J-A10004-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MILLARD SHUBERT BEATTY, III

Appellant No. 1186 MDA 2014

Appeal from the Order Entered July 1, 2014

In the Court of Common Pleas of Lycoming County

Criminal Division at No(s): CP-41-CR-0000284-2006

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MILLARD SHUBERT BEATTY, III

Appellant No. 1187 MDA 2014

Appeal from the Order July 1, 2014

In the Court of Common Pleas of Lycoming County

Criminal Division at No(s): CP-41-CR-0000270-2006

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

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 08, 2015

Appellant, Millard Shubert Beatty, III, appeals from the orders entered 

in the Lycoming County Court of Common Pleas, denying his pro se motion 

to modify sentence nunc pro tunc. We vacate and remand for further 

proceedings. 
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The relevant facts and procedural history of this appeal are as follows. 

In case [No. 270 of 2006], [Appellant] was charged with 

burglary, a felony of the first degree; conspiracy to commit 

burglary, a felony of the first degree; two counts of 

forgery, both graded as felonies of the second degree; 

criminal trespass, a felony of the third degree; access 

device fraud, a misdemeanor of the first degree; 

possessing an instrument of crime, a misdemeanor of the 

first degree; theft by unlawful taking, a misdemeanor of 

the first degree; and receiving stolen property, a 

misdemeanor of the first degree. These charges arose out 

of an incident on January 17, 2006 where [Appellant] 

entered an individual’s residence, stole checks and a debit 

card and then used the debit card to make purchases and

cashed the checks. 

In case [No. 284 of 2006], [Appellant] was charged with 

receiving stolen property, a felony of the third degree; 

recklessly endangering another person [(“REAP”)], a 

misdemeanor of the second degree; resisting arrest, a 

misdemeanor of the second degree; possession of drug 

paraphernalia, an ungraded misdemeanor; fleeing or 

attempting to elude a police officer, a misdemeanor of the 

second degree; driving under the influence (“DUI”), an 

ungraded misdemeanor, and numerous summary offenses. 

These offenses arose out of an incident on January 22, 

2006, where police discovered [Appellant] in possession of 

a stolen vehicle and he led them on a high-speed chase 

before crashing the vehicle and being taken into custody. 

The police discovered a crack pipe on [Appellant’s] person 

during a search incident to his arrest. 

On June 7, 2006, [Appellant] pled guilty to burglary, 

conspiracy and forgery in case [No. 270 of 2006] and 

receiving stolen property, [REAP], possession of drug 

paraphernalia, fleeing and eluding, DUI and several 

summary offenses in case [No. 284 of 2006]. The court 

sentenced [Appellant] to twelve months of supervision 

under the Intermediate Punishment Program for each 

conviction in case [No. 270 of 2006], for an aggregate 

period of 36 months of Intermediate Punishment 

supervision. 
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In case [No. 284 of 2006], the court sentenced [Appellant] 

to 6 months on the Intermediate Punishment Program with 

the first 72 hours at the Lycoming County Pre-Release 

Center for DUI and 12 months of supervision on the 

Intermediate Punishment Program on each conviction for 

receiving stolen property, [REAP], and fleeing or 

attempting to elude the police. Shortly thereafter, 

[Appellant] violated his Intermediate Punishment 

supervision. On July 19, 2006, those sentences were 

revoked and [Appellant] was resentenced. Under case 

[No. 270 of 2006], the court imposed two years of 

probation under the supervision of the Pennsylvania Board 

of Probation and Parole on each count. These sentences 

were to be served consecutive to the sentence imposed in 

case [No. 581 of 2005].1 The sentence[s] imposed for 

Count 2, conspiracy, and Count 3, forgery, were 

concurrent to each other but consecutive to the sentence 

imposed for Count 1, burglary. 

1

In case [No. 581 of 2005], [Appellant] was 

resentenced to 13 months to 5 years of incarceration 

in a state correctional institution. 

In case [No. 284 of 2006], [Appellant] was resentenced to 

one year of probation on Count 1, receiving stolen 

property; two years of probation on Count 2, [REAP]; and 

1 year of probation on Count 4, possession of drug 

paraphernalia. These sentences were to be served 

concurrently to each other and concurrently to the 

sentences imposed under Count 1 of case [No. 270 of 

2006], but consecutively to the period of state 

incarceration imposed in case [No. 581 of 2005]. 

On June 5, 2013, [Appellant] was arrested and charged 

with multiple crimes including aggravated assault, fleeing 

or attempting to elude a police officer, [REAP], and false 

identification to law enforcement. [Appellant] was 

incarcerated from the time of his arrest to the time of his 

final special probation violation hearing on January 13, 

2014. After the hearing, the [trial court] determined that 

[Appellant] had violated the conditions of his probation. 

The [c]ourt revoked [Appellant’s] special probation 

sentences in cases [Nos. 270 and 284 of 2006]. On Count 

1 of case [No. 270 of 2006], the [c]ourt resentenced 
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[Appellant] to one to two years of incarceration to run 

concurrently with a sentence imposed in case [No. 253 of 

2013] of Columbia County. On Count 2 of case [No. 270 

of 2006], the [c]ourt resentenced [Appellant] to one to two 

years of incarceration to run concurrently with the Count 1 

sentence and the sentence imposed in case [No. 253 of 

2013] of Columbia County. On Count 3 of case [No. 270 

of 2006], the [c]ourt resentenced [Appellant] to three to 

nine months of incarceration to run concurrently to the 

sentence imposed in case [No. 253 of 2013] of Columbia 

County and the sentences imposed in Count 1 and Count 

2. On Count 2 of [No. 284 of 2006], the [c]ourt sentenced 

[Appellant] to three to nine months of incarceration to run 

concurrently with the sentences imposed in case [No. 270 

of 2006.1] [Appellant] received credit for time served from 

January 9, 2013 to February 21, 2013. He also received 

credit for time served on March 5, 2013. He also received 

credit for time served from June 6, 2013 to January 12, 

2014. 

On March 25, 2014, [Appellant] pled guilty to the charges 

of attempting to elude a police officer and [REAP], which 

arose from his arrest on June 5, 2013. On March 25, 

2014, the [trial court] imposed a sentence of 18 to 36 

months of incarceration to run consecutively to the other 

sentences being served. [Appellant] did not file a postsentence motion and did not appeal the sentence of March 

25, 2014. 

On June 25, 2014, [Appellant] pro se filed a “Motion to 

Modify Sentence Nunc Pro Tunc” [at Nos. 270 and 284 of 

2006]. In the motion, [Appellant] asked the [c]ourt “to 

sever part of the credit for time served.” Specifically, 

[Appellant] wanted the time from June 6, 2013 to January 

12, 2014 “severed.” The [c]ourt determined that 

[Appellant] wanted the time served from June 6, 2013 to 

January 12, 2014 applied to his sentence imposed on 

March 25, 2014. On July 1, 2014, the [c]ourt denied 

[Appellant’s] motion. 

____________________________________________

1 The court determined Appellant had completed serving his sentences for 

the remaining convictions. (Order, dated 1/13/14, at 2). 
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(Trial Court Opinion, filed September 11, 2014, at 1-3) (internal citations to 

the record omitted). 

Appellant timely filed a pro se notice of appeal on July 16, 2014. On 

July 21, 2014, this Court ordered the trial court to conduct an on-the-record 

inquiry to determine whether Appellant desired counsel on appeal, pursuant 

to Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).2 The trial 

court conducted the Grazier hearing on August 19, 2014, and it determined 

Appellant’s waiver of appellate counsel was knowing, voluntary, and 

intelligent. 

Appellant raises five issues for our review: 

WHETHER [THE COURT] HAD THE JURISDICTION TO HEAR 

AND ANSWER THE MOTION (MOTION TO MODIFY NUNC 

PRO TUNC)...? 

WHETHER [THE COURT] ERRED IN DENYING THE 

MOTION? 

WHETHER THE TIME THAT WAS CREDITED TO 

[APPELLANT’S] SENTENCE WAS PROPERLY APPLIED IN 

APPLICATION OF CURRENT LAW AND PRACTICE? 

WHETHER THE TIME SHOULD HAVE BEEN SEVERED FROM 

THE SENTENCE AND ALLOWED TO ACCUMULATE TOWARD 

[APPELLANT’S] NEW CRIMINAL CHARGES? 

WHETHER THE TIME CREDITED WAS ERRONEOUSLY 

APPLIED TO [APPELLANT’S] SENTENCE? 

____________________________________________

2

Prior to the Grazier hearing, on July 23, 2014, the court ordered Appellant 

to file a concise statement of errors complained of on appeal, pursuant to 

Pa.R.A.P. 1925(b). Appellant subsequently complied with the court’s order. 
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(Appellant’s Brief at 3). 

As a prefatory matter, “[T]he [Post Conviction Relief Act (“PCRA”)3] 

provides the sole means for obtaining collateral review, and...any petition 

filed after the judgment of sentence becomes final will be treated as a PCRA 

petition.” Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa.Super. 

2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008) (quoting 

Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa.Super. 2002)). 

See also Commonwealth v. Weimer, 756 A.2d 684, 685-86 (Pa.Super. 

2000), appeal denied, 564 Pa. 695, 764 A.2d 50 (2000) (explaining pro se

post-conviction petitions couched in terms of habeas corpus and legality of 

sentence actually seek relief available under PCRA). “[A] court may 

entertain a challenge to the legality of the sentence so long as the court has 

jurisdiction to hear the claim. In the PCRA context, jurisdiction is tied to the 

filing of a timely PCRA petition.” Fowler, supra at 592 (quoting 

Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super. 2005 (en banc), 

appeal denied, 591 Pa. 688, 917 A.2d 844 (2007)). Challenges to a court’s 

allocation of credit for time served implicate the legality of sentence. 

Commonwealth v. Pettus, 860 A.2d 162 (Pa.Super. 2004), appeal denied, 

584 Pa. 706, 885 A.2d 41 (2005). 

Further, an indigent petitioner is entitled to representation by counsel 

____________________________________________

3 42 Pa.C.S.A. §§ 9541-9546. 
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for a first PCRA petition. Commonwealth v. White, 871 A.2d 1291 

(Pa.Super. 2005). This right to representation exists throughout the postconviction proceedings, including any appeal from disposition of the PCRA 

petition. Id. “This right to counsel, although not constitutionally mandated, 

derives from the Pennsylvania Rules of Criminal Procedure, see Pa.R.Crim.P. 

904(B)....” Commonwealth v. Stout, 978 A.2d 984, 988 (Pa.Super. 2009). 

The right is unaffected even if the petition is untimely on its face. Id. See 

also Commonwealth v. Evans, 866 A.2d 442, 445 (Pa.Super. 2005) 

(stating, “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”). Where a petitioner’s right 

to representation has been effectively denied by the action of court or 

counsel, the petitioner is entitled to have his case remanded to the PCRA 

court for appointment of counsel to assist with the PCRA petition. 

Commonwealth v. Perez, 799 A.2d 848 (Pa.Super. 2002). 

Instantly, Appellant claims his revocation sentences are illegal, 

because the sentencing court should not have applied certain credit for time 

served to the sentences imposed following the revocation of probation at 

Nos. 270 and 284 of 2006. Instead, Appellant insists the court should have 

waited and applied the credit for time served to the sentences subsequently 

imposed at an unrelated docket number on March 25, 2014. As expressed, 

Appellant challenges the legality of his sentences. See Pettus, supra. 
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Such claims are generally cognizable under the PCRA. See Fowler, supra. 

The trial court, however, failed to apply the PCRA to Appellant’s filing. 

Instead, the court evaluated the pro se motion to modify sentence nunc pro 

tunc independent of the PCRA and denied relief without appointing counsel 

to assist Appellant with the presentation of his claims. 

Significantly, the current petition represents Appellant’s first collateral 

attack upon the judgment of sentence. Because Appellant’s pro se motion to 

modify sentence nunc pro tunc is the functional equivalent of a PCRA 

petition, the court should have confirmed Appellant’s in forma pauperis

status and determined whether Appellant was entitled to and desired 

appointed counsel to assist with the filing of Appellant’s first PCRA petition.4 

See White, supra. Here, the court effectively denied Appellant the right to 

counsel on his first PCRA petition.5 See Perez, supra. 

Therefore, we conclude the best resolution of this case is to vacate the 

order denying Appellant’s pro se motion and remand the case for further 

____________________________________________

4 On October 8, 2013, the court appointed a member of the public 

defender’s office to represent Appellant. Appellant appeared with appointed 

counsel at the January 13, 2014 violation hearing. Thereafter, Appellant 

acted pro se. 

5 We come to this conclusion, notwithstanding the Grazier proceeding 

previously conducted because that proceeding was linked solely to 

Appellant’s waiver of counsel on appeal. Nevertheless, an indigent 

petitioner’s right to counsel for a first PCRA petition is an altogether separate 

matter, and we are unwilling to construe Appellant’s prior decision to 

proceed pro se on this appeal as a blanket rejection of counsel for PCRA 

purposes. 
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proceedings. Procedurally, Appellant will be placed in the same position he 

occupied when he initially filed his pro se motion to modify sentence nunc 

pro tunc. Upon remand, the court must determine whether Appellant wants 

counsel to assist with the filing of an amended PCRA petition and any other 

cognizable claim Appellant wishes to raise. Counsel must consult with 

Appellant and either file an amended first PCRA petition or a proper “nomerit” letter addressing Appellant’s claims. If, after another Grazier

hearing, Appellant still wants to proceed pro se, the court must issue proper 

notice and an order deciding the PCRA petition. Appellant can then file a pro 

se notice of appeal.6 

Orders vacated; case remanded for further proceedings. Jurisdiction is 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/8/2015

____________________________________________

6 Appellant has also filed a separate pro se “petition for appeal of order,” 

asking this Court to review issues that are identical to those set forth in his 

appellate brief. Due to our disposition, we deny Appellant’s open motion as 

moot.