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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
BLAISE P. TUNSTALL
Appellant No. 1668 WDA 2015
Appeal from the PCRA Order September 23, 2015
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0000145-2013
BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.
JUDGMENT ORDER BY LAZARUS, J.: FILED MAY 26, 2016
Blaise Tunstall appeals from the order of the Court of Common Pleas of
Mercer County that dismissed his petition filed pursuant to the Post-
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We vacate the
order and remand for appointment of counsel.
Tunstall pled guilty to aggravated indecent assault on July 2, 2013.
On November 21, 2013, the court imposed a sentence of five to ten years’
incarceration, based on the mandatory minimum sentencing provisions of 42
Pa.C.S. § 9718(a) (sentences for offenses against infant persons). Tunstall
did not file a direct appeal. Accordingly, for purposes of the PCRA, his
judgment of sentence became final on December 21, 2013, when the period
in which to file a notice of appeal expired. See Pa.R.A.P. 903(a).
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On August 24, 2015, Tunstall, acting pro se, filed a first PCRA petition
challenging the legality of his sentence and raising an exception to the one-
year time bar for claims under the PCRA. See 42 Pa.C.S. § 9545(b).
On August 31, 2015, without appointing counsel, the court issued a
notice of intent to dismiss pursuant to Pa.R.Crim.P. 907. The court
dismissed the petition on September 23, 2015, and this appeal followed.
“When an unrepresented defendant satisfies the judge that the
defendant is unable to afford or otherwise procure counsel, the judge shall
appoint counsel to represent the defendant on the defendant’s first petition
for [PCRA] relief.” Pa.R.Crim.P. 940(C). “The denial of PCRA relief cannot
stand unless the petitioner was afforded the assistance of counsel. An
indigent petitioner is entitled to appointment of counsel on his first PCRA
petition, even where the petition appears untimely on its face.”
Commonwealth v. Perez, 799 A.2d 848, 851 (Pa. Super. 2002) (quotation
and citations omitted).
Accordingly, we remand this matter to the Court of Common Pleas of
Mercer County to determine if Tunstall is indigent, and if so, to appoint
counsel pursuant to Pa.R.Crim.P. 904.1
Order vacated. Case remanded for further proceedings consistent with
this order. Jurisdiction relinquished.
____________________________________________
1
We note that on October 20, 2015, the court granted Tunstall’s application
for leave to appeal in forma pauperis.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2016
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