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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
PAUL JOHN KASPAR, JR.
Appellant No. 2097 MDA 2015
Appeal from the PCRA Order November 5, 2015
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0000462-2010;
CP-01-CR-0000969-2010
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED JULY 06, 2016
Appellant, Paul John Kaspar, Jr., appeals from the order entered in the
Adams County Court of Common Pleas, which denied his pro se first petition
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We vacate and
remand for further proceedings.
On June 23, 2011, a jury convicted Appellant of rape, statutory sexual
assault, sexual assault, aggravated indecent assault, unlawful contact with a
minor, corruption of minors, and indecent assault. On September 29, 2011,
the trial court imposed an aggregate sentence of fifteen (15) to thirty (30)
years’ incarceration. This Court affirmed the judgment of sentence on June
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1
42 Pa.C.S.A. §§ 9541-9546.
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25, 2012. On October 19, 2015, Appellant pro se filed his first PCRA
petition. The PCRA court denied the petition without a hearing on November
5, 2015. Appellant timely filed a pro se notice of appeal on December 4,
2015. On December 14, 2015, the court appointed counsel for the appeal
and ordered Appellant to file a Pa.R.A.P. 1925(b) statement. Appellant filed
a timely counseled Rule 1925(b) statement on December 28, 2015.
Appellant’s pro se status throughout the proceedings of his first PCRA
petition presents a question of whether Appellant was effectively deprived of
his right to counsel. An indigent defendant is entitled to appointment of
counsel for his first PCRA petition. Commonwealth v. Smith, 572 Pa. 572,
818 A.2d 494 (2003).
While a PCRA petitioner does not have a Sixth Amendment
right to assistance of counsel during collateral review, this
Commonwealth, by way of procedural rule, provides for
the appointment of counsel during a prisoner’s first
petition for post conviction relief. Pursuant to our
procedural rule, not only does a PCRA petitioner have the
“right” to counsel, but also he has the “right” to effective
assistance of counsel. The guidance and representation of
an attorney during collateral review should assure that
meritorious legal issues are recognized and addressed, and
that meritless claims are foregone.
Commonwealth v. Haag, 570 Pa. 289, 307-08, 809 A.2d 271, 282-83
(2002), cert. denied, 539 U.S. 918, 123 S.Ct. 2277, 156 L.Ed.2d 136 (2003)
(internal citations omitted); Pa.R.Crim.P. 904. This rule-based right to
counsel persists throughout the PCRA proceedings, even if the petition is
untimely or the petition does not present a cognizable claim. Smith, supra.
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Instantly, Appellant’s current PCRA petition is his first. Appellant filed
the petition pro se and the record confirms Appellant is indigent. Therefore,
Appellant was entitled to assistance of counsel to litigate his first PCRA
petition, regardless of the petition’s facial untimeliness. See id.; Haag,
supra; 42 Pa.C.S.A. 9545(b)(1). Appellant requested appointment of
counsel in his PCRA petition. The court, however, failed to appoint counsel
for Appellant before it denied the petition. The court’s subsequent
appointment of counsel for appeal did not remedy that error. Therefore, we
vacate the order denying Appellant PCRA relief and remand for counsel to
review Appellant’s PCRA petition and file an amended petition if necessary,
raising any exceptions to the PCRA timeliness requirements and appropriate
claims for relief.2 Accordingly, we vacate and remand for further
proceedings.
Order vacated; case remanded with instructions. Jurisdiction is
relinquished.
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2
Appellant initially sought collateral relief pursuant to the United States
Supreme Court’s decision in Alleyne v. United States, ___ U.S. ___, 133
S.Ct. 2151, 186 L.Ed 314 (2013). This Court is currently reviewing en banc
the viability of an Alleyne-based sentencing challenge in the context of a
timely filed PCRA petition. Nevertheless, Alleyne does not qualify as an
exception to the PCRA time bar under Section 9545(b)(1)(iii). See
Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2016
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