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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID RAY BISH,
Appellant No. 220 WDA 2015
Appeal from the Order January 19, 2015
in the Court of Common Pleas of Jefferson County
Criminal Division at No.: CP-33-CR-0000210-2009
BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 30, 2015
Appellant, David Ray Bish, appeals pro se from the order denying his
motion for reconsideration of sentence. Because we conclude that
Appellant’s request for relief should have been treated as a first petition filed
pursuant to the Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546, we
vacate and remand for appointment of counsel.
The background facts and procedure of this case are as follows. On
June 30, 2009, the Commonwealth filed an information against Appellant
charging him with possession with intent to deliver (PWID)1 250 grams of
methamphetamine, and related charges. On February 2, 2011, Appellant
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
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pleaded guilty to PWID, and the Commonwealth nolle prossed the remaining
charges. On February 3, 2011, the court sentenced Appellant to a
mandatory term of not less than five nor more than ten years’ incarceration,
plus fees and costs. Appellant did not file post-trial motions or a direct
appeal, and his judgment of sentence became final on March 5, 2011. See
Pa.R.Crim.P. 720(A)(3); 42 Pa.C.S.A. § 9545(b)(3). Plea counsel filed a
motion to withdraw his appearance, which the court granted on March 7,
2011.
Nearly four years later, on January 14, 2015, Appellant filed a pro se
motion for reconsideration of sentence on the basis of Alleyne v. U.S., 133
S. Ct. 2151 (2013). On January 19, 2015, the court denied the motion as
untimely. Appellant timely appealed on February 4, 2015, and filed a timely
Rule 1925(b) statement on February 25, 2015 pursuant to the court’s order.
See Rule 1925(b). The court filed an opinion on March 9, 2015. See
Pa.R.A.P. 1925(a).
Appellant raises two questions for our review: “1. Did the trial court
abuse its discretion by dismissing Appellant’s motion for reconsideration of
sentence in light of recent Superior Court and Supreme Court decisions?”
and “2. Did the trial court impose an unconstitutional mandatory minimum
sentence?” (Appellant’s Brief, at 4 (internal quotation marks and most
capitalization omitted)).
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Before we reach the merits of Appellant’s issues, we must determine
whether Appellant’s request for relief should be considered an untimely post-
sentence motion or a PCRA petition.
It is well-settled that:
. . . Despite the ten-day time limit for post-sentence
motions, there are occasions when such motions may be treated
as petitions under the [PCRA]. The content of the motion—just
exactly what is pled and requested therein—is relevant to
deciding whether to treat the motion as a collateral petition.
See Commonwealth v. Lutz, 788 A.2d 993, 996 n. 7 (Pa.
Super. 2001) (holding that, generally, a filing that raises issues
cognizable under the PCRA will be considered a PCRA petition
while a filing requesting relief outside the PCRA will not be so
treated).
Commonwealth v. Wrecks, 931 A.2d 717, 720 (Pa. Super. 2007) (one
citation omitted); see also Commonwealth v. Taylor, 65 A.3d 462, 465-
66 (Pa. Super. 2013) (“[T]he PCRA is intended to be the sole means of
achieving post-conviction relief[]” and “any petition filed after the judgment
of sentence becomes final will be treated as a PCRA petition.”) (citations
omitted).
Here, Appellant filed his motion nearly four years after the imposition
of his judgment of sentence. Therefore, it is well beyond the ten-day time
limit for filing a post-sentence motion. Appellant’s motion raised an illegal
sentencing issue based on Alleyne. (See Motion for Reconsideration of
Sentence, 1/14/15, at unnumbered page 1); see also Commonwealth v.
Watley, 81 A.3d 108, 117-18 (Pa. Super. 2013), appeal denied, 95 A.3d
277 (Pa. 2014) (“Alleyne . . . implicate[s] Pennsylvania’s legality of
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sentencing construct”). Claims of an illegal sentence are cognizable under
the PCRA. See 42 Pa.C.S.A. § 9542 (“This subchapter provides for an action
by which persons . . . serving illegal sentences may obtain collateral relief.”).
Therefore, Appellant’s motion should have been treated as a first PCRA
petition.
Our standard of review for the denial of PCRA relief is “whether the
court’s findings are supported by the record and whether the order is free of
legal error.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.
Super. 2001) (citation omitted).
We observe that:
an unrepresented petitioner who is indigent has a right to court-
appointed counsel to represent him on his first PCRA petition.
The denial of PCRA relief cannot stand unless the petitioner was
afforded the assistance of counsel. The PCRA court may not first
evaluate the merits of the petition, as was done in this case, and
then [not appoint] counsel because the petition lacks merit. To
do so undermines the very purpose of appointing counsel and
thwarts the intent of the Legislature in providing counsel to
indigent petitioners in collateral proceedings. The issue of
whether the petitioner is entitled to relief is another matter
entirely, which is to be determined after the appointment of
counsel and the opportunity to file an amended petition.
Id. at 1262 (citations and quotation marks omitted).
Here, the court did not appoint PCRA counsel, and instead reviewed
the motion on its merits, finding that, if it was in fact a PCRA petition, it was
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untimely pursuant to 42 Pa.C.S.A. § 9545(b)(1),2 and that Appellant failed
to plead and prove a timeliness exception. (See Trial Court Opinion,
3/09/15, 1-2).3 We are constrained to conclude that this was error. Before
considering the merits of Appellant’s pro se first PCRA petition, the court
should have appointed PCRA counsel. See Kutnyak, supra at 1262
(Holding that, “as this is [a]ppellant’s first PCRA petition, he is entitled to
counsel to represent him despite any apparent untimeliness of the petition
or the apparent non-cognizability of the claims presented.”).
Hence, we vacate and remand for the appointment of counsel and
proceedings consistent with this decision.
Order vacated. Case remanded. Jurisdiction relinquished.
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2
Section 9545(b) of the PCRA provides, in pertinent part: “Any petition
under this subchapter . . . shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the petitioner
proves” the applicability of one of the enumerated timeliness exceptions. 42
Pa.C.S.A. § 9545(b)(1).
3
The court also found that, if it considered Appellant’s request for relief a
post-trial motion, it lacked jurisdiction to decide it pursuant to 42 Pa.C.S.A.
§ 5505. (See Trial Ct. Op., at 1).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2015
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