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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MICHAEL KERAK,
Appellant No. 2579 EDA 2015
Appeal from the Order entered July 14, 2015
in the Court of Common Pleas of Lehigh County
Criminal Division, at No(s): CP-39-CR-0001091-2012
BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.
JUDGMENT ORDER BY PANELLA, J. FILED MAY 02, 2016
Michael Kerak (“Appellant”) appeals from the order denying Appellant’s
pro se “Motion for Modification/Reconsideration of Sentence (Nunc Pro
Tunc),” and “Motion to Terminate Probation.” We reverse and remand with
instructions.
On May 14, 2012, Appellant entered a guilty plea to Driving Under the
Influence (“DUI”), highest rate of alcohol, second offense. See 75 Pa.C.S.A.
3802(c). That same day, the trial court sentenced Appellant to a term of six
to twenty-three months of incarceration, and a consecutive three-year
probationary term. Appellant filed neither a post-sentence motion nor a
direct appeal. On July 7, 2015, Appellant filed the motions at issue. The trial
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Former Justice specially assigned to the Superior Court.
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court denied relief. In doing so, the court treated the pro se filings as
untimely post-sentence motions, and determined that no extraordinary
circumstances existed to permit their filing nunc pro tunc.1 See Order,
7/14/15, at 1 n.1. This timely appeal follows.2
Within its appellate brief, the Commonwealth aptly concedes that
Appellant’s pro se motions should have been treated as a petition filed
pursuant to the Post Conviction Relief (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
We agree. See generally Commonwealth v. Taylor, 65 A.3d 462 (Pa.
Super. 2013). Moreover, as the filing would constitute Appellant’s first PCRA
petition, and he has in forma pauperis status, Appellant is entitled to the
appointment of counsel. See Pa.R.Crim.P. 904.
Thus, we remand for the appointment of counsel to either file an
amended petition on Appellant’s behalf or to comply with the requirements
to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). See Commonwealth v. Smith, 818 A.2d 494, 500-01 (Pa. 2003)
(concluding that “Rule 904 mandates that an indigent petitioner, whose first
PCRA petition appears untimely, is entitled to the assistance of counsel in
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1
Although Appellant filed two separate motions, the trial court dismissed
them together.
2
After review, we are satisfied that Appellant’s notice of appeal was timely
filed. See generally Commonwealth v. Jones, 700 A.2d 423 (Pa. 2007).
-2-
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order to determine whether any of the exceptions to the [PCRA’s] one-year
time limitation apply”).
Order reversed. Case remanded for proceedings consistent with this
judgment order. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/2/2016
-3-
Com. v. Kerak, M.
Combined Opinion