J-A23032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. JAMES L. ZUCCHER Appellant No. 1730 WDA 2014

Appeal from the Judgment of Sentence October 1, 201 4 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0000478-2014

BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J

. JUDGMENT ORDER BY GANTMAN, P.J.: FILED AUGUST 18, 2015 Appellant, James L. Zuccher, appeals from the judg ment of sentence entered in the Mercer County Court of Common Pleas, following his nolo contendere plea to driving under the influence (“DUI”) and fl eeing or attempting to elude police (“fleeing/eluding”) (75 Pa.C.S.A. §§ 3802; 3733). On March 9, 2014, police received a report that a m an who appeared to be intoxicated was lying down in the parking lot of a bar and then got into his vehicle and drove away. Police followed the vehicl e and activated lights to stop, but the man did not immediately pull over. U pon the stop, Officer Moore detected an odor of alcohol on the driver’s b reath and placed the driver under arrest for DUI. Officer Moore recover ed a driver’s license identifying the man as Appellant. Appellant attemp ted to retain a public defender, but his request was denied based on finan cial ineligibility.J-A23032-15

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Nevertheless, the court appointed stand-by counsel. On August 12, 2014, Appellant pled nolo contendere to DUI and fleeing/eluding. The court sentenced Appellant on October 1, 2014, to 5 days t o 6 months’ imprisonment for DUI and a concurrent 6 months’ pro bation for fleeing/eluding. Appellant timely filed a pro se notice of appeal on October 20, 2014, and a praecipe to proceed in forma pauperis (“IFP”) that the court denied. On October 29, 2014, the court ordered App ellant to file a Pa.R.A.P. 1925(b) concise statement; Appellant did not comply

. Pennsylvania Rule of Criminal Procedure 122 provide s: Rule 122. Appointment of Counsel (A) Counsel shall be appointed: * * * (2) in all court cases, prior to the preliminary h earing to all defendants who are without financial resourc es or who are otherwise unable to employ counsel; (3) in all cases, by the court, on its own motion, when the interests of justice require it. (B) When counsel is appointed, * * * (2) the appointment shall be effective until final judgment, including any proceedings upon direct app eal. Pa.R.Crim.P. 122(A), (B). Under paragraph (A)(3), the court has authority to appoint counsel regardless of eligibility when t he interests of justice require it. Pa.R.Crim.P. 122, Comment . As well, “when a petitioner avers a prima facie case of poverty and an inability to pay fees and c osts, the trial court must hold a hearing before it may deny IFP st atus.” Commonwealth v. Lepre , 18 A.3d 1225 (Pa.Super. 2011) (reversing denial o f IFP status and remanding for hearing where petitioner stated inabi lity to pay fees/costs andJ-A23032-15

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his alleged debt obligations, child support, taxes, and living expenses presented prima facie case of poverty when weighed against monthly gross income of $1,600). Instantly, the Public Defender’ s Office denied Appellant’s request for counsel, based on financial ineligibili ty. The court also denied Appellant IFP status, without a hearing. In his IF P petition, Appellant alleged he earns only $1,800/month in social security and $ 270/month in pension and annuities. Appellant’s rent and utilities tota l almost $1,000/month. Appellant owes $250/month in loans and has other li ving expenses. Appellant maintained in his IFP petition, appellate brief, and at oral argument, his inability to pay fees/costs. Appella nt’s brief suggests he wants counsel. Further, the record shows a potenti al issue implicating the legality of Appellant’s sentence now pending before this Court, involving merger of sentences for DUI and fleeing/eluding (wh ile DUI). See Commonwealth v. Kimmel , 2014 PA Super 186 (Pa.Super. 8/29/14), withdrawn , 2014 Pa.Super. LEXIS 3963 (Pa.Super. 10/10/14) ( en banc ) ( per curiam ). In light of Appellant’s limited income, allegat ions of indigency, and this Court’s pending en banc decision, we remand for reconsideration of Appellant’s IFP status, the appointment of counsel in the interests of justice, an opportunity to file a Rule 1925(b) statement, an d pursue the appeal. See Pa.R.Crim.P. 122(A)(3), Lepre, supra

. Case remanded with instructions. Panel jurisdicti on is retained.