J-S12020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

DANNY MARSTELLAR,

                            Appellant              No. 2012 EDA 2015


                  Appeal from the Order Entered June 3, 2015
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0003957-2014


BEFORE: MUNDY, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED FEBRUARY 18, 2016

        Appellant, Danny Marstellar, appeals from the order entered on June

3, 2015. We vacate the trial court’s order and remand.

        On February 17, 2015, Appellant pleaded guilty to burglary. 1   That

same day, the trial court sentenced Appellant to serve a term of 12 to 60

months in prison. Appellant did not file a timely post-sentence motion or a

timely notice of appeal to this Court and, on April 8, 2015, the trial court

granted Appellant’s counsel’s motion for leave to withdraw appearance. Trial

Court Order, 4/8/15, at 1.

        On May 1, 2015 – which was after Appellant’s judgment of sentence

became final – Appellant filed a pro se “Motion to Modify and Reduce
____________________________________________


1
    18 Pa.C.S.A. § 3502(a)(4).




*Retired Senior Judge assigned to the Superior Court.
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Sentence.”     The trial court did not appoint counsel to represent Appellant.

The trial court then denied Appellant’s pro se motion on June 3, 2015,

reasoning that it was an untimely-filed post-sentence motion from the

judgment of sentence. Trial Court Order, 5/1/15, at 1.

       The trial court appointed counsel to represent Appellant on June 22,

2015 and appointed counsel filed a timely notice of appeal on July 2, 2015.

Appellant raises the following claim to this Court:

         Whether the trial court committed legal error by denying
         Appellant’s appeal where there was an issue of credit for
         time served which is never an untimely claim and where
         claims should have been treated as a timely filed PCRA?

Appellant’s Brief at 4 (some internal capitalization omitted). 2

____________________________________________


2
  We note that, within Appellant’s counseled Pennsylvania Rule of Appellate
Procedure 1925(b) statement, Appellant did not claim that the trial court
erred when it failed to treat his “Motion to Modify and Reduce Sentence” as a
timely PCRA petition. Rather, within his counseled Rule 1925(b) statement,
Appellant raised the following claims:

         [1.] The [trial] court manifestly abused its discretion by
         denying [Appellant’s] petition to reinstate appellate rights in
         concluding that [Appellant] fully understood what his
         agreement with the Commonwealth entailed in regards to
         his sentence and appellate rights.

         [2.] The [trial] court manifestly abused its discretion and
         committed an error of law by denying [Appellant’s] Motion
         to Modify and Reduce Sentence, where the sentence was
         not the agreed upon sentence at the time of the plea
         agreement.

         [3.] The [trial] court manifestly abused its discretion and
         committed an error of law by denying [Appellant’s Motion to
(Footnote Continued Next Page)


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      As noted above, after Appellant’s judgment of sentence became final

and while Appellant was no longer represented by counsel, Appellant filed a

pro se “Motion to Modify and Reduce Sentence.” Since this motion was filed

after Appellant’s judgment of sentence became final, the trial court should

have sua sponte treated the motion as a first petition filed under the Post-

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Commonwealth

v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002) (“the PCRA provides

the sole means for obtaining collateral review, and [] any petition filed after

the judgment of sentence becomes final will be treated as a PCRA petition”).

Further, since Appellant has at all times been indigent and since this was

Appellant’s first PCRA petition, the trial court should have appointed counsel

to represent Appellant. See Pa.R.Crim.P. 904(C).

      In this case, we must conclude that the trial court erred when it failed

to appoint counsel to represent Appellant on his first PCRA petition. “[I]t is

undisputed that first time PCRA petitioners have a rule-based right to
                       _______________________
(Footnote Continued)

         Modify and Reduce Sentence], where [Appellant] did not
         receive credit for time served.

         [4.] The [trial] court manifestly abused its discretion and
         committed an error of law by denying [Appellant’s] Motion
         to Modify and Reduce Sentence, where such modifications
         can be made following the [30-]day time period and
         therefore, [the] motion should not be deemed untimely.

Appellant’s Rule 1925(b)            Statement,    7/20/15,   at   2   (some   internal
capitalization omitted).




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counsel.”   Commonwealth v. Figueroa, 29 A.3d 1177, 1180 n.6 (Pa.

Super. 2011). This right to counsel “exists throughout the post-conviction

proceedings, including any appeal from [the] disposition of the petition for

post-conviction relief.” Commonwealth v. Quail, 729 A.2d 571, 573 (Pa.

Super.   1999)   (internal     citations   and    quotations    omitted);      see also

Pa.R.Crim.P. 904(C).     Here, while the trial court appointed counsel to

represent Appellant on appeal, the trial court only did so after it denied his

petition – and the court did not appoint counsel to represent Appellant

during the underlying proceedings.            This constitutes error, as it forced

Appellant to litigate the entirety of his first PCRA petition without the aid of

an attorney.

      Moreover, although Appellant did not properly assert in his 1925(b)

statement that the trial court erred in failing to treat his motion as a first

PCRA petition and in failing to appoint counsel, our Supreme Court has

explained that “[t]he denial of PCRA relief cannot stand unless the petitioner

was afforded the assistance of counsel.” Commonwealth v. Albrecht, 720

A.2d 693, 699 (Pa. 1998).         Thus, we have held that “where an indigent,

first-time PCRA petitioner was denied his right to counsel – or failed to

properly waive that right – this Court is required to raise this error sua

sponte   and   remand    for     the   PCRA      court   to   correct   that   mistake.”

Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011).




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         In the case at bar, Appellant was deprived of his rule-based right to

have appointed counsel for his first PCRA petition. As such, we vacate the

order dismissing Appellant’s PCRA petition and remand this case to the trial

court.

         Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2016




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