J-S53024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

LARRY ELLSWORTH STEWART

                            Appellant               No. 176 MDA 2015


              Appeal from the Order Entered December 23, 2014
                 In the Court of Common Pleas of Perry County
              Criminal Division at No(s): CP-50-CR-0000496-2013


BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                         FILED SEPTEMBER 09, 2015

       Because Stewart’s pro se motion to withdraw guilty plea should have

been treated as a first petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541–9546,1 and because the trial court failed to

appoint counsel, we vacate the December 23, 2014 order denying him relief


____________________________________________


1
  On January 9, 2014, Stewart entered a guilty plea to one count of driving
under the influence (DUI), and one count of driving under suspension. See
75 Pa.C.S. §§ 3802(c) (highest rate of alcohol) (fourth offense for
sentencing purposes), and 1543(b)(1.1)(i) (summary offense), respectively.
On March 6, 2014, the trial court sentenced him to one to five years’
imprisonment on the DUI charge, and a 90 day term of imprisonment on the
driving under suspension charge, to run consecutively.    No post-sentence
motion or direct appeal was filed. On December 17, 2014, Stewart filed the
pro se motion to withdraw guilty plea underlying this appeal, claiming the
Commonwealth breached the plea agreement. The trial court denied the
motion by order filed December 26, 2014, after which Stewart filed this pro
se appeal on January 22, 2015.
J-S53024-15



and remand for a determination of indigence and, if Stewart is found to be

indigent, for the appointment of counsel.       See Commonwealth v.

Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2011), appeal denied, 863 A.2d

1144 (Pa. 2004) (treating appellant’s pro se motion challenging his guilty

plea as a PCRA petition “regardless of the manner in which the petition is

titled”; concluding appellant was entitled to counsel on his first PCRA

petition).

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2015




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