J-A27015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHANE HACKWORTH,
Appellant No. 752 WDA 2017
Appeal from the Order Entered May 11, 2017
In the Court of Common Pleas of Erie County
Criminal Division at No(s): No. CP-25-CR-0001441-2008
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 3, 2018
Appellant, Shane Hackworth, appeals pro se from the trial court’s May
11, 2017 order denying his “Motion for Reconsideration of Sentence Nunc
Pro Tunc.” After careful consideration, we vacate the court’s order and
remand for further proceedings consistent with this decision.
The facts of Appellant’s underlying convictions are not necessary to
our disposition of this appeal. The trial court briefly summarized the
procedural history of Appellant’s case, as follows:
Appellant pled guilty to the following charges on July 24, 2008:
Count One: Defiant Trespass, 18 Pa.C.S.[] § 3503(b)(1)(v);
Count Two: Possession of Marijuana, 35 Pa.C.S.[] § 780-
113(a)(31); and
Count Three: Possession of Drug Paraphernalia, 35 Pa.C.S.[] §
780-113(a)(32).
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Appellant applied for admission into the Erie County Drug
Treatment Court. He was admitted into Drug Treatment Court
and sentenced on July 24, 2008. At Count One, Appellant was
sentenced to a probation period of 3 years consecutive to Docket
Number 3068 of 2007. At Count Two, Appellant was sentenced
to a probation period of 30 days, consecutive to Count One. At
Count Three, Appellant was sentenced to a probation period of
12 months, concurrent to Count One.
On July 23, 2009[,] Appellant’s probation was revoked.
Appellant was re-sentenced to probation again.
Appellant did not file any post-sentence motions in the
ten[-]day periods following either his original sentencing or his
revocation and re-sentencing. His first filing at this docket was
on May 10, 2017, with the present Motion for Reconsideration of
Sentence Nunc Pro Tunc. After this Motion was denied as
untimely, Appellant filed a Notice of Appeal on May 11, 2017.
Trial Court Opinion (TCO), 1/7/17, at 1-2.
Appellant timely complied with the trial court’s order to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. The court
issued its Rule 1925(a) opinion on June 7, 2017. Therein, the court
construes Appellant’s “Motion for Reconsideration of Sentence Nunc Pro
Tunc” as an untimely post-sentence motion, and/or an untimely “attempt to
appeal his sentence … over seven years after the deadline.” Id. at 2.
Accordingly, the court deems all of Appellant’s issues waived. Id.
We need not address the issues raised by Appellant herein, as the
record before us makes it patently clear that the trial court erred by not
treating his pro se “Motion for Reconsideration of Sentence Nunc Pro Tunc”
as his first petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. See Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.
Super. 2013) (“[A]ll motions filed after a judgment of sentence is final are to
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be construed as PCRA petitions.”) (citing Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa. Super. 2007)). Notably, in that motion, Appellant
asserted, inter alia, that his trial counsel acted ineffectively, and that he has
discovered new evidence pertinent to his case. See, e.g., Motion for
Reconsideration of Sentence Nunc Pro Tunc, 5/10/17, at 3 (unnumbered)
(“By these issues alone (and others) counsels [sic] failure to seek correction,
file pre[-]trial motions or argue these facts, no lawyer that was competent
would have failed to act to protect the Petitioner [sic] rights.”). Such claims
are cognizable under the PCRA. See 42 Pa.C.S. § 9543(a)(2)(ii), (vi).
Therefore, the trial court should have treated Appellant’s motion as a
PCRA petition, and ascertained if he is entitled to court-appointed counsel
under Pa.R.Crim.P. 904(C) (requiring that counsel be appointed “when an
unrepresented defendant satisfies the judge that [he] is unable to afford or
otherwise procure counsel”).1 See also Commonwealth v. Albrecht, 720
A.2d 693 (Pa. 1998) (holding that an unrepresented petitioner who is
indigent has the right to court-appointed counsel to represent him on his
first PCRA petition). Accordingly, we vacate the trial court’s May 11, 2017
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1 Appellant may be entitled to counsel, even though his PCRA petition
appears untimely on its face. 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 order to determine whether any of the
exceptions to the one-year time limitation apply”).
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order, as it effectively denied Appellant’s first PCRA petition without
affording him his right to counsel. See Commonwealth v. Kutnyak, 781
A.2d 1259, 1262 (Pa. Super. 2001) (“The denial of PCRA relief cannot stand
unless the petitioner was afforded the assistance of counsel.”) (citation
omitted). We remand for the court to treat Appellant’s May 10, 2017 motion
as a PCRA petition, and appoint him counsel if he is so entitled under Rule
904(C).
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2017
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Com. v. Hackworth, S.
Combined Opinion