J-S60020-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHANE CODY HACKWORTH :
:
Appellant : No. 133 WDA 2017
Appeal from the Order December 13, 2016
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003068-2007
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHANE C. HACKWORTH :
:
Appellant : No. 403 WDA 2017
Appeal from the Order January 3, 2017
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001442-2008
BEFORE: OLSON, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 13, 2017
Appellant, Shane Cody Hackworth, appeals from the December 13,
2016 and January 3, 2017 Orders denying his pro se Motions for
Reconsideration of Sentence following the July 23, 2009 imposition of a
Judgment of Sentence of an aggregate term of 19 to 96 months’
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S60020-17
incarceration.1 After careful review, we conclude that the trial court should
have considered Appellant’s pro se Motions for Reconsideration of Sentence
Nunc Pro Tunc as Petitions for Post-Conviction Relief under the Post
Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546; and, thus, should have
appointed counsel. We, therefore vacate, and remand with instructions.
On July 24, 2008, Appellant entered a guilty plea to charges at two
separate criminal dockets2 of two counts of Possession with Intent to Deliver
LSD and Criminal Conspiracy, and one count each of Possession of
Marijuana, Possession with Intent to Deliver Marijuana, and Possession of
Drug Paraphernalia.3 The court sentenced Appellant that day to an
aggregate term of 16 years of probation.
On July 9, 2009, Appellant entered a guilty plea to two additional drug
charges, resulting in the violation of the terms of his probation. Thus, on
____________________________________________
1
Appellant’s counsel filed a Petition to Withdraw as Counsel and a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
2
It appears that the trial court consolidated these cases for purposes of
entry of the guilty plea, sentencing, and, later, sentencing following
revocation of probation.
3
Specifically, the Commonwealth charged Appellant at Docket No. 3068 of
2007 with two counts of Possession with Intent to Deliver LSD, and Criminal
Conspiracy. See 35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 903. The
Commonwealth charged Appellant at Docket No. 1442 of 2008 with
Possession of Marijuana, Possession with Intent to Deliver Marijuana, and
Possession of Drug Paraphernalia. See 35 P.S. §§ 780-113(a)(16), (30),
and (32).
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July 23, 2009, the court sentenced Appellant to an aggregate term of 19 to
96 months’ incarceration, followed by 12 months’ probation.
Appellant did not file a Post-Sentence Motion following the imposition
of his revocation sentence and did not file a timely direct appeal. Rather, on
December 8, 2006, Appellant filed a pro se Motion for Reconsideration Nunc
Pro Tunc at Docket Number 3086 of 2007. On December 22, 2016,
Appellant filed a pro se Motion for Reconsideration of Sentence Nunc Pro
Tunc at Docket Number 1442 of 2008. In both Motions, Appellant
challenged the effectiveness of his trial counsel, and averred that the trial
court erred in not merging his charges.
On December 13, 2016, and January 3, 2017, the trial court entered
Orders denying Appellant’s Motions for Reconsideration as untimely without
conducting a hearing on the Motions, appointing counsel, or conducting a
hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
Appellant timely appealed pro se from these Orders.4
On March 17, 2017, and March 23, 2017, Appellant filed Motions for
Appointment of Counsel, following which this Court remanded this case for
the trial court to determine “whether Appellant is entitled to the appointment
of counsel.” Order, 3/24/17, Docket Nos. 403 WDA 2017 and 133 WDA
2017.
____________________________________________
4
Appellant and the trial court have complied with Pa.R.A.P. 1925.
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On March 27, 2017, the trial court appointed counsel and gave counsel
60 days to file an amended Petition “pursuant to the PCRA.” Trial Ct. Order,
3/27/17. The next day, however, the court inexplicably struck that portion
of the Order referring to the PCRA. Trial Ct. Order, 3/28/17.
We begin by noting that the lower court failed to classify Appellant’s
Motions as PCRA Petitions. Appellant’s pro se Motions, challenging his
counsel’s effectiveness and the trial court’s failure to merge his charges for
sentencing, raised claims cognizable under the PCRA. See Commonwealth
v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (holding that claims of ineffective
assistance of counsel should generally be raised on collateral review);
Commonwealth v. Kitchen, 814 A.2d 209, 214 (Pa. Super. 2002) (noting
that a claim that the court should have merged charges for sentencing is a
challenge to the legality of sentence); Commonwealth v. Hockenberry,
689 A.2d 283, 288 (Pa. Super. 1997) (finding that an untimely motion to
modify sentence that challenges the legality of a sentence should be treated
as a PCRA Petition); Commonwealth v. Kutnyak, 781 A.2d 1259, 1261
(Pa. Super. 2001) (holding that, regardless of what a defendant titles his
petition, “the PCRA is the exclusive vehicle for obtaining post-conviction
collateral relief.”). Accordingly, the lower court should have treated the
Motions as PCRA Petitions.
Given the trial court’s failure to consider Appellant’s Motions under the
PCRA, we vacate the Orders denying relief and remand with instructions to
permit counsel to file an amended PCRA Petition or a petition to withdraw as
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counsel and an accompanying “no merit” letter pursuant to Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc), and their progeny. See Pa.R.Crim.P.
904(E).
Orders vacated. Case remanded. Counsel’s Petition to Withdraw as
Counsel denied. Jurisdiction relinquished.
President Judge Emeritus Stevens joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2017
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