Com. v. White, L.

• Court: Superior Court of Pennsylvania
• Decided: October 22, 2018
• Docket: 1467 WDA 2017
• Status: Unpublished

Opinion

J-S58004-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LAWRENCE WHITE : : Appellant : No. 1467 WDA 2017

Appeal from the Order Entered August 31, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0007825-2009

BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.: FILED OCTOBER 22, 2018

Appellant, Lawrence White, appeals pro se from the order entered on

August 31, 2017. We vacate the trial court’s order and remand.

A jury found Appellant guilty of firearms not to be carried without a

license, receiving stolen property, and false identification to law enforcement

authorities.1, 2 On July 11, 2013, the trial court sentenced Appellant to serve

an aggregate term of 24 to 48 months in prison. We affirmed Appellant’s

judgment of sentence on May 28, 2014 and the Pennsylvania Supreme Court

denied Appellant’s petition for allowance of appeal on November 5, 2014.

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1 18 Pa.C.S.A. §§ 6106, 3925, and 4914, respectively.

2 The trial court also found Appellant guilty of various motor vehicle code violations. J-S58004-18

Commonwealth v. White, 104 A.3d 62 (Pa. Super. 2014) (unpublished

memorandum) at 1-15, appeal denied, 102 A.3d 985 (Pa. 2014).

On January 24, 2017 – which was after Appellant’s judgment of

sentence became final – Appellant filed a pro se “Motion for Time Credit and

Corrected Commitment” in the trial court. The trial court did not appoint

counsel to represent Appellant. Instead, the trial court denied Appellant’s pro

se motion on August 31, 2017, reasoning that “the claims raised by

[Appellant] in the [motion] are frivolous, and any right [Appellant] had to

assert a challenge to his sentence was waived by virtue of the fact that he did

not raise these claims at the time of sentencing or in a post-sentence motion.”

Trial Court Order, 8/31/17, at 1; Trial Court Opinion, 6/7/18, at 6.

Appellant filed a timely, pro se notice of appeal. We must now vacate

the trial court’s order and remand.

As noted above, after Appellant’s judgment of sentence became final

and while Appellant was no longer represented by counsel, Appellant filed a

pro se “Motion for Time Credit and Corrected Commitment.” Since this motion

was filed after Appellant’s judgment of sentence became final, the trial court

should have sua sponte treated the motion as a first petition filed under the

Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002) (“the

PCRA provides the sole means for obtaining collateral review, and [] any

petition filed after the judgment of sentence becomes final will be treated as

a PCRA petition”). Further, since Appellant has at all times been indigent and

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since this was Appellant’s first PCRA petition, the trial court should have

appointed counsel to represent Appellant. See Pa.R.Crim.P. 904(C).

In this case, we must conclude that the trial court erred when it failed

to appoint counsel to represent Appellant on his first PCRA petition. “[I]t is

undisputed that first time PCRA petitioners have a rule-based right to

counsel.” Commonwealth v. Figueroa, 29 A.3d 1177, 1180 n.6 (Pa. Super.

2011). This right to counsel “exists throughout the post-conviction

proceedings, including any appeal from [the] disposition of the petition for

post-conviction relief.” Commonwealth v. Quail, 729 A.2d 571, 573 (Pa.

Super. 1999) (internal citations and quotations omitted); see also

Pa.R.Crim.P. 904(C).

Moreover, although Appellant did not assert in his 1925(b) statement

that the trial court erred in failing to treat his motion as a first PCRA petition

and in failing to appoint counsel, our Supreme Court has explained that “[t]he

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). Thus, we have held that “where an indigent, first-time PCRA

petitioner was denied his right to counsel – or failed to properly waive that

right – this Court is required to raise this error sua sponte and remand for the

PCRA court to correct that mistake.” Commonwealth v. Stossel, 17 A.3d

1286, 1290 (Pa. Super. 2011).

In the case at bar, Appellant was deprived of his rule-based right to

have appointed counsel for his first PCRA petition. As such, we vacate the

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order dismissing Appellant’s PCRA petition and remand this case to the PCRA

court.

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/22/2018

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