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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

EDGARDO DELVALLE-RIVERA

                            Appellant                No. 1435 MDA 2015


                      Appeal from the Order July 27, 2015
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0001795-2012
                                          CP-06-CR-002495-2012


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

JUDGMENT ORDER BY PANELLA, J.                      FILED AUGUST 15, 2016

        Appellant, Edgardo Delvalle-Rivera, who failed to file a direct appeal

from his judgment of sentence and thereafter failed to timely avail himself of

the Post Conviction Relief Act (PCRA),1 appeals pro se from the order of the

Court of Common Pleas of Berks County, which denied his pro se “Motion to

Modify and Correct Illegal Sentence Nunc Pro Tunc.” In the motion, Delvalle-

Rivera requested that the trial court vacate his judgment of sentence based

on his contention that he is serving an illegal sentence. See “Motion to

Modify and Correct Illegal Sentence Nunc Pro Tunc,” 7/24/15, at 3-8. The

trial court did not treat this motion as a PCRA petition; however, it should


____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
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have. See 42 Pa.C.S.A. § 9542; Commonwealth v. Eller, 807 A.2d 838,

842 (Pa. 2002); Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001).

      In this Court’s June 29, 2016 order, we noted that it is unclear from

the record whether Delvalle-Rivera is indigent. See Commonwealth v.

Delvalle-Rivera, 1435 MDA 2015, at 1 (Pa. Super., filed June 29, 2016)

(order). We remanded to the trial court to make this determination, on the

basis that if Delvalle-Rivera is indigent, he is entitled to the appointment of

counsel. See id.; see also Pa.R.Crim.P. 940(C) (“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 [PCRA] relief.”). Following a

hearing,   the   court determined    that    Delvalle-Rivera is indigent.   See

Commonwealth v. Delvalle-Rivera, 1435 MDA 2015, at 1 (Berks Comm.

Pl., filed July 15, 2016) (order).

      We remand to the trial court for the appointment of counsel. Appointed

counsel shall review the record and either file an amended PCRA petition or

move to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927

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

1988) (en banc).

      Order vacated. Case remanded for proceedings consistent with this

judgment order. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/2016




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