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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
GENE LORENZO DAVIS                         :
         Appellant                         :
                                           :     No. 406 MDA 2016

               Appeal from the Order Entered February 10, 2016
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0002831-2009


BEFORE: OTT, DUBOW AND PLATT, JJ.*

MEMORANDUM BY DUBOW, J.:                         FILED DECEMBER 13, 2016

        Appellant, Gene Lorenzo Davis, appeals pro se from the February 10,

2016 Order denying as untimely his Motion for Permission to Appeal

Discretionary Aspects of Sentence (“Petition”).1 After careful review, we find

that the trial court should have considered Appellant’s Petition to be his first

Petition for Post-Conviction Relief under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541–9546; and, thus, should have appointed

counsel. We, therefore, vacate and remand with instructions.

        We summarize the relevant factual and procedural history as follows.

On October 7, 2010, Appellant pled guilty to one count of Third-Degree


*
    Retired Senior Judge Assigned to the Superior Court.
1
  As discussed, infra, the lower court should have considered this Motion
under the PCRA. As such, we shall hereinafter refer to it as Petition.
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Murder pursuant to an open plea agreement. On November 22, 2010, the

trial court sentenced Appellant to 15 to 40 years of incarceration.

        On February 10, 2012, this Court affirmed Appellant’s Judgment of

Sentence. The Supreme Court denied allowance of appeal on September 6,

2012.

        On January 15, 2016, Appellant filed the instant Petition pro se. On

February 10, 2016, the lower court denied the Petition as an untimely post-

sentence motion without conducting a hearing on the Petition, appointing

counsel, or conducting a hearing pursuant to Commonwealth v. Grazier,

713 A.2d 81 (Pa. 1998). On March 2, 2016, Appellant timely filed a Notice

of Appeal.

        On April 21, 2016, perhaps realizing its error, the lower court held a

Grazier hearing wherein it found that Appellant waived his right to counsel

“for appeal” and could proceed pro se.

        Appellant and the trial court both complied with Pa.R.A.P. 1925.

        We begin by noting that the trial court erroneously analyzed and

dismissed Appellant’s Petition as a Motion to Modify Sentence under

Pennsylvania Rule of Criminal Procedure 720(a).2 Trial Court Opinion, filed

6/24/16, at 3 (unpaginated). However, Appellant’s pro se Petition, in spite

of being titled as a discretionary sentencing challenge, alleged that the

sentence imposed was illegal and that trial counsel “absolutely lied” to

2
    Pa.R.Crim.P. 720(a) (pertaining to post-sentence motions).



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Appellant and forced him into a plea agreement. Petition, filed 1/15/16, at

2, 5.

        Challenges to the legality of sentence and the effective assistance of

trial counsel are cognizable under the PCRA.             See Commonwealth v.

Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001) (holding that, regardless

of what a defendant titles his petition, “the PCRA is the exclusive vehicle for

obtaining     post-conviction      collateral   relief.”);   Commonwealth      v.

Hockenberry, 689 A.2d 283, 288 (Pa. Super. 1997) (finding that an

untimely motion to modify sentence that challenges the legality of a

sentence should be treated as a PCRA Petition); Commonwealth v. Grant,

813 A.2d 726, 738 (Pa. 2002) (holding that “as a general rule, a petitioner

should wait to raise claims of ineffective assistance of counsel until collateral

review.”). Accordingly, the lower court should have treated the Petition as

Appellant’s first PCRA Petition.

        Given the trial court’s failure to properly consider Appellant’s Petition

under the PCRA, “we could vacate and remand on this basis alone, as this

conclusion by the court is in error.” Kutnyak, 781 A.2d at 1262. However,

we further conclude that the lower court erred in not appointing counsel to

Appellant prior to dismissing his Petition.

        This Court has previously 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



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the PCRA court to correct that mistake.” Commonwealth v. Stossel, 17

A.3d 1286, 1290 (Pa. Super. 2011).

      Defendants have a general rule-based right to the assistance of

counsel   for   their   first   PCRA   Petition.    Pa.R.Crim.P.   904(C).   See

Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009) (en

banc) (stating, “a criminal defendant has a right to representation of counsel

for purposes of litigating a first PCRA petition through the entire appellate

process.”).     “The indigent petitioner’s right to counsel must be honored

regardless of the merits of his underlying claims, even where those claims

were previously addressed on direct appeal, so long as the petition in

question is his first.”    Commonwealth v. Powell, 787 A.2d 1017, 1019

(Pa. Super. 2001) (citation omitted). Moreover, this right persists even if a

first PCRA petition is untimely on its face.       See, e.g., Commonwealth v.

Wiley, 966 A.2d 1153 (Pa. Super. 2009) (remanding for additional

proceedings despite finding that petition was facially untimely where counsel

failed to meaningfully participate in earlier PCRA proceedings).

      When appointed, PCRA counsel’s duty is to (1) amend the petitioner’s

pro se Petition and present the petitioner’s claims in acceptable legal terms,

or (2) certify that the claims lack merit by complying with the mandates of

Turner/Finley.3     “If appointed counsel fails to take either of these steps,


3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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our courts have not hesitated to find that the petition was effectively

uncounseled.” Powell, 787 A.2d at 1019 (citation omitted).

      In the instant case, Appellant was denied his right to “a single,

counseled petition.” Commonwealth v. Williams, 828 A.2d 981, 990 (Pa.

2003). It is not enough that the trial court held a Grazier hearing some two

months after denying Appellant’s Petition. In fact, as the lower court’s Order

reflects, that Grazier hearing could only determine whether Appellant

waived his right to counsel during the appeal of the denial of his Petition.4 It

could not retroactively determine whether Appellant waived the right to

counsel’s assistance in filing a Petition which the PCRA court had already

denied.

      We, therefore, vacate the Order denying relief and remand with

instructions to consider the Petition under the PCRA.       The lower court is

instructed to appoint counsel to assist Appellant in filing an amended PCRA

Petition.   Once appointed, counsel may then either file an amended PCRA

Petition or certify that the claims lack merit by complying with the mandates

of Turner/Finley.

      Order vacated. Case remanded. Jurisdiction relinquished.




4
  See Order, filed 4/21/16 (finding Appellant “waives right to counsel for
appeal and wishes to proceed pro se”).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/13/2016




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