J-S71034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

MATTHEW JON DEVOE

                        Appellant                  No. 799 WDA 2015


                Appeal from the PCRA Order April 30, 2015
            In the Court of Common Pleas of Somerset County
           Criminal Division at No(s): CP-56-CR-0000468-2013


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                        FILED NOVEMBER 23, 2015

     Matthew Jon Devoe appeals pro se from the order entered April 30,

2015, in the Court of Common Pleas of Somerset County, dismissing,

without prejudice, his first petition, filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546.      Devoe contends the PCRA

court erred in (1) “denying and dismissing [his] PCRA [petition] where the

petition was not presented on a Department of Corrections form,” and (2)

“dismissing [the] PCRA [petition] without required notice pursuant to

Pa.R.Cr.P. 907.” Devoe’s Brief at 4. Based upon the following, we vacate

the order of the PCRA court and remand for appointment of counsel.
J-S71034-15



        Following the entry of a guilty plea to one count of firearms not to be

carried without a license, and two counts of terroristic threats,1 Devoe was

sentenced on October 16, 2014, to an aggregate term of three to 15 years’

imprisonment.      Post sentence motions were denied on February 4, 2015,

and no appeal was filed.           Thereafter, Devoe filed a pro se PCRA petition,

seeking reinstatement of his direct appeal rights. The pro se petition was

time-stamped April 29, 2015.                The PCRA court dismissed Devoe’s PCRA

petition on April 30, 2015, stating the dismissal was “without prejudice to

refile [Devoe’s] request for relief on forms provided at the [State

Correctional] Institution for the purpose of processing a claim for relief under

the PCRA.” Order, 4/30/2015. This timely appeal followed.

        It is well established that “any petition filed after the judgment of

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

Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013) (quotations

and citations omitted) (emphasis added).                 Further, Pennsylvania Rule of

Criminal Procedure 904(C) provides, in pertinent part, that “when an

unrepresented defendant satisfies the judge that the defendant is unable to

afford or otherwise procure counsel, the judge shall appoint counsel to

represent the defendant on the defendant’s first petition for post-conviction

collateral   relief.”   Pa.R.Crim.P.        904(C)    (emphasis    added);    see   also


____________________________________________


1
    18 Pa.C.S. §§ 6106(a)(2) and 2706(a)(1), respectively.



                                              -2-
J-S71034-15



Commonwealth v. Figueroa, 29 A.3d 1177, 1180 n.6 (Pa. Super. 2011)

(“[I]t is undisputed that first time PCRA petitioners have a rule-based right

to counsel.”).

        Here, Devoe argues that the PCRA court erred in dismissing his pro se

PCRA petition on the basis that he did not use a Department of Corrections

form, and requests this Court to vacate the PCRA court’s order and remand

for appointment of counsel. We find merit in Devoe’s argument.

        Based on the above-cited case law and Rule 904, we conclude Devoe’s

petition requesting leave to file a direct appeal nunc pro tunc should have

been treated as a PCRA petition, and that he should have been afforded his

right to appointed counsel. We note the PCRA court, in its Pa.R.A.P. 1925(a)

opinion, and the Commonwealth, in its brief, have acknowledged that

remand for appointment of counsel is proper in this case. Accordingly, we

vacate the order of the PCRA court and remand for the appointment of

counsel pursuant to Pa.R.Crim.P. 904(C).2

        Order vacated.        Case remanded with instructions.    Jurisdiction

relinquished.




____________________________________________


2
    Based on our disposition, we do not reach Devoe’s remaining argument.



                                           -3-
J-S71034-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2015




                          -4-
