Com. v. Calmese, W.

J-S71045-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
WESLEY HERB CALMESE
Appellant No. 2137 EDA 2015
Appeal from the PCRA Order June 29, 2015
in the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0006511-2009
BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.
JUDGMENT ORDER BY FITZGERALD, J.: FILED October 6, 2016.
Appellant, Wesley Herb Calmese, appeals from the order entered in
the Montgomery County Court of Common Pleas denying his pro se Post
Conviction Relief Act1 (“PCRA”) petition. We vacate the order below and
remand for the appointment of counsel.
The facts of this case are unnecessary for our disposition. As a
prefatory matter, we consider whether Appellant is entitled to the
appointment of counsel for his first PCRA petition, even if it is facially
untimely.
“Because the instant appeal hinges upon a question of law, our
standard of review is plenary. In proceedings under the PCRA, the scope of
review of an appellate court is limited by the parameters of the act.”
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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Commonwealth v. Smith, 818 A.2d 494, 498 (Pa. 2003). Our
Pennsylvania Supreme Court opined:
Rule 904 provides, in relevant part, that “when an
unrepresented defendant satisfies the judge that the
defendant is unable to afford or otherwise procure counsel,
the judge shall appoint counsel to represent the defendant
on the defendant’s first petition for post-conviction
collateral relief.” Pa.R.Crim.P. 904(B) (emphasis
added). . . . We have stated that the rules of criminal
procedure require the appointment of counsel in PCRA
proceedings.
* * *
Even though the timeliness requirements of the PCRA
leave a court without jurisdiction to consider the merits of
an untimely petition, they do not preclude a court from
appointing counsel to aid an indigent petitioner in
attempting to establish an exception to the time-bar.
Although the PCRA court determines the issue of timeliness
prior to reaching the merits of a PCRA petition, the PCRA
court is not divested of its jurisdiction until it analyzes the
facts and makes the determination that the petition is
time-barred. Therefore, an indigent petitioner, who files
his first PCRA petition, is entitled to have counsel
appointed to represent him during the determination of
whether any of the exceptions to the one-year time
limitation apply.
Id. at 498-99 (citation omitted).2
Instantly, the PCRA court opined:
[I]n the interest of justice, this court concludes that
[Appellant’s] filing should be treated as his first PCRA
petition to which he is entitled to Counsel. . . .
Consequently, should the Superior Court panel agree and
2
We note that in his PCRA petition, Appellant checked the box stating “I do
not have a lawyer and I am without financial resources or otherwise unable
to obtain a lawyer.” PCRA Pet., 6/16/14, at 7.
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remand the record, this court will proceed to appoint PCRA
Counsel for review of the record for any other potential
claims which may constitute an exception to the PCRA time
bar.
PCRA Ct. Op., 7/11/16, at 10-11.3 We agree that Appellant is entitled to
have counsel appointed to represent him. See Smith, 818 A.2d at 498-99.
Accordingly, we remand this matter to the PCRA court for the
appointment of counsel.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2016
3
Appellant contends that he is entitled to the appointment of counsel.
Appellant’s Brief at 18. Similarly, the Commonwealth avers Appellant is
entitled to a remand for the appointment of counsel. Commonwealth’s Brief
at 7.
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