Com. v. Stalter, D.

J-S71029-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONALD STALTER
Appellant No. 869 MDA 2014
Appeal from the Order April 29, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0001607-2007
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and FITZGERALD, J.*
JUDGMENT ORDER BY PANELLA, J. FILED FEBRUARY 10, 2015
Appellant, Donald Stalter, appeals pro se from the order entered April
29, 2014, which denied his “application for writ of error coram nobis.” As
the Commonwealth and the court below acknowledge, Stalter’s application
should have been treated as a first petition filed pursuant to the Post
Conviction Relief Act (PCRA),1 and as such, he was entitled to have counsel
appointed. We vacate and remand.
On November 6, 2007, Stalter entered a guilty plea pursuant to a
negotiated plea agreement to three counts of involuntary deviate sexual
intercourse, twenty counts of sexual abuse of children, four counts of
indecent assault, three counts of corruption of minors, and three counts of
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S.A. §§ 9541 et seq.
J-S71029-14
unlawful contact with a minor. The trial court sentenced Stalter to an
aggregate term of incarceration of 20 to 40 years. This Court affirmed
Stalter’s judgment of sentence by memorandum filed January 30, 2009. On
February 3, 2010, the Supreme Court of Pennsylvania denied review of
Stalter’s judgment of sentence.
On April 24, 2014, Stalter filed the instant application for relief. On
April 29, 2014, the court below entered an order dismissing Stalter’s
petition. This timely appeal followed.
Preliminarily, we note that the court below as well as the
Commonwealth concedes that the application for relief should have been
treated as a first PCRA petition. See Commonwealth v. Pagan, 864 A.2d
1231 (Pa. Super. 2004) (PCRA subsumes writ for coram nobis so long as the
claim for relief could be heard under the PCRA’s jurisdiction). Furthermore,
as all parties on appeal acknowledge, an indigent first time petitioner is
entitled to appointment of counsel even where the petition is patently
untimely. See Commonwealth v. Smith, 818 A.2d 494 (Pa. 2003). The
petitioner’s failure to request appointment of counsel does not negate this
right. See Commonwealth v. Guthrie, 749 A.2d 504 (Pa. Super. 2000).
Therefore, we agree with the Commonwealth and the court below that the
order should be vacated and a remand for appointment of counsel is
appropriate.
-2-
J-S71029-14
Order vacated. Case remanded for the appointment of counsel and
further proceedings consistent with this judgment order. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2015
-3-