J-S62036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

FREDDIE SILVA

                        Appellant                     No. 2273 MDA 2015


            Appeal from the Order Entered November 24, 2015
             In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0003369-2007


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

JUDGMENT ORDER BY GANTMAN, P.J.:                  FILED AUGUST 22, 2016

      Appellant, Freddie Silva, appeals pro se from the order entered in the

Dauphin County Court of Common Pleas, which denied his pro se petition for

collateral relief (labeled as a petition for writ of coram nobis). On December

19, 2007, Appellant entered a negotiated guilty plea to failure to comply

with sex offender registration requirements.        The court imposed the

negotiated sentence of five years’ probation. On June 21, 2010, the court

revoked Appellant’s probation based on Appellant’s inappropriate sexual

contact with his girlfriend’s 11-year-old daughter.    The court resentenced

Appellant on November 15, 2010, to 3½-7 years’ imprisonment. Appellant

did not pursue direct review. On September 28, 2015, Appellant filed a pro

se petition for writ of coram nobis, claiming his conviction and sentence were

illegal based on our Supreme Court’s decision in Commonwealth v.
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Neiman, 624 Pa. 53, 84 A.3d 603 (2013).1                 On November 24, 2015, the

court denied Appellant’s petition for relief.          Appellant timely filed a pro se

notice of appeal on December 21, 2015.2

       Preliminarily, any petition for post-conviction collateral relief will

generally be considered a PCRA petition, regardless of how the applicant

captions the petition, if the petition raises issues cognizable under the PCRA.

See Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998); 42

Pa.C.S.A. § 9542 (stating PCRA shall be sole means of obtaining collateral

relief and encompasses all other common law and statutory remedies for

same purpose). Additionally:

          Pursuant to the rules of criminal procedure and interpretive
          case law, a criminal defendant has a right to
          representation of counsel for purposes of litigating a first
          PCRA petition through the entire appellate process. …

                                       *       *   *

          While the right to legal representation in the PCRA context
          is not constitutionally derived, the importance of that right
____________________________________________


1
  The Neiman Court held that Act 152 of 2004 (“Act 152”) (which, inter alia,
made various amendments to the Crimes Code to create criminal offenses
for individuals subject to sexual offender registration requirements who fail
to comply) violated the single subject rule of Article III, Section 3 of the
Pennsylvania Constitution. The Court concluded the portions of Act 152
amending Pennsylvania’s Megan’s Law were not severable from the other
provisions of Act 152; and the Court struck Act 152 in its entirety. See id.
2
   On December 29, 2015, the court ordered Appellant to file a Pa.R.A.P.
1925(b) statement. The certified record does not contain Appellant’s concise
statement. Based on our disposition, we need not decide if Appellant timely
filed his Rule 1925(b) statement.



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         cannot be diminished      merely      due   to    its   rule-based
         derivation. …

Commonwealth v. Robinson, 970 A.2d 455, 457-59 (Pa.Super. 2009) (en

banc).   Importantly, “[a]n indigent petitioner is entitled to appointment of

counsel on his first PCRA petition, even where the petition appears

untimely on its face.”      Commonwealth v. Perez, 799 A.2d 848, 851

(Pa.Super. 2002) (emphasis added).      “In such cases, counsel is appointed

principally to determine whether the petition is indeed untimely, and if so,

whether any exception to the timeliness requirements…applies.” Id. at 852.

See   also   Pa.R.Crim.P.   904(C),   (F)(2)    (stating     when     unrepresented

defendant shows he is unable to afford or procure counsel, court shall

appoint counsel to represent defendant on first PCRA petition).

      Instantly, Appellant claims his conviction and sentence are illegal

based on the Supreme Court’s decision in Neiman.                 Appellant’s issue is

cognizable under the PCRA.     See generally Commonwealth v. Fowler,

930 A.2d 586 (Pa.Super. 2007), appeal denied, 596 Pa. 715, 944 A.2d 756

(2008) (holding any collateral attack on legality of sentence must be raised

in PCRA petition).     See also 42 Pa.C.S.A. § 9543(a)(2) (explaining

challenges to legality of conviction and sentence are cognizable under

PCRA). Thus, the court should have treated Appellant’s prayer for collateral

relief as a first PCRA petition. See id.; Fowler, supra. Further, the record

suggests Appellant is indigent and entitled to appointment of counsel. See

Pa.R.Crim.P. 904(C), (F)(2); Robinson, supra; Perez, supra. Therefore,

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the best resolution of this case is to vacate and remand for the court to

evaluate Appellant’s indigency; if Appellant qualifies as indigent, the court

must appoint counsel for Appellant and direct appointed counsel to file an

amended PCRA petition or an otherwise appropriate filing. Accordingly, we

vacate and remand for further proceedings.

      Order vacated; case remanded with instructions.         Jurisdiction is

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2016




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