J-S63027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BARRY GIBBS,
Appellant No. 3205 EDA 2015
Appeal from the PCRA Order October 7, 2015
In the Court of Common Pleas of Pike County
Criminal Division at No(s): CP-52-CR-0000089-1984
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and FITZGERALD,* JJ.
JUDGMENT ORDER BY SHOGAN, J.: FILED OCTOBER 07, 2016
Barry Gibbs (“Appellant”) appeals pro se from the order dismissing as
untimely his pro se first petition for relief filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We vacate and
remand.
The PCRA court dismissed Appellant’s PCRA petition as untimely and
maintained that position in its Pa.R.A.P. 1925(a) opinion. PCRA Court Order,
10/7/15; PCRA Court Opinion, 12/9/15, at 4. However, the Commonwealth
submits that a remand is necessary for the appointment of counsel:
The Commonwealth is constrained to agree with
[Appellant] that the [PCRA] court below inadvertently committed
a reversible error of law when it disposed of the PCRA petition
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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without first appointing counsel to assist [Appellant] in the
prosecution of his collateral attack claims, which would
necessarily include the possibility of filing a counseled amended
PCRA petition. [Appellant] is serving a life imprisonment
sentence in state prison and is therefore indigent. The
underlying claims at issue constitute [Appellant’s] first PCRA
petition filed since he was convicted by a jury and sentenced for
murder in 2005.
Although the [PCRA] court is correct that [Appellant’s]
claims filed in 2015 are facially untimely and that [Appellant] has
failed in his petition to articulate the applicability of an
enumerated statutory exception to the time bar, the Supreme
Court and this Court have made it abundantly clear that a
petitioner in [Appellant’s] shoes has an absolute right to the
assistance of counsel at this juncture -- to address the issue of
timeliness and whether a statutory exception to the time bar
applies, to address other procedural issues, and to address the
underlying merits of his claims.
Accordingly, this Court must vacate the disposition below
and remand the case back to the [PCRA] court with instructions
to appoint counsel and allow counsel to proceed in accordance
with the governing law.
Commonwealth’s Brief at 10–11 (internal citations omitted).
Pennsylvania law is clear:
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 petitioner’s first petition for post
conviction relief.
Commonwealth v. Smith, 121 A.3d 1049, 1053 (Pa. Super. 2015)
(citation omitted), appeal denied, 136 A.3d 981 (Pa. 2016); Pa.R.Crim.P.
904(C). This right exists even in the face of a patently untimely PCRA
petition. See Commonwealth v. Smith, 818 A.2d 494, 500–501 (Pa.
2003) (“[A]n indigent petitioner, whose first PCRA petition appears untimely,
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is entitled to the assistance of counsel in order to determine whether any of
the exceptions to the one-year time limitation apply.”).
Upon review, the record confirms that Appellant filed a pro se first
PCRA petition in which he asserted his indigence and requested counsel.
PCRA Petition, 9/13/15, at §§ 15, 16. Accordingly, we commend the
Commonwealth on its candor and agree that the PCRA court erred in
dismissing Appellant’s petition without appointing counsel.1
Order vacated; case remanded for appointment of counsel.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2016
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1
We express no opinion on the merits of the claims raised in Appellant’s
petition.
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