J-S60020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
            v.                         :
                                       :
                                       :
SHANE CODY HACKWORTH                   :
                                       :
                  Appellant            :   No. 133 WDA 2017

                 Appeal from the Order December 13, 2016
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0003068-2007

COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
            v.                         :
                                       :
                                       :
SHANE C. HACKWORTH                     :
                                       :
                  Appellant            :   No. 403 WDA 2017

                   Appeal from the Order January 3, 2017
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                         CP-25-CR-0001442-2008


BEFORE:   OLSON, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY DUBOW, J.:                        FILED OCTOBER 13, 2017

     Appellant, Shane Cody Hackworth, appeals from the December 13,

2016 and January 3, 2017 Orders denying his pro se Motions for

Reconsideration of Sentence following the July 23, 2009 imposition of a

Judgment of Sentence of an aggregate term of 19 to 96 months’




____________________________________
* Former Justice specially assigned to the Superior Court.
J-S60020-17



incarceration.1 After careful review, we conclude that the trial court should

have considered Appellant’s pro se Motions for Reconsideration of Sentence

Nunc Pro Tunc as Petitions for Post-Conviction Relief under the Post

Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546; and, thus, should have

appointed counsel. We, therefore vacate, and remand with instructions.

       On July 24, 2008, Appellant entered a guilty plea to charges at two

separate criminal dockets2 of two counts of Possession with Intent to Deliver

LSD and Criminal Conspiracy, and one count each of Possession of

Marijuana, Possession with Intent to Deliver Marijuana, and Possession of

Drug Paraphernalia.3         The court sentenced Appellant that day to an

aggregate term of 16 years of probation.

       On July 9, 2009, Appellant entered a guilty plea to two additional drug

charges, resulting in the violation of the terms of his probation. Thus, on
____________________________________________


1
  Appellant’s counsel filed a Petition to Withdraw as Counsel and a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
2
  It appears that the trial court consolidated these cases for purposes of
entry of the guilty plea, sentencing, and, later, sentencing following
revocation of probation.
3
  Specifically, the Commonwealth charged Appellant at Docket No. 3068 of
2007 with two counts of Possession with Intent to Deliver LSD, and Criminal
Conspiracy. See 35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 903. The
Commonwealth charged Appellant at Docket No. 1442 of 2008 with
Possession of Marijuana, Possession with Intent to Deliver Marijuana, and
Possession of Drug Paraphernalia. See 35 P.S. §§ 780-113(a)(16), (30),
and (32).




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J-S60020-17



July 23, 2009, the court sentenced Appellant to an aggregate term of 19 to

96 months’ incarceration, followed by 12 months’ probation.

        Appellant did not file a Post-Sentence Motion following the imposition

of his revocation sentence and did not file a timely direct appeal. Rather, on

December 8, 2006, Appellant filed a pro se Motion for Reconsideration Nunc

Pro Tunc at Docket Number 3086 of 2007.              On December 22, 2016,

Appellant filed a pro se Motion for Reconsideration of Sentence Nunc Pro

Tunc at Docket Number 1442 of 2008.               In both Motions, Appellant

challenged the effectiveness of his trial counsel, and averred that the trial

court erred in not merging his charges.

        On December 13, 2016, and January 3, 2017, the trial court entered

Orders denying Appellant’s Motions for Reconsideration as untimely without

conducting a hearing on the Motions, appointing counsel, or conducting a

hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

        Appellant timely appealed pro se from these Orders.4

        On March 17, 2017, and March 23, 2017, Appellant filed Motions for

Appointment of Counsel, following which this Court remanded this case for

the trial court to determine “whether Appellant is entitled to the appointment

of counsel.”     Order, 3/24/17, Docket Nos. 403 WDA 2017 and 133 WDA

2017.


____________________________________________


4
    Appellant and the trial court have complied with Pa.R.A.P. 1925.



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J-S60020-17



      On March 27, 2017, the trial court appointed counsel and gave counsel

60 days to file an amended Petition “pursuant to the PCRA.” Trial Ct. Order,

3/27/17. The next day, however, the court inexplicably struck that portion

of the Order referring to the PCRA. Trial Ct. Order, 3/28/17.

      We begin by noting that the lower court failed to classify Appellant’s

Motions as PCRA Petitions.       Appellant’s pro se Motions, challenging his

counsel’s effectiveness and the trial court’s failure to merge his charges for

sentencing, raised claims cognizable under the PCRA. See Commonwealth

v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (holding that claims of ineffective

assistance of counsel should generally be raised on collateral review);

Commonwealth v. Kitchen, 814 A.2d 209, 214 (Pa. Super. 2002) (noting

that a claim that the court should have merged charges for sentencing is a

challenge to the legality of sentence); Commonwealth v. Hockenberry,

689 A.2d 283, 288 (Pa. Super. 1997) (finding that an untimely motion to

modify sentence that challenges the legality of a sentence should be treated

as a PCRA Petition); Commonwealth v. Kutnyak, 781 A.2d 1259, 1261

(Pa. Super. 2001) (holding that, regardless of what a defendant titles his

petition, “the PCRA is the exclusive vehicle for obtaining post-conviction

collateral relief.”).   Accordingly, the lower court should have treated the

Motions as PCRA Petitions.

      Given the trial court’s failure to consider Appellant’s Motions under the

PCRA, we vacate the Orders denying relief and remand with instructions to

permit counsel to file an amended PCRA Petition or a petition to withdraw as

                                      -4-
J-S60020-17



counsel and an accompanying “no merit” letter pursuant to Commonwealth

v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc), and their progeny.          See Pa.R.Crim.P.

904(E).

     Orders vacated.      Case remanded.     Counsel’s Petition to Withdraw as

Counsel denied. Jurisdiction relinquished.

President Judge Emeritus Stevens joins the memorandum.

Judge Olson concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2017




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