J-S20028-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA


                     v.

DANIEL KING WARREN

                          Appellant                    No. 2473 EDA 2016


                      Appeal from the Order July 1, 2016
               In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0004032-2015


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.

DISSENTING MEMORANDUM BY BOWES, J.                 FILED OCTOBER 06, 2017

      I believe that Appellant was improperly denied appointed counsel for

purposes of his first PCRA petition. I would vacate and remand, respectfully

dissenting from the majority’s decision herein.

      Appellant pled guilty in this matter to criminal trespass and was

sentenced on February 14, 2016. On June 16, 2016, Appellant filed a pro se

petition for writ of habeas corpus and a petition to proceed in forma pauperis.

While the precise relief requested is difficult to ascertain, the petition relates

to how credit for time served was awarded since the conviction herein resulted

in revocation of parole or probation imposed in another matter. Relief was

denied without the appointment of counsel.
J-S20028-17



      In my view, our decision in Commonwealth v. Guthrie, 749 A.2d 502

(Pa.Super. 2000), mandates reversal. Guthrie filed a motion to correct his

sentence as illegal. It was dismissed as untimely under the PCRA without the

appointment of counsel. We first noted that the petition in question had to be

treated as a PCRA petition since the PCRA was the sole means by which a

defendant could seek relief from his judgment of sentence after it becomes

final. We re-affirmed that any petition filed outside the time frame for seeking

direct appeal is considered a PCRA.        We concluded that, even though the

petition appeared facially untimely and even though Guthrie did not contend

that his petition was improperly denied without the appointment of counsel,

we had to reverse the dismissal of the petition. We concluded that a first-

time PCRA petitioner was entitled to the appointment of counsel, and that

deprivation   of   that   right   should    be   raised   sua   sponte.   Accord

Commonwealth v. Stossed, 17 A.3d 1286, 1290 (Pa.Super. 2011) (“where

an indigent, first-time PCRA petitioner was denied his right to counsel . . . This

Court is required to raise this error sua sponte[.]”); Commonwealth v.

Evans, 866 A.2d 442 (Pa.Super. 2005); see also Commonwealth v.

Albrecht, 720 A.2d 693 (Pa. 1998) (denial of PCRA relief cannot stand unless

a defendant is afforded counsel for purposes of a first time PCRA).

      Since the petition in question sought relief from the judgment of

sentence imposed herein, Appellant should have been appointed counsel

before it was denied. I would vacate and remand; hence, this dissent.

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