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Commonwealth v. Evans1/6/2005
1 James Evans appeals pro se the trial court's denial of his pro se motion styled Permission to File Nunc Pro Tunc Motion for Reconsideration or Modification of Sentence. He raises a single question: "Whether the trial court erred departing from the sentencing procedure mandated in Pa. Rules of Criminal Procedure 704(C)(2) by not stating, on the record, the reason(s) for its decision underlying the sentence imposed." Brief for Appellant at 4. First, we find that Evans's submission, by whatever name, required treatment as a petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46. Second, we find that Evans was not appointed counsel as required under the PCRA. Accordingly, we do not reach the merits of his various arguments. Instead, we vacate the trial court's order denying Evans's PCRA petition and remand for the appointment of counsel and further proceedings pursuant to the PCRA.
2 The trial court's succinct account of the facts underlying Evans's guilty plea will suffice.
On July 16, 2002, [Evans] entered a negotiated guilty plea to unauthorized use of automobiles[,] two counts of simple assault, escape, resisting arrest, two counts of reckless endangerment, driving under license suspension, DUI related, and violation of the Controlled Substances Act. On September 5, 2002, [Evans] was sentenced to an aggregate term of 54 months['] to 192 months['] incarceration. Defendant filed an appeal of this sentence to the Pennsylvania Superior Court. By Memorandum issued May 28, 2003, the Superior Court affirmed the judgment of sentence of this Court. On February 5, 2004, Defendant filed with this Court a motion for Permission to File Nunc Pro Tunc Motion for Reconsideration or Modification of Sentence. By Court Order dated February 18, 2004, this Court denied Defendant's motion. As stated above, Defendant has now filed an appeal of this Court Order to the Pennsylvania Superior Court.
Trial Court Opinion, 3/15/04, at 1-2. The parties do not dispute that Evans's appeal of the trial court's denial was timely filed on March 8, 2004.
3 We begin by addressing the status of Evans's pro se submissions to this Court, which, in addition to the initial Brief (6/23/04), include a Reply Brief (8/10/04) and a Supplemental Letter Brief (8/16/04) that this Court granted Evans leave to file, in which he argued that the United States Supreme Court's decision in Blakely v. Washington, 124 S.Ct. 2531 (2004), invalidated his underlying sentence. The PCRA provides that "The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis." 42 Pa.C.S. § 9542. In Commonwealth v. Hockenberry, 689 A.2d 283 (Pa. Super.), appeal denied, 689 A.2d 283 (Pa. 1997), we faced a very similar situation. In that case, appellant filed pro se a "Motion for Reduction/Modification of Sentence to Correct Illegal Sentence." Id. at 287. We noted, at the outset, that a motion to modify sentence must be filed within ten days and an appeal from a sentence must be filed within thirty days. See id. at 288. In Hockenberry, however, appellant filed his motion more than nine months after sentence was imposed. See id. Noting that the issues of sentence legality raised by appellant were cognizable under the PCRA and cannot be waived, this Court "ignore the untimeliness of appellant's motion 'to modify' his sentence and treat it as a PCRA petition relating to the legality of sentence." Id.; see also Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001) (treating appellant's pro se motion chal
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