J-A29005-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                  Appellee               :
                                         :
            v.                           :
                                         :
RICHARD ALAN DELP,                       :
                                         :
                  Appellant              : No. 146 WDA 2014

           Appeal from the Order entered November 10, 2008,
               Court of Common Pleas, Armstrong County,
           Criminal Division at No(s): CP-03-CR-0000105-1999,
           CP-03-CR-0000106-1999, CP-03-CR-0000107-1999,
          CP-03-CR-0000108-1999 and CP-03-CR-0000712-1998

BEFORE: DONOHUE, ALLEN and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED OCTOBER 17, 2014

      Richard Alan Delp (“Delp”) appeals from the order of court denying his

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A §§ 9541-9546. We vacate and remand for further proceedings.

      The relevant history of this case may be summarized as follows.      In

2001, Delp was convicted of multiple offenses and sentenced to 60 to 144

years of incarceration.   This Court affirmed his judgment of sentence in

March 2002 and the Pennsylvania Supreme court denied his petition for

allowance of appeal in January 2004.

      No further action occurred until June 2008, when Delp filed a petition

pro se with the trial court, in which he argued that the trial court erred in

imposing his sentence because it failed to merge certain offenses. Motion to




*Retired Senior Judge assigned to the Superior Court.
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Modify and Reduce Sentence, 6/19/08.             Recognizing that this claim

challenges the legality of Delp’s sentence, the trial court treated the filing as

a PCRA petition and issued a Pa.R.Crim.P. 907 notice of intent to dismiss

based upon its conclusion that the petition was untimely. Delp filed a pro se

response to the Rule 907 notice, claiming that his trial counsel failed to

communicate with him and that he did not discover until May 2008 that his

direct appeal efforts had concluded. On November 10, 2008, the trial court

dismissed Delp’s petition.    In the memorandum filed contemporaneously

with the dismissal, the trial court explained that Delp’s petition was

untimely, that “it is obvious that none of the exceptions [to the PCRA’s

timeliness requirements] is even remotely applicable,” and that Delp failed

to “assert due diligence in discovering the denial of his appeals.” Trial Court

Opinion, 11/10/08, at 3; Addendum to Memorandum and Order, 11/10/08,

at 1.

        Included with the order dismissing his PCRA petition was an

application to obtain representation by the Public Defender and information

regarding the period in which Delp had to file an appeal from the dismissal of

his petition. In November 2012, Delp filed another pro se petition alleging

that he sent the form to the Public Defender in 2008 but never received a

reply. In response to Delp’s petition, the trial court set a hearing and, for

the first time, appointed counsel to represent Delp. Following the hearing,




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the trial court reinstated Delp’s rights to appeal the dismissal of his PCRA

petition nunc pro tunc. This timely appeal followed.

      We agree with the trial court’s determination that the pro se petition

Delp filed in June 2008 should be treated as a PCRA petition, as challenges

to   the     legality   of   a   sentence   are   cognizable   thereunder,   see

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

that issues concerning the legality of sentence are cognizable under the

PCRA), and “[i]t is well settled that any collateral petition raising issues with

respect to remedies offered under the PCRA will be considered a PCRA

petition.”    Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa. Super.

2001).

      “Pursuant to the rules of criminal procedure and interpretive case law,

a criminal defendant has a right to representation of counsel for purposes of

litigating a first PCRA petition through the entire appellate process.”

Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009). This

is the case even where the PCRA petition is untimely on its face and it

appears that the petitioner is otherwise ineligible for relief under the PCRA.

Commonwealth v. Ramos, 14 A.3d 894, 896 (Pa. Super. 2010).                    An

indigent pro se petitioner is entitled to the appointment of counsel for

assistance with his or her first petition filed pursuant to the PCRA.

Pa.R.Crim.P. 904(C) (“[W]hen an unrepresented defendant satisfies the

judge that the defendant is unable to afford or otherwise procure counsel,



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the judge shall appoint counsel to represent the defendant on the

defendant's first petition for post-conviction collateral relief.”).   This Court

has held that a PCRA court may not consider the merits of an indigent

petitioner’s claim until counsel has been appointed, as to do so would defeat

the purpose of the rule requiring that counsel be appointed. See

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

      As stated above, Delp’s petition is properly considered to be a PCRA

petition. In as much as the trial court appointed Delp counsel for purposes

of this appeal, it is evident that Delp is indigent.     Accordingly, Delp was

entitled to the appointment of counsel when he filed his PCRA petition, in

June 2008, and it was error for the trial court to consider the merits of that

petition before counsel was appointed.1       We therefore vacate the order

denying Delp’s petition and remand this case for the appointment of PCRA

counsel, who may then file an amended PCRA petition on Delp’s behalf.2


1
   We note for completeness that a petitioner may waive this right to counsel
and proceed pro se. In order to do so, the petitioner must express a desire
to represent himself and the PCRA court must conduct an on-the-record
colloquy to determine that the waiver is knowing, intelligent, and voluntary.
Commonwealth v. Powell, 787 A.2d 1017, 1019-20 (Pa. Super. 2001)
(citing Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998)). In this
case, Delp has not indicated that he wants to proceed pro se; to the
contrary, he explicitly complained that his inquiry to the Public Defender
went unanswered. Nonetheless, this underscores the fact that upon receipt
of Delp’s pro se petition, the trial court was required to take some action
(either appointing counsel or scheduling a Grazier hearing) before ruling on
the merits of Delp’s petition.
2
  The trial court concludes that because it reinstated Delp’s appeal rights
nunc pro tunc and appointed counsel to represent Delp in connection with

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      Order vacated. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/17/2014




that appeal, “[Delp] ultimately was given court-appointed counsel to address
all of the issues regarding the timeliness of his [PCRA] petition.” Trial Court
Opinion, 2/21/14, at 3. We disagree. Providing Delp counsel for appeal
purposes only is not the same as providing appointed counsel to draft a
cogent PCRA petition that appropriately and adequately addresses the
timeliness issues surrounding Delp’s petition. Furthermore, we reiterate that
counsel must be provided to an indigent PCRA petitioner, as “the denial of
PCRA relief cannot stand unless the petitioner was afforded the assistance of
counsel.” Kutnyak, 781 A.2d at 1262.


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