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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LARRY MILLER
Appellant No. 1403 EDA 2016
Appeal from the PCRA Order April 15, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001474-2008
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
JUDGMENT ORDER BY LAZARUS, J.: FILED APRIL 06, 2017
Larry Miller appeals from the order, entered in the Court of Common
Pleas of Philadelphia County, dismissing his petition as untimely under the
Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46. On March 9,
2009, Miller entered a negotiated guilty plea to third-degree murder' and
possession of an instrument of crime.2 The Honorable George W. Overton
sentenced Miller to an aggregate term of imprisonment of fifteen to thirty
years. Miller did not file a direct appeal. On August 11, 2015, Miller filed his
first PCRA petition, pro se, which the PCRA court dismissed as untimely.
* Former Justice specially assigned to the Superior Court.
' 18 Pa.C.S.A. § 2502(c).
2 18 Pa.C.S.A. § 907(a).
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Pennsylvania Rule of Criminal Procedure 904 states: "[W]hen 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." The Comment to Rule 904 reinforces the rule's mandatory
language, adding "that counsel be appointed in every case in which a
defendant has filed a petition for post -conviction collateral relief for the first
time and is unable to afford counsel or otherwise procure counsel."
Pa.R.Crim.P. 904, cmt.; see Commonwealth v. Evans, 866 A.2d 442 (Pa.
Super. 2005).
Here, our review of the certified record reflects that Miller filed his first
petition for PCRA relief acting pro se, averred a lack of resources to hire an
attorney, and requested the PCRA court to appoint counsel to represent him.
PCRA Petition, 8/11/15, at 7. Because the PCRA court did not appoint
counsel to represent Miller in this first PCRA petition, we are constrained,
regardless of the apparent untimeliness of the petition, to vacate the
dismissal order. We remand this case to the PCRA court to appoint counsel
to represent Miller (should Miller be adjudged indigent) and for further
proceedings as are appropriate under the PCRA. Pa.R.Crim.P. 904(C);
Evans, 866 A.2d at 444-46.
Order vacated. Case remanded. Jurisdiction relinquished.
-2
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Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 4/6/2017
-3
Com. v. Miller, L.
Combined Opinion