the term originally imposed by a Pennsylvania
        court shall precede the commencement of the new term imposed
        …

           (i) If a person is paroled from a State correctional institution
           and the new sentence imposed on the person is to be served
           in the State correctional institution.

61 Pa.C.S.A. § 6138(a)(5)(i).




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of matters complained of on appeal within 21 days. This Court entered an

Order on November 28, 2018, directing the PCRA court to determine Deutsch’s

eligibility for court-appointed counsel.            The PCRA court subsequently

appointed Deutsch counsel.          Deutsch filed a pro se Concise Statement on

November 29, 2018, the day after the PCRA court entered its Order appointing

counsel.4

       Initially, we observe that the PCRA court treated Deutsch’s pro se filing

as a direct appeal. See Trial Court Opinion, 1/8/19, at 1 (wherein the court

stated that Deutsch filed an appeal from its March 8, 2017 Sentencing Order,

and addressed Deutsch’s ineffectiveness claim by stating that such a claim

may not be raised until collateral review). However, Deutsch’s pro se “Motion

to Enforce Plea Agreement Modification of Sentence Nunc Pro Tunc,” which

essentially challenges his guilty plea as not knowing, intelligent, or voluntary,

must    be   considered     a   Petition   filed   pursuant   to   the   PCRA.   See

Commonwealth v. Jackson, 30 A.3d 516, 518 (Pa. Super. 2011) (stating

that “[w]hen an action is cognizable under the PCRA, the PCRA is the sole

means of obtaining collateral relief….”) (citation and quotation marks

____________________________________________


4 Deutsch’s court-ordered Concise Statement is facially untimely. In his
Concise Statement, Deutsch asserts that he did not receive the Rule 1925(b)
Order until November 19, 2018, attaching thereto a copy of an envelope from
the Clerk of Courts postmarked on that date. Though the docket indicates
that Notice of the court’s Order was sent to Deutsch on October 12, 2018,
because the PCRA court considered the issues raised in Deutsch’s Concise
Statement, and in light of our disposition, we decline to deem Deutsch’s issues
waived.


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omitted); see also Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.

Super. 2001) (concluding that motion challenging the validity of guilty plea

must be treated as a PCRA petition); Commonwealth v. Kroh, 654 A.2d

1168, 1171 n.1 (Pa. Super. 1995) (concluding that appellant’s petition for

specific performance of plea agreement, raising a claim that his guilty plea

was unlawfully induced, must be treated as a PCRA petition because the

underlying claim was cognizable under the PCRA).

       Because this is Deutsch’s first PCRA Petition, he is entitled to the

appointment of counsel to represent him.         Kutnyak, 781 A.2d at 1262

(concluding that appellant was entitled to counsel for his motion challenging

the validity of his guilty plea, which must be considered a PCRA petition,

“despite any apparent untimeliness of the petition or the apparent non-

cognizability of the claims presented.”). Accordingly, we are constrained to

vacate the Order denying and dismissing Deutsch’s Petition, and remand for

the appointment of counsel and any further proceedings as are appropriate

under the PCRA. See id. at 1263 (remanding for proceedings consistent with

the PCRA where appellant’s motion challenging his guilty plea should have

been considered a PCRA petition).5

       Order vacated.         Remanded for proceedings consistent with this

Memorandum. Jurisdiction relinquished.

____________________________________________


5 Further, we remind the PCRA court of the procedural requirements in issuing
notice prior to the dismissal, without a hearing, of a petition filed pursuant to
the PCRA. See Pa.R.Crim.P. 907; see also Kutnyak, 781 A.2d at 1263.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/05/2019




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