J-S61022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                             :        PENNSYLVANIA
                                             :
               v.                            :
                                             :
                                             :
 ROBERT VANGIESON                            :
                                             :
                     Appellant               :   No. 1356 EDA 2018

                   Appeal from the PCRA Order April 17, 2018
      In the Court of Common Pleas of Monroe County Criminal Division at
                        No(s): CP-45-CR-0002841-2012

BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BOWES, J.:                          FILED NOVEMBER 29, 2018

       Robert Vangieson appeals, pro se and in forma pauperis (“IFP”), from

the order that dismissed his petition for a writ of habeas corpus as an untimely

petition for relief under the Post Conviction Relief Act (“PCRA”). We vacate

the   order   and   remand   for   further   proceedings   consistent   with   this

memorandum.

       The PCRA court summarized the history of this case as follows.

            On March 20, 2013, Appellant pleaded guilty to simple
       assault and terroristic threats. On June 6, 2013, Appellant was
       sentenced to 12 to 24 months for simple assault and 12 to 24
       months for terroristic threats.      Said sentences were run
       consecutive to a sentence Appellant was serving on a
       Northampton County case for an aggregate term of 74 to 150
       months. Appellant received a time credit of 16 days. Appellant
       did not file post-sentence motions or a direct appeal of his
       sentence.

             On August 18, 2016, Appellant filed his first, pro se “Motion
       for Time Credit.” On August 26, 2016, said motion was denied by
       order of th[e trial] court, stating Appellant’s time credit had been
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      correctly calculated and th[e trial] court was without jurisdiction
      to modify Appellant’s sentence as said motion was untimely. . . .
      Appellant did not appeal [the] decision.

             On March 23, 2018, Appellant filed his second, pro se
      “Motion for Time Credit” and an accompanying “Petition for
      Habeas Corpus Relief.” We treated said motion and petition as a
      petition for [PCRA relief] . . . . Accordingly, as Appellant’s PCRA
      petition was untimely, we issued a notice of intent to dismiss
      without hearing pursuant to Pennsylvania Rule of Criminal
      Procedure 907 on March 28, 2018.

            On April 6, 2018, Appellant filed a response to our notice of
      intent to dismiss. However, Appellant not having presented any
      new or additional information to the court in his response that
      would overcome the jurisdictional timeliness requirements of a
      PCRA [petition], [the court] denied Appellant’s petition by order
      dated April 17, 2018.

PCRA Court Opinion, 5/24/18, at 1-2 (unnecessary capitalization omitted).

      Appellant filed a timely notice of appeal, and both Appellant and the

PCRA court complied with Pa.R.A.P. 1925. Appellant presents two questions

on appeal:

      I.     Did the court below err as a matter of law when it converted
             Appellant’s motion for time served into a PCRA petition?

      II.    Did the court below err as a matter of law when it failed to
             grant Appellant the proper credit for time served?

Appellant’s brief at 4 (unnecessary capitalization omitted).

      We begin our review with an examination of the applicable law. The

first principle of note is that “the PCRA subsumes all forms of collateral relief,

including habeas corpus, to the extent a remedy is available under such

enactment.” Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007).

Indeed, “any motion filed after the finality of a sentence that raises an issue

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that can be addressed under the PCRA is to be treated as a PCRA petition.”

Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.Super. 2013).                   “An

appellant’s challenge to the trial court’s failure to award credit for time spent

in custody prior to sentencing involves the legality of sentence.         Issues

concerning the legality of sentence are cognizable under the PCRA.”1

Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.Super. 2004) (citations

omitted). Accordingly, Appellant’s first motion for time credit filed in 2016

should have been treated as his first PCRA petition, and his 2018 habeas

corpus petition/time credit motion should have been treated as his second

PCRA petition.2

       The second relevant rule of law is that a PCRA petitioner is entitled to

the assistance of counsel in litigating his first petition. Commonwealth v.

Roane, 142 A.3d 79, 100 (Pa.Super. 2016). Hence, “before the trial court

disposes of a post conviction petition, it must first make a determination as to

the petitioner’s indigence and if the petitioner is indigent, the court must

appoint counsel to assist in the preparation of said petition.” Commonwealth



____________________________________________


1 This is to be contrasted with a claim that the Department of Corrections
made an error in applying court-ordered time credit to a sentence, which is
addressed by an action brought in the Commonwealth court rather than
through the PCRA. See, e.g., Commonwealth v. Heredia, 97 A.3d 392,
394-95 (Pa.Super. 2014).

2It appears that the PCRA court recognized this, as its Rule 1925(a) statement
authored for this appeal includes “SECOND PCRA PETITION APPEAL” in its
caption.

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v. Hampton, 718 A.2d 1250, 1253 (Pa.Super. 1998) (internal quotation

marks and emphasis omitted). Further, if an indigent PCRA petitioner’s first

petition was adjudicated without counsel having been appointed, he is entitled

to   appointed    counsel     in    his   subsequent    PCRA     proceeding.     See

Commonwealth v. Davis, 563 A.2d 932, 933 (Pa.Super. 1989).

      Third, although Appellant does not challenge the denial of his right to

counsel, this Court has 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).

      Finally, the apparent untimeliness of a petition does not render harmless

the failure to appoint counsel. See, e.g., Commonwealth v. Smith, 818

A.2d 494, 501 (Pa. 2003) (“[A]n indigent petitioner, whose first PCRA appears

untimely, is entitled to the assistance of counsel in order to determine whether

any of the       exceptions    to   the   one-year     time   limitation appl[ies].”);

Commonwealth v. Kutnyak, 781 A.2d 1259, 1262 (Pa.Super. 2001)

(holding it was error to dismiss the PCRA petition before appointing counsel,

“despite any apparent untimeliness of the petition or the apparent non-

cognizability of the claims presented”).

      Both Appellant’s first and second motions for time credit were dismissed

without the appointment counsel or a determination of his financial status.


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According to the trial court docket, Appellant has been incarcerated since at

least January 2014. He is proceeding IFP on this appeal. Thus, it appears

that Appellant is indigent and has not yet been offered the assistance of

counsel to pursue his PCRA claims. Therefore, because “[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),

remand is necessary for appointment of counsel to assist Appellant in litigating

his petition.

      Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/18




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