J

- S44033

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

PETER KISTLER,

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3828 EDA 2017

Appeal from the PCRA Order November 7, 2017

in the Court of Common Pleas of Lehigh County,

Criminal Division at No(s): CP

- 39

- 0003428

- 2005

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 31, 2018

Peter Kistler (“Kistler”), pro se , appeals from the Order denying his first

Petition filed under the Post Conviction Relief Act (“PCRA”), see 42 Pa.C.S.A.

§§ 9541

- 9546, and his Motion for the Appointment of Counsel

. We vacate the

Order and remand for the appointment of counsel.

The PCRA court set forth the relevant history underlying this appeal as

follows:

On May 30, 2006, ... Kistler[] entered a guilty plea to

Attempting to Lure a Child Into a Motor Vehicle.

... [Kistler,]

during the guilty plea [ colloquy ,] acknowledged that he was aware

of the consequences of being found to be a sexually violent

predator.

... At the conclusion of [a] hearing, [Kistler] was found

to be a sexually violent predator. He was then sentenced to not

less than twenty

- four (24) months nor more than sixty (60)

months in a state correctional institution.

[Kistler] subsequently filed an appeal contesting his

classification as a sexually violent predator. Counsel was

appointed to represent him, and his judgment of sentence wa s

affirmed by the Superior Court, [FN 1 ] and his “ P etition for Allowance

of Appeal” was denied by the Supreme Court. [FN 2 ]J

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- 2

- [FN 1 ] Commonwealth v. Kistler , 944 A.2d 794 (Pa. Super.

200 7)

.

[FN 2 ] Commonwealth v. Kistler , 951 A.2d 1162 (Pa. 2008 )

.

On September 19, 2017, [Kistler] filed a [P]etition [,] which

he called a “Post

- Conviction Relief Act Petition[, 1 ]” ... alleging he

is entitled to the relief dictated by Commonwealth v. Muniz , 164

A. 3d 1189 (Pa. 2017) [, 2 and invoking the newly

- recognized

constitutional right exception to the PCRA’s one

- year time bar.]

The [P] etition attempts to allege that SORNA is being applied to

him retroactively as a past sexual of fender , and ... suggests it also

“ places a unique burden on [his] rights to reputation and

undermines the finality of sentence ....”

* * *

On September 19, 2017, [Kistler] also filed a “ Motion for

Appointment of Counsel. ” [Kistler

, ] in that request [,] was not

challenging his conviction, but seeking the app ointment of counsel

to “address” the lifetime registration requirements under SORNA.

On November 7, 2017, [Kistler ’s ] PCRA [P]etition and [M] otion for

counsel were denied.

PCRA Court Opinion, 1/5/18, at 1

- 3 ( two footnotes in original , two added;

citations and paragraph breaks omitted).

Kistler timely filed a pro se Notice of appeal, followed by a court

- ordered

Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.

_________________ __________ ______ ____ _______

1 Notably to the instant appeal, this was Kistler’s first PCRA Petition.

2 In Muniz , our Supreme Court held that the registration requirements set

forth in the Sex Offender Registration and Notification Act (“SORNA”), 42

Pa.C.S.A. §§ 9799.10

- 9799.41, constitute criminal punishment, and

therefore, their retroactive application violates th e ex post facto clauses of the

United States and Pennsylvania Constitutions. Muniz , 164 A.3d at 1193

.J

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-

In his pro se brief, Kistler presents three issues for our revi ew, which

we incorporate herein by reference, see Brief for Appellant at 5 . They include

a challenge to the PCRA court’s failure to appoint Kistler , an indigent prisoner, 3

counsel to represent him in connection with his first PCRA Petition . This issue

is dispositive of the instant appeal.

In its Opinion, the PCRA court addressed this matter as follows:

[Kistler’s] [P] etition may be labeled as a PCRA petition, but

his claims are not cognizable under the PCRA. See

Commonwealth v. Masker

, 34 A.3d 841 (Pa. Super. 2011)

( [stating that a c] hallenge to the process by which someone is

classified as a sexually violent predator is not a challenge to a

conviction or sentence and is not cognizable under the PCRA);

Commonwealth v. Williams , 977 A.2d 1174 (Pa. Super. 2009)

([stating that the r] eporting requirements of Megan’s Law II are

not “ a sentence of imprisonment, pr obation or parole for the

crime” for which PCRA may provide relief, but rather a colla teral

consequence of conviction ).

Additionall y, a review of [Kistler’s] [P] etition does not

disclose any claims regarding ineffectiveness of counsel or that his

guilty plea was not voluntary. Instead, the relief [Kistler] is

seeking is solely to bring his sex offender registration period under

the M uniz umbrella. See Commonwealth v. Leidig , 956 A.2d

399, 406 (Pa. 2008) ( [stating that] sex offender registration

_________________ __________ ______ ____ _______

3 Initially, we are unable to determine from the record before us whether

Kistler, who filed this appeal while confined at SCI

- Somerset, is still serving a

prison sentence in connection with his instant criminal case. The PCRA court

did not clarify this matter, which implicates Kistler’s eligibility for PCRA relief.

However, we acknowledge that Kistler, in his pro se PCRA Petition, alleges

that, due to m ultiple parole violations, he never commenced serving his prison

sentence of two to five years imposed in this case in 2006

. Under 42 Pa.C.S .A.

§ 9543(a)(1)(i) , to be eligible for PCRA relief, a PCRA petitioner must be

currently serving a prison sentence or be on probation or parole for the crime.

See Commonwealth v. Ahlborn , 699 A.2d 718, 720 (Pa. 1997); s ee also

Commonwealth v. Fisher , 703 A.2d 714, 716 (Pa. Super. 1997) (explaining

that the PCRA “ preclude[s] relief for those petitioners whose sentences have

expired, regardless of the collateral consequences of their sentence.”).J

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-

requirement was a coll ateral consequence of defendant’ s plea, and

the failure of the trial court to accurately advise the defendant of

this registration deviation did not provide grounds for relief).

This [c] ourt recognizes that if [Kistler’s] [P] etition was

properly brought under the PCRA, the rules pertaining to post

conviction collateral proceedings require counsel to be appointed.

See Pa .R.Crim.P. 904 ([C] ) [ (mandating that an indigent

petitioner shall be appointed counsel to represent him or her on a

first PCRA petition) ] ; Commonwealth v. Ramos , 14 A.3d 894,

895 (Pa. Super. 2011). However, the absence of a cognizable

claim under the PCRA does not require the appointment of

counsel. Commonwealth v. Beasley , 678 A.2d 773, 778 (Pa.

1996)[] ([stating that] “[t]he accused has a constitutional right to

counsel on direct appeal, but not in state collateral proceedings.”);

see also Commonwealth v. Priovolos , 715 A.2d 420, 421

- 22

(Pa. 1998). It was not an abuse of discretion to deny [Kistler’s]

[M] otion for the appointment of counsel to litigate his sex offender

registration period.

PCRA Court Opinion, 1/5/18, at 8

- 9

.

Essentially, the PCRA cour t believes that because the claims that Kistler

raise d in his Petition are purportedly not cognizable 4 under the PCRA, his

Petition may not be considered a PCRA petition, and thus, Kistler was not

entitled to have counsel appointed. See id. ; accord Commonwealth v.

Kutnyak , 781 A. 2d 1259, 126 2 (Pa. Super. 2001) (reversing the

determination of the PCRA court that

, due to the nature of the pro se

petitioner’s claims, his petition could not be considered a first PCRA petition

and, therefore, “since there were no valid PCRA claims before the court, there

_________________ __________ ______ ____ _______

4 Because of our disposition herein , we need not address the cognizability of

Kistler’s claims or the timeliness of his PCRA Petition

.J

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-

was no basis to appoint counsel.” (citation and internal quotation marks

omitted)). We disagree.

In Kutnyak , the panel rejected the PCRA court’s determination:

T o the contrary, the petition must be considered a PCRA

petition

, [ 5 ] and counsel must be appointed to represent

[a] ppellant. Our Supreme Court held in Commonwealth v.

Albrecht

, 554 Pa. 31, 720 A.2d 693 (1998), that an

unrepresented petitioner who is indigent has a right to court

appointed counsel to represent him on his first PCRA petition[;

s ] ee also Commonwealth v. Quail

, 1999 PA Super 62, 729

A.2d 571 (P a. Super. 1999). “ The denial of PCRA relief cannot

stand unless the petitioner w as affor ded the assistance of

counsel.” Albrecht

, supra

, at 43, 720 A.2d at

699 (citing Commonwealth v. Duffey [ ,] 551 Pa. 675, 713 A.2d

63 (1998)). The PCRA court may not first evaluate the merits of

the petition, as was done in this case, and then deny the

appointment of counsel because the petition lacks merit. To do

so undermines the very purpose of appointing counsel and thwarts

the intent of the Legislature in providing counsel to indigent

petitioners in collateral proceedings. See generally,

Commonwealth v. Hampton

, 718 A.2d 1250, 1253

- 1254 (Pa.

Super. 1998). 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.

Therefore, as this is [a]ppellant’ s first PCRA petition, he is

entitled to counsel to represent him despite any apparent

untimeliness of the petition or the apparent non

- cognizability

of the claims presented

. Hampton

, 718 A.2d at 1253 (holding

that appointment of counsel is necessary despite the app arent

untimeliness of petition)[; s ] ee also Commonwealth v.

Gu thrie

, 2000 PA Super 77, 749 A.2d 502, 504 (Pa. Super.

2000) (holding there is no need to formally request counsel on a

first PCRA petition, since counsel will be appointed)

(citing Commonwealth v. Ferguson

, 722 A.2d 177 (Pa. Super.

_________________ __________ ______ ____ _______

5 This Court has “repeatedly held that any petition filed after the judgment of

sentence becomes final will be treated as a PCRA petition.” Commonwealth

v. Jackson

, 30 A.3d 516 , 521 (Pa. Super. 2011) (citation and ellipses

omitted).J

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-

1998)). Therefore, we are constrained to vacate and remand this

matter for the appointment of counsel to represent [a] ppellant.

Kutnyak , 781 A.2d at 1262 ( footnote and emphasis added); see also

Commonwealth v. Smith , 818 A.2d 494, 500

- 01 (Pa. 2003) (upholding

Kutnyak and its line of cases

, and “conclud[ing] that Rule 904 mandates that

an indigent p etitioner, whose first PCRA petition appears untimely, is entitled

to the assistance of counsel in order to determine whether any of the

exceptions to the one

- year time limi tation apply. ”); Commonwealth v.

Lindsey

, 687 A.2d 1144, 1144

- 45 (Pa. Super. 1996) (emphasizing that the

identical predecessor to Pa.R.Crim.P. 904 (C) requires that a PCRA petitioner

be appointed counsel for his or her first PCRA petition

, regardless of the merits

of the claims).

Based on the foregoing

, the PCRA court in the instant case erred in

failing to appoint Kistler PCRA counsel and determining that “ the absence of a

cognizable claim under the PCRA does not require the appointment of

counsel. ” PCRA Court Opinion, 1/5/18, at 9; see also Kutnyak

, supra

.

Hence, we v acate the PCRA court’s Order and remand for the appointment of

counsel , who may then file a counseled PCRA petition on Kistler’s behalf

.

Further, on remand, the PCRA court must initially determine whether Kistler

is still eligible for PCRA relief. See 42 Pa.C.S.A. § 9543(a)(1)(i).

Order vacated . Case remanded for appointment of counsel. Superior

Court jurisdiction relinquished.J

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-

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/31/18