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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DANNY MARSTELLAR,
Appellant No. 2012 EDA 2015
Appeal from the Order Entered June 3, 2015
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0003957-2014
BEFORE: MUNDY, OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 18, 2016
Appellant, Danny Marstellar, appeals from the order entered on June
3, 2015. We vacate the trial court’s order and remand.
On February 17, 2015, Appellant pleaded guilty to burglary. 1 That
same day, the trial court sentenced Appellant to serve a term of 12 to 60
months in prison. Appellant did not file a timely post-sentence motion or a
timely notice of appeal to this Court and, on April 8, 2015, the trial court
granted Appellant’s counsel’s motion for leave to withdraw appearance. Trial
Court Order, 4/8/15, at 1.
On May 1, 2015 – which was after Appellant’s judgment of sentence
became final – Appellant filed a pro se “Motion to Modify and Reduce
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1
18 Pa.C.S.A. § 3502(a)(4).
*Retired Senior Judge assigned to the Superior Court.
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Sentence.” The trial court did not appoint counsel to represent Appellant.
The trial court then denied Appellant’s pro se motion on June 3, 2015,
reasoning that it was an untimely-filed post-sentence motion from the
judgment of sentence. Trial Court Order, 5/1/15, at 1.
The trial court appointed counsel to represent Appellant on June 22,
2015 and appointed counsel filed a timely notice of appeal on July 2, 2015.
Appellant raises the following claim to this Court:
Whether the trial court committed legal error by denying
Appellant’s appeal where there was an issue of credit for
time served which is never an untimely claim and where
claims should have been treated as a timely filed PCRA?
Appellant’s Brief at 4 (some internal capitalization omitted). 2
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2
We note that, within Appellant’s counseled Pennsylvania Rule of Appellate
Procedure 1925(b) statement, Appellant did not claim that the trial court
erred when it failed to treat his “Motion to Modify and Reduce Sentence” as a
timely PCRA petition. Rather, within his counseled Rule 1925(b) statement,
Appellant raised the following claims:
[1.] The [trial] court manifestly abused its discretion by
denying [Appellant’s] petition to reinstate appellate rights in
concluding that [Appellant] fully understood what his
agreement with the Commonwealth entailed in regards to
his sentence and appellate rights.
[2.] The [trial] court manifestly abused its discretion and
committed an error of law by denying [Appellant’s] Motion
to Modify and Reduce Sentence, where the sentence was
not the agreed upon sentence at the time of the plea
agreement.
[3.] The [trial] court manifestly abused its discretion and
committed an error of law by denying [Appellant’s Motion to
(Footnote Continued Next Page)
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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 to Modify and Reduce Sentence.” 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 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
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(Footnote Continued)
Modify and Reduce Sentence], where [Appellant] did not
receive credit for time served.
[4.] The [trial] court manifestly abused its discretion and
committed an error of law by denying [Appellant’s] Motion
to Modify and Reduce Sentence, where such modifications
can be made following the [30-]day time period and
therefore, [the] motion should not be deemed untimely.
Appellant’s Rule 1925(b) Statement, 7/20/15, at 2 (some internal
capitalization omitted).
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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). Here, while the trial court appointed counsel to
represent Appellant on appeal, the trial court only did so after it denied his
petition – and the court did not appoint counsel to represent Appellant
during the underlying proceedings. This constitutes error, as it forced
Appellant to litigate the entirety of his first PCRA petition without the aid of
an attorney.
Moreover, although Appellant did not properly 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).
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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
order dismissing Appellant’s PCRA petition and remand this case to the trial
court.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2016
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