J-S22020-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
CHARLES WASHINGTON
Appellant No. 2562 EDA 2016
Appeal from the PCRA Order entered July 20, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No: CP-39-CR-0002109-2014
BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*
MEMORANDUM BY STABILE, J.: FILED JULY 16, 2018
Appellant, Charles Washington, appeals from the July 20, 2016 order
entered in the Court of Common Pleas of Lehigh County, denying his first
petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-46. Upon review, we vacate and remand.
The underlying facts are not at issue here. Thus, there is no need to
recite the factual background. We must, however, summarize the relevant
procedural history.
On July 10, 2015, [Appellant] entered pleas of guilty to Criminal
Homicide, Murder of the Third Degree (18 Pa.C.S.A. § 2501(a)),
Robbery (18 Pa.C.S.A. § 3701(a)(1)(i)), and Criminal Conspiracy
to Commit Robbery (18 Pa.C.S.A. § 903(c)). In exchange for the
guilty pleas, the Commonwealth agreed to set [Appellant]’s
minimum sentence at thirty-five (35) years. [Appellant] agreed
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* Retired Senior Judge assigned to the Superior Court.
J-S22020-18
to waive any and all appeal rights. On the same date, [the trial
court] sentenced [Appellant], in compliance with the terms of the
plea agreement, to an aggregate term of state imprisonment of
not less than thirty-five (35) years nor more than eighty (80)
years. Thereafter, on July 19, 2016, in contravention of the plea
agreement, [Appellant] filed a Motion for Post Conviction
Collateral Relief [alleging ineffective assistance of counsel]. [The
PCRA court] denied said motion on July 20, 2016. The within
appeal followed on August 11, 2016.
PCRA Court Opinion, 8/22/16, at 1-2.1
The PCRA court denied Appellant’s first PCRA petition, without
appointing him counsel, because: (i) Appellant “waived his appellate rights,
including the filing of a [PCRA] petition as part of his negotiated plea
agreement,” and (ii) the independent review of plea counsel’s effectiveness
following his guilty plea showed no indicia of ineffectiveness. PCRA Court
Opinion, 8/22/16, at 2.
Appellant argues the PCRA court erred in denying Appellant’s first
timely PCRA petition without appointing him counsel. We agree.
“[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).
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1 Following the filing of the instant appeal, the PCRA court granted Appellant
leave to proceed in forma pauperis and appointed counsel to represent him
in the instant appeal.
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Appellant was entitled to appointment of counsel, prior to disposition of
the petition (his first), regardless of the merits of the same.2 See, e.g.,
Pa.R.Crim.P. 904(C).3 As we noted in Commonwealth v. Kutnyak, 781
A.2d 1259 (Pa. Super. 2001),
[t]he PCRA court may not first evaluate the merits of the petition,
as was done in this case, and then deny the appointment of
counsel because the petition lacks merit. To do so undermines
the very purpose of appointing counsel and thwarts the intent of
the Legislature in providing counsel to indigent petitioners in
collateral proceedings. The issue of whether the petitioner is
entitled to relief is another matter entirely, which is to be
determined after the appointment of counsel and the opportunity
to file an amended petition.
Id. at 1262 (internal citation omitted).
Because the PCRA court erred in not appointing counsel for Appellant,
we are constrained to vacate the order denying Appellant’s first PCRA
petition, and remand the matter to the PCRA court for the appointment of
counsel.
Order vacated. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
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2 The Commonwealth agrees that Appellant was entitled to counsel, and that
the PCRA court erred in not appointing one prior to dismissing Appellant’s
first PCRA petition. Commonwealth’s Brief at 5-8.
3 Rule 904(C) provides: “Except as provided in paragraph (H) [pertaining to
death penalty cases], 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 post-conviction collateral relief.” Pa.R.Crim.P. 904(C).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/18
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