J-S41034-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

 RONALD CALDERON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 906 MDA 2022

Appeal from the PCRA Order Entered November 15, 2021

In the Court of Common Pleas of Lebanon County Criminal Division at 

No(s): CP-38-CR-0000179-2015

BEFORE: LAZARUS, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: DECEMBER 29, 2022

Appellant Ronald Calderon appeals from the November 15, 2021, order 

entered in the Court of Common Pleas of Lebanon County, which denied

Appellant’s pro se petition filed under the Post Conviction Relief Act (“PCRA”), 

42 Pa.C.S.A. §§ 9541-46. After a careful review, we vacate the PCRA court’s 

order and remand for further proceedings consistent with this decision.

The relevant facts and procedural history are as follows: The 

Commonwealth charged Appellant with various crimes in connection with a 

home invasion, which resulted in the shooting of one of the victims. 

Represented by court-appointed counsel from the Office of the Public 

Defender, Appellant proceeded to a jury trial, and the jury convicted him of 

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* Former Justice specially assigned to the Superior Court.
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three counts of robbery, five counts of criminal conspiracy, and two counts of 

aggravated assault.1 

On October 28, 2015, the trial court sentenced Appellant to an 

aggregate of thirteen and one-half years to thirty-one years in prison. On 

November 22, 2016, this Court affirmed Appellant’s judgment of sentence. 

Appellant did not file a petition for allowance of appeal with our Supreme 

Court.

On July 26, 2021, Appellant filed a pro se document entitled “Motion to 

Correct Sentence”2 wherein he contended the trial court imposed an illegal 

sentence by failing to merge his conviction on one count of conspiracy (to 

commit robbery) with his conviction on one count of robbery. On July 29, 

2021, the lower court summarily denied the “Motion to Correct Sentence” 

without prejudice to Appellant’s right to file a PCRA petition. 

On or about September 3, 2021, Appellant filed a pro se PCRA petition 

wherein he again asserted the trial court imposed an illegal sentence by failing 

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1 18 Pa.C.S.A. §§ 3701(a)(1), 903(c), and 2702(a), respectively. 

2 Although the pro se document was time-stamped on July 29, 2021, we deem 

it to have been filed on July 26, 2021, when Appellant handed it to prison 

authorities as evidenced by Appellant’s certification. See Commonwealth v. 

Jones, 549 Pa. 58, 700 A.2d 423 (1997) (holding an affidavit attesting to the 

date of deposit with prison officials may be considered as evidence of the date 

of mailing); Commonwealth v. Patterson, 931 A.2d 710 (Pa.Super. 2007) 

(explaining the prisoner mailbox rule).
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to merge his convictions. By order entered on November 15, 2021, the PCRA 

court summarily denied Appellant’s pro se PCRA petition.3

On November 23, 2021, Appellant filed a timely pro se notice of appeal.

4

On June 29, 2022, this Court directed the PCRA court to determine whether 

Appellant was entitled to the appointment of counsel, and the PCRA court 

responded by appointing counsel to assist Appellant on appeal. 

In his counseled brief, Appellant sets forth the following issue in his 

“Statement of the Questions Involved” (verbatim):

1. Did the Trial Court commit err (sic) when it did not merge 

Count I and Count II for sentencing?

Appellant’s Brief at 2 (suggested answer omitted).

Initially, we note “[o]ur standard of review for issues arising from the 

denial of PCRA relief is well-settled. We must determine whether the PCRA 

court’s ruling is supported by the record and free of legal error.” 

Commonwealth v. Hand, 252 A.3d 1159, 1165 (Pa.Super. 2021) (citation 

omitted).

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3 We note that, although the PCRA court treated this petition under the 

auspices of the PCRA, the court did not provide Appellant with notice of its 

intent to dismiss as provided for in Pa.R.Crim.P. 907(1) or hold an evidentiary 

hearing.

4 Although the pro se notice of appeal was time-stamped on December 16, 

2021, which would have been thirty-one days after the PCRA court filed its 

order, we deem the notice of appeal to have been filed on November 23, 2021, 

when Appellant handed it to prison authorities as evidenced by Appellant’s 

certification. See Jones, supra; Patterson, supra.
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In the case sub judice, we discern several breakdowns in the PCRA 

court, which require us to vacate the PCRA court’s November 15, 2021, order 

and remand for further proceedings. 

Preliminarily, as it pertains to Appellant’s pro se “Motion to Correct 

Sentence,” which he filed on July 26, 2021, we conclude the PCRA court erred 

in failing to treat this document under the auspices of the PCRA.5 It is wellsettled the PCRA is “the sole means of obtaining collateral relief,” and “if the 

underlying substantive claim is one that could potentially be remedied under 

the PCRA, that claim is exclusive to the PCRA.” Commonwealth v. Pagan,

864 A.2d 1231, 1233 (Pa.Super. 2004) (emphasis omitted). We are 

particularly mindful that the PCRA provides the exclusive means of obtaining 

collateral relief in Pennsylvania for criminal defendants alleging that they are, 

inter alia, serving an illegal sentence. See 42 Pa.C.S.A. § 9542 (“This 

subchapter provides for an action by which...persons serving illegal sentences 

may obtain collateral relief. The action established in this subchapter shall 

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5 We note that we may raise this matter sua sponte. See Commonwealth 

v. Beatty, 207 A.3d 957, 961 (Pa.Super. 2019). Further, while we 

acknowledge the PCRA court denied the “Motion to Correct Sentence” without 

prejudice to Appellant’s right to file a PCRA petition, it is well-settled the PCRA 

has jurisdictional time limits, subject to three statutory exceptions, which 

provide that a PCRA petition, including a second or subsequent petition, shall 

be filed within one year of the date the underlying judgment becomes final. 

See Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010);

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Thus, it is incumbent upon a court to 

determine when a PCRA petition has been filed in order to determine whether 

it has jurisdiction. 
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become the sole means of obtaining collateral relief and encompasses all other 

common law and statutory remedies....”). 

In his pro se “Motion to Correct Sentence,” Appellant contends his 

sentence is illegal under the merger doctrine. This raises a legality of 

sentencing claim, which is subject to the PCRA. See Commonwealth v.

Moore, ___ Pa. ___, 247 A.3d 990 (2021) (noting merger claims are legality 

of sentencing claims that are cognizable under the PCRA). Thus, we conclude 

the PCRA court should have considered Appellant’s July 26, 2021, pro se 

document as a first PCRA petition.

Furthermore, we note the PCRA court failed to appoint counsel to assist 

Appellant after he filed his July 26, 2021, pro se document.

6 See 

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

a first-time PCRA petitioner was not appointed counsel, and there is no 

indication he waived his right to counsel, we may raise the issue of error sua 

sponte).

“[I]t is undisputed that first time PCRA petitioners have a rule-based 

right to counsel.” Commonwealth v. Figueroa, 29 A.3d 1177, 1180 n.6 

(Pa.Super. 2011). Specifically, Pennsylvania Rule of Criminal Procedure 904 

relevantly provides:

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6 We further note that, after Appellant filed his pro se document entitled “PCRA 

petition” on or about September 3, 2021, the PCRA court summarily dismissed 

this petition without appointing counsel to represent Appellant. 
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(C) Except as provided in paragraph (H),[7] when an 

unrepresented defendant satisfies the judge that the defendant is 

unable to afford[8] or otherwise procure counsel, the judge shall 

appoint counsel to represent the defendant on the defendant's 

first petition for post-conviction collateral relief.

Pa.R.Crim.P. 904(C) (bold in original) (footnotes added).

Our Supreme Court has explained that “[t]he denial of PCRA relief 

cannot stand unless the petitioner was afforded the assistance of counsel.” 

Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 699 (1998). Thus, 

when an indigent petitioner files his first PCRA petition without the assistance 

of counsel, the PCRA court must appoint counsel to assist the petitioner in 

filing an amended PCRA petition. See Commonwealth v. Tedford, 566 Pa. 

457, 781 A.2d 1167 (2001). The indigent petitioner’s right to counsel must 

be honored regardless of the merits of his underlying claims or the facial 

untimeliness of his first PCRA petition. See Commonwealth v. Kelsey, 206 

A.3d 1135 (Pa.Super. 2019); Commonwealth v. Perez, 799 A.2d 848 

(Pa.Super. 2002). This right to counsel “exists throughout the post-conviction 

proceedings, including any appeal from [the] disposition of the petition for 

post-conviction relief.” Commonwealth v. Quail, 729 A.2d 571, 573

(Pa.Super. 1999) (internal citations and quotation marks omitted). 

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7 Paragraph (H) applies to death penalty cases and is inapplicable to the case 

sub judice. Pa.R.Crim.P. 904(H).

8 Here, there is no dispute Appellant is indigent, and the PCRA court 

determined as much in response to our June 29, 2022, order.
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In the case sub judice, as indicated supra, Appellant’s pro se “Motion to 

Correct Sentence,” which he filed on July 26, 2021, constituted Appellant’s 

first PCRA petition. Accordingly, the PCRA court committed an error of law 

when it failed to appoint counsel to represent Appellant throughout the PCRA 

proceedings.

Consequently, for all of the aforementioned reasons, we vacate the 

PCRA court’s November 15, 2021, order and remand for proceedings 

consistent with this decision, including the appointment of counsel to assist 

Appellant as it relates to his first PCRA petition, which we deem to have been 

filed on July 26, 2021.

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Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/29/2022

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9 We recognize that, in response to this Court’s June 29, 2022, order, the

PCRA court appointed Michael J. Light, II, Esquire to assist Appellant on 

appeal. Upon remand, the PCRA court shall either appoint new counsel or, if 

appropriate, direct Attorney Light to represent Appellant during the PCRA 

proceedings below. In any event, PCRA counsel may seek to withdraw, if 

appropriate, in accordance with Commonwealth v. Turner, 518 Pa. 491, 

544 A.2d 927 (1988), and Commonwealth v. Finley, 550 A.2d 213 

(Pa.Super. 1988) (en banc), as well as its progeny.