Com. v. Heck, E. ( 2018 )

J-S32001-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC SCOTT HECK :
:
Appellant : No. 1455 MDA 2017
Appeal from the PCRA Order August 22, 2017
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004604-2009
BEFORE: PANELLA, J., NICHOLS, J., and PLATT, J.
JUDGMENT ORDER BY PANELLA, J. FILED SEPTEMBER 07, 2018
Eric Scott Heck appeals pro se from the order entered in the Dauphin
County Court of Common Pleas, denying as untimely his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. Because the PCRA court failed to appoint counsel, we must vacate the
PCRA order and remand for the appointment of counsel.
Briefly, the facts and procedural history of this case are as follows. Heck
was convicted of criminal trespass and related offenses, and sentenced to
11½-23 months’ incarceration. Heck twice violated the terms of his probation,
and was resentenced both times. At the second resentencing, the trial court
imposed a period of 4-8 years’ incarceration. Heck did not file a direct appeal.
Instead, he filed the untimely, pro se PCRA petition at issue here.
____________________________________________
 Retired Senior Judge assigned to the Superior Court.
J-S32001-18
In his petition, Heck argued the resentencing court lacked jurisdiction
to modify his sentence after his notice of appeal to this Court was docketed.
And he asserted the resentencing court erred by failing to issue him credit for
time previously served. The PCRA court issued notice pursuant to Pa.R.Crim.P.
907, and ultimately dismissed Heck’s petition without a hearing. In its
memorandum opinion, the PCRA court stated Heck’s petition was untimely,
and he failed to plead or prove the applicability of one of the PCRA’s three
timeliness exceptions. The PCRA court also found that Heck’s issues were
meritless.
We review the ruling of the PCRA court to determine whether it is
supported by the record and free of legal error. See Commonwealth v
Spotz, 18 A.3d 244, 259 (Pa. 2011). We apply “a de novo standard of review
to the PCRA court’s legal conclusions.” Id. (citation omitted).
Here, the PCRA court committed error by failing to appoint counsel. “The
denial of PCRA relief cannot stand unless the petitioner was afforded the
assistance of counsel.” Commonwealth v. Albrecht, 720 A.2d 693, 699 (Pa.
1998) (citation omitted).
An indigent PCRA petitioner is entitled to the appointment of counsel on
his first post-conviction attack of his conviction. See Commonwealth v.
Stout, 978 A.2d 984, 988 (Pa. Super. 2009); Pa.R.Crim.P. 904(C). Heck is
indigent; he is proceeding in forma pauperis on appeal. This entitlement to
appointed counsel occurs even if the petition is untimely on its face. See
Commonwealth v. Smith, 818 A.2d 494, 501 (Pa. 2003); Stout, 978 A.2d
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at 988. Even in cases where an appellant does not argue his entitlement to
PCRA counsel, or challenge the waiver of that right, this Court is nevertheless
required to raise the issue sua sponte, and remand for the PCRA court to
correct the error. See Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa.
Super. 2011).
The PCRA petition at issue is the first Heck has filed. Though he did not
request the appointment of counsel at any stage in the PCRA proceedings,
neither did he explicitly waive his right to counsel. 1 Despite the petition’s
untimeliness, Heck was entitled to the assistance of counsel in litigating it.
Consequently, the PCRA court erred in failing to appoint counsel. Accordingly,
we vacate the order dismissing Heck’s petition, and remand for the
appointment of counsel.
Order vacated. Case remanded for the appointment of PCRA counsel.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/07/2018
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1 If a petitioner seeks to waive his right to counsel, the PCRA court is required
to make an on-the-record determination that the waiver is made knowingly,
intelligently, and voluntarily. See Commonwealth v. Grazier, 713 A.2d 81,
82 (Pa. 1998).
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