J-S43007-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

PAUL JOHN KASPAR, JR.

Appellant No. 2097 MDA 2015

Appeal from the PCRA Order November 5, 2015

In the Court of Common Pleas of Adams County

Criminal Division at No(s): CP-01-CR-0000462-2010;

CP-01-CR-0000969-2010

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J. 

JUDGMENT ORDER BY GANTMAN, P.J.: FILED JULY 06, 2016

Appellant, Paul John Kaspar, Jr., appeals from the order entered in the 

Adams County Court of Common Pleas, which denied his pro se first petition 

filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We vacate and 

remand for further proceedings. 

On June 23, 2011, a jury convicted Appellant of rape, statutory sexual 

assault, sexual assault, aggravated indecent assault, unlawful contact with a 

minor, corruption of minors, and indecent assault. On September 29, 2011, 

the trial court imposed an aggregate sentence of fifteen (15) to thirty (30) 

years’ incarceration. This Court affirmed the judgment of sentence on June 

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546. 
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25, 2012. On October 19, 2015, Appellant pro se filed his first PCRA 

petition. The PCRA court denied the petition without a hearing on November 

5, 2015. Appellant timely filed a pro se notice of appeal on December 4, 

2015. On December 14, 2015, the court appointed counsel for the appeal 

and ordered Appellant to file a Pa.R.A.P. 1925(b) statement. Appellant filed 

a timely counseled Rule 1925(b) statement on December 28, 2015. 

Appellant’s pro se status throughout the proceedings of his first PCRA 

petition presents a question of whether Appellant was effectively deprived of 

his right to counsel. An indigent defendant is entitled to appointment of 

counsel for his first PCRA petition. Commonwealth v. Smith, 572 Pa. 572, 

818 A.2d 494 (2003). 

While a PCRA petitioner does not have a Sixth Amendment 

right to assistance of counsel during collateral review, this 

Commonwealth, by way of procedural rule, provides for 

the appointment of counsel during a prisoner’s first 

petition for post conviction relief. Pursuant to our 

procedural rule, not only does a PCRA petitioner have the 

“right” to counsel, but also he has the “right” to effective 

assistance of counsel. The guidance and representation of 

an attorney during collateral review should assure that 

meritorious legal issues are recognized and addressed, and 

that meritless claims are foregone.

Commonwealth v. Haag, 570 Pa. 289, 307-08, 809 A.2d 271, 282-83 

(2002), cert. denied, 539 U.S. 918, 123 S.Ct. 2277, 156 L.Ed.2d 136 (2003) 

(internal citations omitted); Pa.R.Crim.P. 904. This rule-based right to 

counsel persists throughout the PCRA proceedings, even if the petition is 

untimely or the petition does not present a cognizable claim. Smith, supra. 
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Instantly, Appellant’s current PCRA petition is his first. Appellant filed 

the petition pro se and the record confirms Appellant is indigent. Therefore, 

Appellant was entitled to assistance of counsel to litigate his first PCRA 

petition, regardless of the petition’s facial untimeliness. See id.; Haag, 

supra; 42 Pa.C.S.A. 9545(b)(1). Appellant requested appointment of 

counsel in his PCRA petition. The court, however, failed to appoint counsel 

for Appellant before it denied the petition. The court’s subsequent 

appointment of counsel for appeal did not remedy that error. Therefore, we 

vacate the order denying Appellant PCRA relief and remand for counsel to 

review Appellant’s PCRA petition and file an amended petition if necessary, 

raising any exceptions to the PCRA timeliness requirements and appropriate 

claims for relief.2 Accordingly, we vacate and remand for further 

proceedings. 

Order vacated; case remanded with instructions. Jurisdiction is 

relinquished. 

____________________________________________

2 Appellant initially sought collateral relief pursuant to the United States 

Supreme Court’s decision in Alleyne v. United States, ___ U.S. ___, 133 

S.Ct. 2151, 186 L.Ed 314 (2013). This Court is currently reviewing en banc

the viability of an Alleyne-based sentencing challenge in the context of a 

timely filed PCRA petition. Nevertheless, Alleyne does not qualify as an 

exception to the PCRA time bar under Section 9545(b)(1)(iii). See 

Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/6/2016