Com. v. Warren, D. ( 2017 )

J-S20028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
v.
DANIEL KING WARREN
Appellant No. 2473 EDA 2016
Appeal from the Order July 1, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0004032-2015
BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.
DISSENTING MEMORANDUM BY BOWES, J. FILED OCTOBER 06, 2017
I believe that Appellant was improperly denied appointed counsel for
purposes of his first PCRA petition. I would vacate and remand, respectfully
dissenting from the majority’s decision herein.
Appellant pled guilty in this matter to criminal trespass and was
sentenced on February 14, 2016. On June 16, 2016, Appellant filed a pro se
petition for writ of habeas corpus and a petition to proceed in forma pauperis.
While the precise relief requested is difficult to ascertain, the petition relates
to how credit for time served was awarded since the conviction herein resulted
in revocation of parole or probation imposed in another matter. Relief was
denied without the appointment of counsel.
J-S20028-17
In my view, our decision in Commonwealth v. Guthrie, 749 A.2d 502
(Pa.Super. 2000), mandates reversal. Guthrie filed a motion to correct his
sentence as illegal. It was dismissed as untimely under the PCRA without the
appointment of counsel. We first noted that the petition in question had to be
treated as a PCRA petition since the PCRA was the sole means by which a
defendant could seek relief from his judgment of sentence after it becomes
final. We re-affirmed that any petition filed outside the time frame for seeking
direct appeal is considered a PCRA. We concluded that, even though the
petition appeared facially untimely and even though Guthrie did not contend
that his petition was improperly denied without the appointment of counsel,
we had to reverse the dismissal of the petition. We concluded that a first-
time PCRA petitioner was entitled to the appointment of counsel, and that
deprivation of that right should be raised sua sponte. Accord
Commonwealth v. Stossed, 17 A.3d 1286, 1290 (Pa.Super. 2011) (“where
an indigent, first-time PCRA petitioner was denied his right to counsel . . . This
Court is required to raise this error sua sponte[.]”); Commonwealth v.
Evans, 866 A.2d 442 (Pa.Super. 2005); see also Commonwealth v.
Albrecht, 720 A.2d 693 (Pa. 1998) (denial of PCRA relief cannot stand unless
a defendant is afforded counsel for purposes of a first time PCRA).
Since the petition in question sought relief from the judgment of
sentence imposed herein, Appellant should have been appointed counsel
before it was denied. I would vacate and remand; hence, this dissent.
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