J-S71029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DONALD STALTER

                            Appellant                  No. 869 MDA 2014


                     Appeal from the Order April 29, 2014
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0001607-2007


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and FITZGERALD, J.*

JUDGMENT ORDER BY PANELLA, J.                     FILED FEBRUARY 10, 2015

        Appellant, Donald Stalter, appeals pro se from the order entered April

29, 2014, which denied his “application for writ of error coram nobis.” As

the Commonwealth and the court below acknowledge, Stalter’s application

should have been treated as a first petition filed pursuant to the Post

Conviction Relief Act (PCRA),1 and as such, he was entitled to have counsel

appointed. We vacate and remand.

        On November 6, 2007, Stalter entered a guilty plea pursuant to a

negotiated plea agreement to three counts of involuntary deviate sexual

intercourse, twenty counts of sexual abuse of children, four counts of

indecent assault, three counts of corruption of minors, and three counts of
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S.A. §§ 9541 et seq.
J-S71029-14



unlawful contact with a minor.       The trial court sentenced Stalter to an

aggregate term of incarceration of 20 to 40 years.          This Court affirmed

Stalter’s judgment of sentence by memorandum filed January 30, 2009. On

February 3, 2010, the Supreme Court of Pennsylvania denied review of

Stalter’s judgment of sentence.

      On April 24, 2014, Stalter filed the instant application for relief.       On

April 29, 2014, the court below entered an order dismissing Stalter’s

petition. This timely appeal followed.

      Preliminarily,   we   note   that   the   court   below   as   well   as   the

Commonwealth concedes that the application for relief should have been

treated as a first PCRA petition. See Commonwealth v. Pagan, 864 A.2d

1231 (Pa. Super. 2004) (PCRA subsumes writ for coram nobis so long as the

claim for relief could be heard under the PCRA’s jurisdiction).      Furthermore,

as all parties on appeal acknowledge, an indigent first time petitioner is

entitled to appointment of counsel even where the petition is patently

untimely. See Commonwealth v. Smith, 818 A.2d 494 (Pa. 2003). The

petitioner’s failure to request appointment of counsel does not negate this

right. See Commonwealth v. Guthrie, 749 A.2d 504 (Pa. Super. 2000).

Therefore, we agree with the Commonwealth and the court below that the

order should be vacated and a remand for appointment of counsel is

appropriate.




                                      -2-
J-S71029-14



      Order vacated.   Case remanded for the appointment of counsel and

further proceedings consistent with this judgment order.     Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2015




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