J-S76025-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DOMINGO VEGA, 

Appellant.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 626 WDA 2018

Appeal from the Order, March 13, 2018,

in the Court of Common Pleas of Jefferson County,

Criminal Division at No(s): CP-33-CR-0000215-2012.

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 29, 2019

Domingo Vega appeals pro se from the order denying as untimely his 

“motion to correct illegal sentence.” We vacate and remand with instructions.

On October 3, 2012, Vega pled guilty to the offense of corruption of 

minors, 18 Pa.C.S.A. section 6301(a)(1), a misdemeanor of the first degree. 

He was sentenced to incarceration of a minimum of six months to a maximum 

of twenty-four months less one day followed by three years plus one day 

probation. Additionally, the trial court imposed certain special conditions. In 

particular, Vega was prohibited from having unsupervised contact with the 

victim or with children under the age of 18. Additionally, he was required to 

submit to periodic polygraph examinations. 
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After being paroled, during a maintenance polygraph, Vega admitted 

that he had unsupervised contact with a six-year-old girl from church and he 

lied. Consequently, Vega was charged with violating his probation. 

After a probation revocation hearing, the trial court sentenced Vega to 

eighteen months to five years in a state correctional institution. Vega filed an 

appeal to this Court, challenging only the issue of the Commonwealth’s proof. 

This Court affirmed Vega’s judgment of sentence. Commonwealth v. Vega, 

153 A.3d 1098 (Pa. Super 1016) (unpublished memorandum).

On February 17, 2017, Vega timely filed a pro se PCRA petition. After 

appointing counsel, the PCRA court held an evidentiary hearing. By order 

dated July 6, 2017, the PCRA court granted Vega’s PCRA petition, in part, and 

reinstated his right to file a petition for allowance of appeal nunc pro tunc. 

Vega then filed a petition for allowance of appeal to our Supreme Court, which 

was denied on January 9, 2018. Commonwealth v. Vega, 178 A.3d 733 

(Pa. 2018). 

Shortly thereafter, on March 12, 2018, Vega filed a pro se “motion to 

correct an illegal sentence”. This motion challenged the sentence entered on 

July 1, 2015, after revocation of his probation. The next day, the trial court 

denied Vega’s motion as an untimely motion to modify his sentence. Vega 

filed his notice of appeal on April 9, 2018. The trial court did not require 

Pa.R.A.P. 1925 compliance.
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On appeal, Vega raises the following issues:

1. Did the trial court impose an illegal sentence of a bias and 

prejudicial nature by ignoring the applicable statute associated 

with his conviction?

2. Did the trial court impose a sentence by disregarding the 

numerous violations of Vega’s constitutional rights during the 

investigative stage of the events surrounding the probation 

revocation process?

See Vega’s Brief at 4.

Initially, we note that we do not reach the issue of whether the trial 

court properly denied Vega relief because the trial court erred in failing to 

recognize that Vega’s “Motion to Correct an Illegal Sentence” should have 

been treated as a petition under the Post-Conviction Relief Act (“PCRA”). 42 

Pa.C.S.A. §§ 9541-9546.

Under established Pennsylvania precedent, “the PCRA is intended to be 

the sole means of achieving post-conviction relief.” Commonwealth v. 

Taylor, 64 A.3d 462, 465 (Pa. Super. 2013) (citations omitted). Accordingly, 

any petition for post-conviction relief will generally be considered under the 

auspices of the PCRA, notwithstanding the title given to the petition, if the 

petition raises issues cognizable under the PCRA. See Commonwealth v. 

Peterkin, 722 A.2d 638 (Pa. 1998); 42 Pa.C.S.A. § 9542.

A claim is cognizable under the PCRA if it challenges the petitioner’s 

conviction, sentence, of the effectiveness of counsel during the plea process, 

trial, appeal, or PCRA review. 42 Pa.C.S.A. § 9543. Here, Vega’s motion to 
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modify sentence attacked the legality of his sentence, which is cognizable 

under the PCRA. See Commonwealth v. Jackson, 30 A.3d 516 (Pa. Super. 

2011). Accordingly, the PCRA was the sole avenue for Vega to gain relief, and 

therefore, the trial court erred in failing to treat the pro se “Motion to Correct 

an Illegal Sentence” as a PCRA petition.

Moreover, given the procedural history of this case, Vega’s pro se filing 

by Vega constitutes his first PCRA petition. “It is now well[-]established that 

a PCRA petition brought after an appeal nunc pro tunc is considered [an] 

appellant’s first PCRA petition.” Commonwealth v. Figueroa, 29 A.3d 1177, 

1181 (Pa. Super. 2011) (quoting Commonwealth v. Fowler, 930 A.2d 586, 

591 (Pa. Super. 2007). This conclusion is significant because, as our Supreme 

Court has recognized:

Rule 904 provides, in relevant part, that when 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 relief. 

Pa.R.Crim.P. 904(B). . . . We have stated that the rules of 

criminal procedure require the appointment of counsel in 

[first] PCRA proceedings.

Commonwealth v. Smith, 818 A.2d 494, 498 (Pa. 2003) (citations omitted).

Moreover, our Supreme Court has recognized that this rule-based right 

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

facially untimely or the petition does not present a colorable claim. See id.
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Here, our review of the record reveals that the trial court granted Vega 

indigent status to pursue this appeal. See Order, 4/11/18. In addition, there 

is no indication that that Vega has waived his right to counsel.

Therefore, we vacate the trial court’s order denying Vega’s “Motion to 

Correct an Illegal Sentence” and remand for the appointment of counsel. See 

Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011) (holding 

“that where an indigent, first-time PCRA petitioner was denied his right to 

counsel—or failed to properly waive that right—this Court is required to raise 

this error sua sponte and remand for the PCRA court to correct that mistake).

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/29/2019