J-S73012-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

GEORGE D. NEWCOMER, JR.,

                          Appellant                  No. 894 MDA 2014


                 Appeal from the Order Entered April 18, 2014
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0003564-2006


BEFORE: BOWES, WECHT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                       FILED DECEMBER 04, 2014

      George D. Newcomer, Jr., appeals pro se from the order entered

April 18, 2014, denying his untimely-filed motion for post-sentence relief,

which the trial court failed to treat as a PCRA petition. Since the motion was

Appellant’s first post-conviction relief filing, he was entitled to counsel.

Accordingly, we are constrained to reverse and remand for the appointment

of counsel.

      Appellant was charged with attempted murder, attempted sexual

assault, aggravated assault, unlawful restraint causing serious bodily injury,

and indecent assault on June 10, 2006. After Appellant was evaluated by

Mayview State Hospital relative to competency, he entered a negotiated

guilty plea on July 25, 2007, to aggravated assault and unlawful restraint.

The Commonwealth withdrew the remaining charges. The court sentenced
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Appellant to seven and one-half to twenty years incarceration for the

aggravated assault charge and a concurrent term of imprisonment of one to

two years for the unlawful restraint count.     Appellant did not file a direct

appeal.

      On March 26, 2014, almost seven years after his guilty plea, Appellant

filed what he entitled a motion for modification of sentence nunc pro tunc.

Therein, Appellant alleged that his sentence was illegal because it was cruel

and   unusual   punishment    under   the    Eighth     Amendment    as   grossly

disproportionate.   In addition, Appellant averred that the sentence was

unduly harsh and excessive.     He also baldly asserted that his federal and

state constitutional procedural rights were violated.

      The court did not construe the filing as a PCRA petition. Accordingly, it

did not appoint counsel. Further, since the court did not consider the motion

as a PCRA petition, it did not notify Appellant that his petition was defective

since he did not allege a timeliness exception, nor did the court provide

notice of intent to dismiss. Rather, the court simply dismissed the motion on

April 18, 2014. This timely appeal ensued.

      The court directed Appellant to file and serve a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.         Appellant complied,

and asserted that the court erred in denying the motion and failing to

provide him with notice of intent to dismiss.         The court authored a Rule

1925(a) opinion, concluding that Appellant’s motion was untimely under

Pa.R.Crim.P. 720 and his claims were not cognizable under the PCRA.

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Accordingly, it reasoned that it did not err in failing to treat the motion as a

PCRA petition. Appellant now raises two issues for our review.

       Did the trial court abuse its discretion where it unreasonably
       denied [Appellant’s] motion for modification of sentence nunc
       pro tunc?

       Did the trial court denied [sic] due process denying the motion
       for modification of sentence nunc pro tunc without issuing notice
       of intentions to dismiss and failing to give parties [an]
       opportunity to respond and defend?

Appellant’s brief at 4.

       Preliminarily, we must determine if the trial court properly declined to

treat Appellant’s motion as a PCRA petition. The Commonwealth argues that

Commonwealth v. Wrecks, 934 A.2d 1287 (Pa.Super. 2007), controls.

Specifically, it maintains that Appellant’s motion only raised a bald

discretionary aspects of sentence claim, which the Wrecks Court found to

be a non-cognizable claim.1         The Wrecks decision, however, is in conflict

with a host of other decisions by this Court and was most recently critiqued

in Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super. 2013).                   More

importantly, it is distinguishable.



____________________________________________


1
   A bald discretionary aspects of sentencing claim can be corrected to allow
for review if alleged as an ineffective assistance of counsel claim and the
petition is timely.    See Commonwealth v. Scassera, 965 A.2d 247
(Pa.Super. 2009) (affording relief on ineffective assistance of counsel claim
related to discretionary aspects of sentencing).



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      In Taylor, the Commonwealth argued that the defendant’s filing of a

writ of habeas corpus challenging his sentence as illegal was an untimely

PCRA petition.   Therein, the trial court declined to treat the petition as a

PCRA petition and elected to construe the habeas motion as an untimely

post-sentence motion under Pa.R.Crim.P. 720.          We agreed with the

Commonwealth that the petition should have been analyzed as a PCRA

petition. Since the petition, however, was not the defendant’s first, he was

not entitled to counsel.

      In determining that the habeas corpus petition fell within the

parameters of the PCRA, we relied on Commonwealth v. Fowler, 930 A.2d

586 (Pa.Super. 2007), Commonwealth v. Johnson, 803 A.2d 1291, 1293

(Pa.Super. 2002), Commonwealth v. Evans, 866 A.2d 442 (Pa.Super.

2005), Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.Super. 2004);

Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa.Super. 2000), and

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

we noted that the Jackson Court opined, “any petition filed after the

judgment of sentence becomes final will be treated as a PCRA petition.”

Taylor, supra at 466 (quoting Jackson, supra at 521).

      In Fowler, Evans, and Guthrie, the claims set forth in otherwise

untimely post-sentence motions related to the discretionary aspects of a

sentence despite the litigants’ attempts to cast them as illegal sentencing

claims. For example, in Fowler, the petitioner maintained that the court’s


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failure to place its reasons for its sentence on the record rendered the

sentence illegal.   See Fowler, supra at 593 (citing Commonwealth v.

McAfee, 849 A.2d 270 (Pa.Super. 2004), and noting that the claim was a

discretionary sentencing issue).     Moreover, in Taylor, we opined that

Wrecks

      disregarded that in Commonwealth v. Evans, 866 A.2d 442
      (Pa.Super. 2005), and Commonwealth v. Guthrie, 749 A.2d
      502 (Pa.Super. 2000), this Court indicated that the defendant's
      claims, though couched as illegal sentencing issues, raised bald
      discretionary sentencing challenges. In Evans, the Court set
      forth the issue raised by the defendant as “Whether the trial
      court erred in departing from the sentencing procedure
      mandated in Pa. Rules of Criminal Procedure 704(C)(2) by not
      stating, on the record, the reason(s) for its decision underlying
      the sentence imposed.” Evans, supra at 442–443. This issue
      pertains to the discretionary aspects of sentencing. Similarly, in
      Guthrie, the Court stated, “Although Appellant couches his
      argument in terms of legality of sentence, it appears he is raising
      issues concerning the discretionary aspects of sentence.”
      Guthrie, supra at 504. Both the Evans and Guthrie Courts,
      nonetheless, treated the post-sentence motions as PCRA
      petitions.

Taylor, supra at 467.     The Taylor Court further recognized that, in both

Evans and Guthrie, the petitioners “were proceeding on what would have

been their first-time PCRA proceedings, entitling them to counsel if the

motion were treated as a PCRA petition.” Id. Hence, in Evans, where the

defendant filed a “motion styled Permission to File Nunc Pro Tunc Motion for

Reconsideration or Modification of Sentence[,]” we remanded for the

appointment of counsel under the PCRA. Evans, supra at 442. The Evans

Court recognized that the Pennsylvania Supreme Court in Commonwealth


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v. Smith, 818 A.2d 494 (Pa. 2003), held that counsel must be appointed for

a first-time PCRA petition even if it appears facially untimely.

      In addition, the Evans Court relied on Commonwealth v. Kutnyak,

781 A.2d 1259 (Pa.Super. 2001), wherein a panel of this Court held that a

post-sentence motion, filed after the expiration of the period for filing a

direct appeal, fell under the ambit of the PCRA “regardless of the manner in

which the petition is titled.” Id. at 1261. The petitioner in Kutnyak, almost

five years after he entered a guilty plea, filed a motion entitled, “Notice of

Post-Sentence    Motion   Challenging   Validity   of   Guilty   Plea   to   Permit

Withdrawal, Nunc Pro Tunc[.]” Id. We held that the petitioner was “entitled

to counsel to represent him despite any apparent untimeliness of the

petition or the apparent non-cognizability of the claims presented.” Id.

at 1262 (emphasis added).

      While the Commonwealth in this case appears to make the distinction

that no illegal sentencing claim was at issue, Appellant did set forth that his

sentence was cruel and unusual punishment under the Eighth Amendment.

Both this Court and our Supreme Court have construed certain Eighth

Amendment challenges as illegal sentencing claims.          Commonwealth v.

Robinson, 82 A.3d 998, 1020 (Pa. 2013); Commonwealth v. Brown, 71

A.3d 1009, 1015-1016 (Pa.Super. 2013); Commonwealth v. Henkel, 938

A.2d 433, 446 n.14 (Pa.Super. 2007). Hence, in this matter, we do not find

that Wrecks is controlling since Appellant was raising a constitutional


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challenge to his sentence that could potentially be considered a cognizable

illegal sentencing challenge. See e.g. 42 Pa.C.S. § 9543(a)(2)(i) & (vii).

       Finally, as in Kutnyak, we recognize that Appellant has challenged the

court’s failure to issue a notice of intent to dismiss since it did not consider

the motion as a PCRA petition. The Kutnyak Court, and more recently this

Court in Taylor, has acknowledged that this failure is not automatically

reversible error where a petition is untimely. Nonetheless, in Kutnyak we

directed that upon remand the court comply with the applicable rule if it

determined that the defendant’s petition was untimely. Consistent with that

decision, we remind the court to comply with the applicable PCRA rules of

procedure.

       In sum, we direct that the court appoint PCRA counsel to determine if

Appellant can aver an exception to the PCRA time limits and examine if there

are other issues that may be of merit if Appellant’s petition is timely.       Of

course, PCRA counsel may elect to file a no-merit letter pursuant to

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

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).2

       Order reversed.         Case remanded with instructions.       Jurisdiction

relinquished.


____________________________________________


2
  This Court may sua sponte direct the appointment of counsel.                See
Commonwealth v. Stossel, 17 A.3d 1286 (Pa.Super. 2011).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/2014




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