J-S52010-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

    COMMONWEALTH OF PENNSYLVANIA,           :       IN THE SUPERIOR COURT
                                            :                 OF
                    Appellee                :            PENNSYLVANIA
                                            :
                       v.                   :
                                            :
    MICHAEL ANDREW NOLL,                    :
                                            :
                    Appellant               :       No. 47 MDA 2018

              Appeal from the Order Entered November 27, 2017
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0004981-2011

BEFORE:       BENDER, P.J.E., MCLAUGHLIN, J., and STRASSBURGER, J.*

DISSENTING MEMORANDUM BY STRASSBURGER, J.:

                                                   FILED OCTOBER 03, 2018

        I would vacate the PCRA court’s order and remand for the appointment

of counsel. Accordingly, I respectfully dissent.

        Pursuant to Pa.R.Crim.P. 904(C), an indigent first-time PCRA petitioner

is entitled to the appointment of counsel. Here, Appellant is an indigent1 first-

time PCRA petitioner, but the PCRA court failed to appoint counsel to represent

him throughout the PCRA proceedings. The Majority finds this failure to be

harmless error because Appellant was no longer serving his sentence.

Majority Memorandum at 5-6, quoting Commonwealth v. Hart, 911 A.3d

939, 942 (Pa. Super. 2006). However, this Court more recently has held that,




1   Appellant is proceeding in forma pauperis on appeal.

*Retired Senior Judge assigned to the Superior Court.
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pursuant to Pa.R.Crim.P. 904(C), indigent first-time PCRA petitioners are

entitled to the appointment of counsel, even if their petitions appear untimely

or they do not appear eligible for relief due to the expiration of their sentences.

See Commonwealth v. Ramos, 14 A.3d 894 (Pa. Super. 2011).

      In Ramos, the PCRA court did not appoint counsel to represent Ramos

in his PCRA proceedings and dismissed Ramos’s pro se PCRA petition because

he was not currently serving his sentence.         This Court vacated the PCRA

court’s order and remanded for the appointment of counsel. In doing so, this

Court reasoned as follows.

      The comment to [Pa.R.Crim.P. 904] explains, “[c]onsistent with
      Pennsylvania post-conviction practice, it is intended that counsel
      be appointed in every case in which a defendant has filed a
      petition for post-conviction collateral relief for the first time and is
      unable to afford counsel or otherwise procure counsel.” (emphasis
      added). It is well-established that a first-time PCRA petitioner
      whose petition appears untimely on its face is entitled to
      representation for assistance in determining whether the petition
      is timely or whether any exception to the normal time
      requirements is applicable. Commonwealth v. Guthrie, 749
      A.2d 502, 504 (Pa. Super. 2000); Commonwealth v. Stout, 978
      A.2d 984, 988 (Pa. Super. 2009). We see no practical difference
      between that situation and this one [here, in which the petitioner
      appears ineligible for relief based on the expiration of his
      sentence]. Both types of petitioner appear to be barred from PCRA
      relief; however, those apparent barriers may be felled by the aid
      of a legal advocate. Thus, although [Ramos’s] petition appears to
      be untimely and he appears to be ineligible for PCRA relief, counsel
      [] may be able to overcome both of those hurdles through an
      examination of all of the relevant circumstances.

Ramos, 14 A.3d at 895–96.       The same holds true for Appellant.




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     The Majority states that the record confirms that Appellant is no longer

serving his sentence of incarceration for the at-issue offense.     Majority

Memorandum at 5. That is not the issue. The issue is whether he is still

serving his sentence, which in many cases may include a probationary tail.

Also, the interaction of more than one sentence can be quite complicated at

times.

     Accordingly, I would vacate the PCRA court’s order denying the PCRA

petition, and remand for the appointment of counsel.




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