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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                           1   IN THE SUPERIOR COURT OF
                                                                 PENNSYLVANIA
                                 Appellee

                        v.

LARRY MILLER

                                 Appellant                     No. 1403 EDA 2016


                     Appeal from the PCRA Order April 15, 2016
                In the Court of Common Pleas of Philadelphia County
                 Criminal Division at No(s): CP-51-CR-0001474-2008

BEFORE:        BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

JUDGMENT ORDER BY LAZARUS, J.:                                  FILED APRIL 06, 2017

         Larry Miller appeals from the order, entered in the Court of Common

Pleas of Philadelphia County, dismissing his petition as untimely under the

Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46.               On March 9,

2009, Miller entered         a   negotiated guilty plea to third-degree murder' and

possession of an instrument of crime.2               The Honorable George W. Overton

sentenced Miller to an aggregate term of imprisonment of fifteen to thirty

years. Miller did not file        a   direct appeal. On August 11, 2015, Miller filed his

first   PCRA   petition, pro se, which the PCRA court dismissed as untimely.



*   Former Justice specially assigned to the Superior Court.

'   18 Pa.C.S.A. § 2502(c).

2   18 Pa.C.S.A. § 907(a).
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        Pennsylvania Rule of Criminal Procedure 904 states:               "[W]hen an

unrepresented defendant satisfies the judge that the defendant             is   unable to

afford or otherwise procure counsel, the judge shall appoint counsel to

represent the defendant on the defendant's first petition for post -conviction

collateral relief."   The Comment to Rule 904 reinforces the rule's mandatory

language, adding "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."

Pa.R.Crim.P. 904, cmt.; see Commonwealth v. Evans, 866 A.2d 442 (Pa.

Super. 2005).

        Here, our review of the certified record reflects that Miller filed his first

petition for PCRA relief acting pro se, averred       a   lack of resources to hire an

attorney, and requested the PCRA court to appoint counsel to represent him.

PCRA Petition,      8/11/15, at    7.   Because the PCRA court did not appoint

counsel to represent Miller in this first PCRA petition, we are constrained,

regardless of the apparent untimeliness of the petition, to vacate the

dismissal order.      We remand this case to the PCRA court to appoint counsel

to represent Miller (should Miller be adjudged indigent) and for further

proceedings as are appropriate under the PCRA.                  Pa.R.Crim.P. 904(C);

Evans, 866 A.2d at 444-46.

        Order vacated. Case remanded. Jurisdiction relinquished.




                                          -2
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Judgment Entered.




J    seph D. Seletyn,
Prothonotary


Date: 4/6/2017




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