J-S60024-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAQUILLE MCCORD, :
:
Appellant : No. 182 WDA 2017
Appeal from the PCRA Order January 5, 2017
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0001315-2012
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
JUDGMENT ORDER BY DUBOW, J.: FILED NOVEMBER 29, 2017
Appellant, Shaquille McCord, appeals pro se from the January 5, 2017
Order denying as untimely his first pro se Petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. The PCRA court
failed to appoint counsel as required by Pa.R.Crim.P. 904(C) and, therefore,
we are constrained to vacate and remand for the appointment of PCRA
counsel.
On September 3, 2013, the trial court sentenced Appellant to a term of
seven to fourteen years’ incarceration following his guilty plea to Attempted
Criminal Homicide. Appellant filed Post-Sentence Motions, which the trial
court denied on September 12, 2013. Appellant did not file a Notice of
Appeal.
On December 13, 2016, Appellant filed the instant pro se PCRA
Petition, his first, requesting the reinstatement of his appellate rights nunc
____________________________________
* Former Justice specially assigned to the Superior Court.
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pro tunc due to ineffective assistance of counsel and violations of his
constitutional rights. In his Petition, Appellant asserted that he is without
the financial resources to obtain a lawyer and requested that the court
appoint a lawyer to represent him. The PCRA court did not grant Appellant’s
request.
On December 13, 2016, the PCRA court issued notice of its intent to
dismiss the PCRA Petition without a hearing pursuant to Pa.R.Crim.P.
907(1), stating that the Petition was untimely. On December 27, 2016,
Appellant filed a pro se Response. On January 5, 2017, the PCRA court
entered its Order dismissing Appellant’s pro se PCRA Petition as untimely.
Appellant filed a timely pro se Notice of Appeal.
Appellant concedes that his Petition was facially untimely, but avers
that the PCRA court should have appointed counsel to aid Appellant in his
attempt to establish an exception to the time-bar. Appellant’s Brief at 6.
We agree.
It is well-settled that indigent petitioners are entitled to representation
by counsel for a first petition filed under the PCRA. See Pa.R.Crim.P. 904(C)
(stating that when an unrepresented defendant is unable to afford counsel,
the judge shall appoint counsel to represent the defendant on the
defendant’s first petition for PCRA relief). “[T]he denial of PCRA relief to an
indigent first-time petitioner cannot stand unless the petitioner was afforded
the assistance of counsel.” Commonwealth v. Price, 876 A.2d 988, 993
(Pa. Super. 2005) (citation and quotation omitted). Further, an indigent
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first-time petitioner “is entitled to counsel to represent him despite any
apparent untimeliness of the petition or the apparent non-cognizability of the
claims presented.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1262 (Pa.
Super. 2001) (citation omitted). Finally, “we will not hold an indigent pro
se petitioner responsible for presenting a cognizable claim for relief until,
pursuant to Rule 904(a), petitioner has been given the opportunity to be
represented by appointed counsel.” Commonwealth v. Evans, 866 A.2d
442, 445 (Pa. Super. 2005).
For the foregoing reasons, we are constrained to vacate the PCRA
court’s Order denying Appellant’s PCRA Petition as untimely. We remand
this case for the court to appoint PCRA counsel pursuant to Pa.R.Crim.P.
904(C), and for further proceedings appropriate under the PCRA.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2017
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Com. v. McCord, S.
Combined Opinion