J-A10004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                       Appellee

                  v.

MILLARD SHUBERT BEATTY, III

                       Appellant                  No. 1186 MDA 2014


                Appeal from the Order Entered July 1, 2014
            In the Court of Common Pleas of Lycoming County
           Criminal Division at No(s): CP-41-CR-0000284-2006

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                       Appellee

                  v.

MILLARD SHUBERT BEATTY, III

                       Appellant                  No. 1187 MDA 2014


                    Appeal from the Order July 1, 2014
            In the Court of Common Pleas of Lycoming County
           Criminal Division at No(s): CP-41-CR-0000270-2006


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                       FILED APRIL 08, 2015

     Appellant, Millard Shubert Beatty, III, appeals from the orders entered

in the Lycoming County Court of Common Pleas, denying his pro se motion

to modify sentence nunc pro tunc.     We vacate and remand for further

proceedings.
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     The relevant facts and procedural history of this appeal are as follows.

        In case [No. 270 of 2006], [Appellant] was charged with
        burglary, a felony of the first degree; conspiracy to commit
        burglary, a felony of the first degree; two counts of
        forgery, both graded as felonies of the second degree;
        criminal trespass, a felony of the third degree; access
        device fraud, a misdemeanor of the first degree;
        possessing an instrument of crime, a misdemeanor of the
        first degree; theft by unlawful taking, a misdemeanor of
        the first degree; and receiving stolen property, a
        misdemeanor of the first degree. These charges arose out
        of an incident on January 17, 2006 where [Appellant]
        entered an individual’s residence, stole checks and a debit
        card and then used the debit card to make purchases and
        cashed the checks.

        In case [No. 284 of 2006], [Appellant] was charged with
        receiving stolen property, a felony of the third degree;
        recklessly endangering another person [(“REAP”)], a
        misdemeanor of the second degree; resisting arrest, a
        misdemeanor of the second degree; possession of drug
        paraphernalia, an ungraded misdemeanor; fleeing or
        attempting to elude a police officer, a misdemeanor of the
        second degree; driving under the influence (“DUI”), an
        ungraded misdemeanor, and numerous summary offenses.
        These offenses arose out of an incident on January 22,
        2006, where police discovered [Appellant] in possession of
        a stolen vehicle and he led them on a high-speed chase
        before crashing the vehicle and being taken into custody.
        The police discovered a crack pipe on [Appellant’s] person
        during a search incident to his arrest.

        On June 7, 2006, [Appellant] pled guilty to burglary,
        conspiracy and forgery in case [No. 270 of 2006] and
        receiving stolen property, [REAP], possession of drug
        paraphernalia, fleeing and eluding, DUI and several
        summary offenses in case [No. 284 of 2006]. The court
        sentenced [Appellant] to twelve months of supervision
        under the Intermediate Punishment Program for each
        conviction in case [No. 270 of 2006], for an aggregate
        period of 36 months of Intermediate Punishment
        supervision.


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       In case [No. 284 of 2006], the court sentenced [Appellant]
       to 6 months on the Intermediate Punishment Program with
       the first 72 hours at the Lycoming County Pre-Release
       Center for DUI and 12 months of supervision on the
       Intermediate Punishment Program on each conviction for
       receiving stolen property, [REAP], and fleeing or
       attempting to elude the police.        Shortly thereafter,
       [Appellant]   violated  his    Intermediate   Punishment
       supervision. On July 19, 2006, those sentences were
       revoked and [Appellant] was resentenced. Under case
       [No. 270 of 2006], the court imposed two years of
       probation under the supervision of the Pennsylvania Board
       of Probation and Parole on each count. These sentences
       were to be served consecutive to the sentence imposed in
       case [No. 581 of 2005].1 The sentence[s] imposed for
       Count 2, conspiracy, and Count 3, forgery, were
       concurrent to each other but consecutive to the sentence
       imposed for Count 1, burglary.
          1
             In case [No. 581 of 2005], [Appellant] was
          resentenced to 13 months to 5 years of incarceration
          in a state correctional institution.

       In case [No. 284 of 2006], [Appellant] was resentenced to
       one year of probation on Count 1, receiving stolen
       property; two years of probation on Count 2, [REAP]; and
       1 year of probation on Count 4, possession of drug
       paraphernalia.    These sentences were to be served
       concurrently to each other and concurrently to the
       sentences imposed under Count 1 of case [No. 270 of
       2006], but consecutively to the period of state
       incarceration imposed in case [No. 581 of 2005].

       On June 5, 2013, [Appellant] was arrested and charged
       with multiple crimes including aggravated assault, fleeing
       or attempting to elude a police officer, [REAP], and false
       identification to law enforcement.        [Appellant] was
       incarcerated from the time of his arrest to the time of his
       final special probation violation hearing on January 13,
       2014. After the hearing, the [trial court] determined that
       [Appellant] had violated the conditions of his probation.
       The [c]ourt revoked [Appellant’s] special probation
       sentences in cases [Nos. 270 and 284 of 2006]. On Count
       1 of case [No. 270 of 2006], the [c]ourt resentenced

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          [Appellant] to one to two years of incarceration to run
          concurrently with a sentence imposed in case [No. 253 of
          2013] of Columbia County. On Count 2 of case [No. 270
          of 2006], the [c]ourt resentenced [Appellant] to one to two
          years of incarceration to run concurrently with the Count 1
          sentence and the sentence imposed in case [No. 253 of
          2013] of Columbia County. On Count 3 of case [No. 270
          of 2006], the [c]ourt resentenced [Appellant] to three to
          nine months of incarceration to run concurrently to the
          sentence imposed in case [No. 253 of 2013] of Columbia
          County and the sentences imposed in Count 1 and Count
          2. On Count 2 of [No. 284 of 2006], the [c]ourt sentenced
          [Appellant] to three to nine months of incarceration to run
          concurrently with the sentences imposed in case [No. 270
          of 2006.1] [Appellant] received credit for time served from
          January 9, 2013 to February 21, 2013. He also received
          credit for time served on March 5, 2013. He also received
          credit for time served from June 6, 2013 to January 12,
          2014.

          On March 25, 2014, [Appellant] pled guilty to the charges
          of attempting to elude a police officer and [REAP], which
          arose from his arrest on June 5, 2013. On March 25,
          2014, the [trial court] imposed a sentence of 18 to 36
          months of incarceration to run consecutively to the other
          sentences being served. [Appellant] did not file a post-
          sentence motion and did not appeal the sentence of March
          25, 2014.

          On June 25, 2014, [Appellant] pro se filed a “Motion to
          Modify Sentence Nunc Pro Tunc” [at Nos. 270 and 284 of
          2006]. In the motion, [Appellant] asked the [c]ourt “to
          sever part of the credit for time served.” Specifically,
          [Appellant] wanted the time from June 6, 2013 to January
          12, 2014 “severed.”       The [c]ourt determined that
          [Appellant] wanted the time served from June 6, 2013 to
          January 12, 2014 applied to his sentence imposed on
          March 25, 2014. On July 1, 2014, the [c]ourt denied
          [Appellant’s] motion.
____________________________________________


1
  The court determined Appellant had completed serving his sentences for
the remaining convictions. (Order, dated 1/13/14, at 2).



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(Trial Court Opinion, filed September 11, 2014, at 1-3) (internal citations to

the record omitted).

       Appellant timely filed a pro se notice of appeal on July 16, 2014. On

July 21, 2014, this Court ordered the trial court to conduct an on-the-record

inquiry to determine whether Appellant desired counsel on appeal, pursuant

to Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).2 The trial

court conducted the Grazier hearing on August 19, 2014, and it determined

Appellant’s waiver of appellate counsel was knowing, voluntary, and

intelligent.

       Appellant raises five issues for our review:

          WHETHER [THE COURT] HAD THE JURISDICTION TO HEAR
          AND ANSWER THE MOTION (MOTION TO MODIFY NUNC
          PRO TUNC)…?

          WHETHER        [THE     COURT]       ERRED   IN   DENYING   THE
          MOTION?

          WHETHER THE TIME THAT WAS CREDITED TO
          [APPELLANT’S] SENTENCE WAS PROPERLY APPLIED IN
          APPLICATION OF CURRENT LAW AND PRACTICE?

          WHETHER THE TIME SHOULD HAVE BEEN SEVERED FROM
          THE SENTENCE AND ALLOWED TO ACCUMULATE TOWARD
          [APPELLANT’S] NEW CRIMINAL CHARGES?

          WHETHER THE TIME CREDITED WAS                     ERRONEOUSLY
          APPLIED TO [APPELLANT’S] SENTENCE?
____________________________________________


2
  Prior to the Grazier hearing, on July 23, 2014, the court ordered Appellant
to file a concise statement of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(b). Appellant subsequently complied with the court’s order.



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(Appellant’s Brief at 3).

        As a prefatory matter, “[T]he [Post Conviction Relief Act (“PCRA”)3]

provides the sole means for obtaining collateral review, and…any petition

filed after the judgment of sentence becomes final will be treated as a PCRA

petition.”    Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa.Super.

2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008) (quoting

Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa.Super. 2002)).

See also Commonwealth v. Weimer, 756 A.2d 684, 685-86 (Pa.Super.

2000), appeal denied, 564 Pa. 695, 764 A.2d 50 (2000) (explaining pro se

post-conviction petitions couched in terms of habeas corpus and legality of

sentence actually seek relief available under PCRA).            “[A] court may

entertain a challenge to the legality of the sentence so long as the court has

jurisdiction to hear the claim. In the PCRA context, jurisdiction is tied to the

filing of a timely PCRA petition.”               Fowler, supra at 592 (quoting

Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super. 2005 (en banc),

appeal denied, 591 Pa. 688, 917 A.2d 844 (2007)). Challenges to a court’s

allocation of credit for time served implicate the legality of sentence.

Commonwealth v. Pettus, 860 A.2d 162 (Pa.Super. 2004), appeal denied,

584 Pa. 706, 885 A.2d 41 (2005).

        Further, an indigent petitioner is entitled to representation by counsel
____________________________________________


3
    42 Pa.C.S.A. §§ 9541-9546.



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for a first PCRA petition.    Commonwealth v. White, 871 A.2d 1291

(Pa.Super. 2005). This right to representation exists throughout the post-

conviction proceedings, including any appeal from disposition of the PCRA

petition. Id. “This right to counsel, although not constitutionally mandated,

derives from the Pennsylvania Rules of Criminal Procedure, see Pa.R.Crim.P.

904(B)….” Commonwealth v. Stout, 978 A.2d 984, 988 (Pa.Super. 2009).

The right is unaffected even if the petition is untimely on its face. Id. See

also Commonwealth v. Evans, 866 A.2d 442, 445 (Pa.Super. 2005)

(stating, “The issue of whether the petitioner is entitled to relief is another

matter entirely, which is to be determined after the appointment of counsel

and the opportunity to file an amended petition”). Where a petitioner’s right

to representation has been effectively denied by the action of court or

counsel, the petitioner is entitled to have his case remanded to the PCRA

court for appointment of counsel to assist with the PCRA petition.

Commonwealth v. Perez, 799 A.2d 848 (Pa.Super. 2002).

      Instantly, Appellant claims his revocation sentences are illegal,

because the sentencing court should not have applied certain credit for time

served to the sentences imposed following the revocation of probation at

Nos. 270 and 284 of 2006. Instead, Appellant insists the court should have

waited and applied the credit for time served to the sentences subsequently

imposed at an unrelated docket number on March 25, 2014. As expressed,

Appellant challenges the legality of his sentences.      See Pettus, supra.


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J-A10004-15


Such claims are generally cognizable under the PCRA. See Fowler, supra.

The trial court, however, failed to apply the PCRA to Appellant’s filing.

Instead, the court evaluated the pro se motion to modify sentence nunc pro

tunc independent of the PCRA and denied relief without appointing counsel

to assist Appellant with the presentation of his claims.

       Significantly, the current petition represents Appellant’s first collateral

attack upon the judgment of sentence. Because Appellant’s pro se motion to

modify sentence nunc pro tunc is the functional equivalent of a PCRA

petition, the court should have confirmed Appellant’s in forma pauperis

status and determined whether Appellant was entitled to and desired

appointed counsel to assist with the filing of Appellant’s first PCRA petition. 4

See White, supra. Here, the court effectively denied Appellant the right to

counsel on his first PCRA petition.5 See Perez, supra.

       Therefore, we conclude the best resolution of this case is to vacate the

order denying Appellant’s pro se motion and remand the case for further
____________________________________________


4
  On October 8, 2013, the court appointed a member of the public
defender’s office to represent Appellant. Appellant appeared with appointed
counsel at the January 13, 2014 violation hearing. Thereafter, Appellant
acted pro se.
5
  We come to this conclusion, notwithstanding the Grazier proceeding
previously conducted because that proceeding was linked solely to
Appellant’s waiver of counsel on appeal.             Nevertheless, an indigent
petitioner’s right to counsel for a first PCRA petition is an altogether separate
matter, and we are unwilling to construe Appellant’s prior decision to
proceed pro se on this appeal as a blanket rejection of counsel for PCRA
purposes.



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proceedings. Procedurally, Appellant will be placed in the same position he

occupied when he initially filed his pro se motion to modify sentence nunc

pro tunc. Upon remand, the court must determine whether Appellant wants

counsel to assist with the filing of an amended PCRA petition and any other

cognizable claim Appellant wishes to raise.      Counsel must consult with

Appellant and either file an amended first PCRA petition or a proper “no-

merit” letter addressing Appellant’s claims.      If, after another Grazier

hearing, Appellant still wants to proceed pro se, the court must issue proper

notice and an order deciding the PCRA petition. Appellant can then file a pro

se notice of appeal.6

       Orders vacated; case remanded for further proceedings. Jurisdiction is

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/2015



____________________________________________


6
  Appellant has also filed a separate pro se “petition for appeal of order,”
asking this Court to review issues that are identical to those set forth in his
appellate brief. Due to our disposition, we deny Appellant’s open motion as
moot.



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