Com. v. Ziemba, C.

J-A20023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER ZIEMBA
Appellant No. 60 MDA 2017
Appeal from the Order Entered December 13, 2016
In the Court of Common Pleas of Wyoming County
Criminal Division at No(s): CP-66-CR-0000324-2013
BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.
JUDGMENT ORDER BY PANELLA, J. FILED FEBRUARY 09, 2018
A jury convicted Appellant, Christopher Ziemba, of open lewdness,
indecent exposure, stalking, and two counts of disorderly conduct. The trial
court sentenced him to an aggregate term of imprisonment of eight to 23 ½
months of imprisonment, to be followed by twelve months of probation on
January 14, 2015. This Court affirmed his judgment of sentence by order
dated March 16, 2016.
On November 21, 2016, Ziemba filed a pro se motion entitled
“Defendant’s Motion for Ineffective Assistance of Trial Counsel and a New
Trial.” The trial court dismissed the motion, and Ziemba filed this pro se
appeal.
Ziemba filed the November 21, 2016, motion after his judgment of
sentence had become final. See Pa.R.A.P. 1113 (petition for allowance of
J-A20023-17
appeal from Superior Court order must be filed within 30 days); 42 Pa.C.S.A.
9545(b)(3) (judgment of sentence becomes final at expiration of time for
seeking review). Furthermore, his motion alleged ineffective assistance of
trial counsel.
Under these circumstances, his motion should have been treated as
petition pursuant to the Post Conviction Relief Act (“PCRA”). See
Commonwealth v. Taylor, 65 A.3d 462, 467-468 (Pa. Super. 2013)
(finding “untimely post-sentence motion filed after finality of judgment is to
be treated as a PCRA petition,” if it raises issues cognizable under the
PCRA). We therefore remand for an assessment of Ziemba’s claims pursuant
to the PCRA.
We note the court denied Ziemba’s petition for in forma pauperis
status. Ziemba has challenged this denial on appeal and asserted that his
employment status changed as of January 1, 2017. In light of our remand,
we direct the PCRA court to determine whether Ziemba currently qualifies as
indigent and, if so, appoint him counsel. See Commonwealth v. Stossel,
17 A.3d 1286, 1290 (Pa. Super. 2011). Furthermore, we deny, as moot, the
Commonwealth’s motion to dismiss Ziemba’s appeal due to defects in his
brief.
Order vacated. Case remanded for further proceedings consistent with
this order. Commonwealth’s motion to dismiss is denied. Jurisdiction
relinquished.
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J-A20023-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/09/2018
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