J-S61022-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT VANGIESON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1356 EDA 2018

Appeal from the PCRA Order April 17, 2018

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

No(s): CP-45-CR-0002841-2012

BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 29, 2018

Robert Vangieson appeals, pro se and in forma pauperis (“IFP”), from 

the order that dismissed his petition for a writ of habeas corpus as an untimely 

petition for relief under the Post Conviction Relief Act (“PCRA”). We vacate 

the order and remand for further proceedings consistent with this 

memorandum.

The PCRA court summarized the history of this case as follows.

On March 20, 2013, Appellant pleaded guilty to simple 

assault and terroristic threats. On June 6, 2013, Appellant was 

sentenced to 12 to 24 months for simple assault and 12 to 24 

months for terroristic threats. Said sentences were run 

consecutive to a sentence Appellant was serving on a 

Northampton County case for an aggregate term of 74 to 150 

months. Appellant received a time credit of 16 days. Appellant 

did not file post-sentence motions or a direct appeal of his 

sentence.

On August 18, 2016, Appellant filed his first, pro se “Motion 

for Time Credit.” On August 26, 2016, said motion was denied by 

order of th[e trial] court, stating Appellant’s time credit had been 
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correctly calculated and th[e trial] court was without jurisdiction 

to modify Appellant’s sentence as said motion was untimely. . . . 

Appellant did not appeal [the] decision.

On March 23, 2018, Appellant filed his second, pro se

“Motion for Time Credit” and an accompanying “Petition for 

Habeas Corpus Relief.” We treated said motion and petition as a

petition for [PCRA relief] . . . . Accordingly, as Appellant’s PCRA 

petition was untimely, we issued a notice of intent to dismiss 

without hearing pursuant to Pennsylvania Rule of Criminal 

Procedure 907 on March 28, 2018.

On April 6, 2018, Appellant filed a response to our notice of 

intent to dismiss. However, Appellant not having presented any 

new or additional information to the court in his response that 

would overcome the jurisdictional timeliness requirements of a 

PCRA [petition], [the court] denied Appellant’s petition by order 

dated April 17, 2018. 

PCRA Court Opinion, 5/24/18, at 1-2 (unnecessary capitalization omitted).

Appellant filed a timely notice of appeal, and both Appellant and the 

PCRA court complied with Pa.R.A.P. 1925. Appellant presents two questions 

on appeal:

I. Did the court below err as a matter of law when it converted 

Appellant’s motion for time served into a PCRA petition?

II. Did the court below err as a matter of law when it failed to 

grant Appellant the proper credit for time served?

Appellant’s brief at 4 (unnecessary capitalization omitted).

We begin our review with an examination of the applicable law. The 

first principle of note is that “the PCRA subsumes all forms of collateral relief, 

including habeas corpus, to the extent a remedy is available under such 

enactment.” Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007). 

Indeed, “any motion filed after the finality of a sentence that raises an issue 
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that can be addressed under the PCRA is to be treated as a PCRA petition.” 

Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.Super. 2013). “An 

appellant’s challenge to the trial court’s failure to award credit for time spent 

in custody prior to sentencing involves the legality of sentence. Issues 

concerning the legality of sentence are cognizable under the PCRA.”1 

Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.Super. 2004) (citations 

omitted). Accordingly, Appellant’s first motion for time credit filed in 2016 

should have been treated as his first PCRA petition, and his 2018 habeas 

corpus petition/time credit motion should have been treated as his second 

PCRA petition.2 

The second relevant rule of law is that a PCRA petitioner is entitled to 

the assistance of counsel in litigating his first petition. Commonwealth v. 

Roane, 142 A.3d 79, 100 (Pa.Super. 2016). Hence, “before the trial court 

disposes of a post conviction petition, it must first make a determination as to 

the petitioner’s indigence and if the petitioner is indigent, the court must 

appoint counsel to assist in the preparation of said petition.” Commonwealth 

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1 This is to be contrasted with a claim that the Department of Corrections 

made an error in applying court-ordered time credit to a sentence, which is 

addressed by an action brought in the Commonwealth court rather than 

through the PCRA. See, e.g., Commonwealth v. Heredia, 97 A.3d 392, 

394-95 (Pa.Super. 2014).

2

It appears that the PCRA court recognized this, as its Rule 1925(a) statement 

authored for this appeal includes “SECOND PCRA PETITION APPEAL” in its 

caption. 
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v. Hampton, 718 A.2d 1250, 1253 (Pa.Super. 1998) (internal quotation 

marks and emphasis omitted). Further, if an indigent PCRA petitioner’s first 

petition was adjudicated without counsel having been appointed, he is entitled 

to appointed counsel in his subsequent PCRA proceeding. See 

Commonwealth v. Davis, 563 A.2d 932, 933 (Pa.Super. 1989). 

Third, although Appellant does not challenge the denial of his right to 

counsel, this Court has held 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.” Commonwealth v. Stossel, 17 A.3d 1286, 1290 

(Pa.Super. 2011).

Finally, the apparent untimeliness of a petition does not render harmless 

the failure to appoint counsel. See, e.g., Commonwealth v. Smith, 818 

A.2d 494, 501 (Pa. 2003) (“[A]n indigent petitioner, whose first PCRA appears 

untimely, is entitled to the assistance of counsel in order to determine whether 

any of the exceptions to the one-year time limitation appl[ies].”); 

Commonwealth v. Kutnyak, 781 A.2d 1259, 1262 (Pa.Super. 2001) 

(holding it was error to dismiss the PCRA petition before appointing counsel, 

“despite any apparent untimeliness of the petition or the apparent noncognizability of the claims presented”).

Both Appellant’s first and second motions for time credit were dismissed 

without the appointment counsel or a determination of his financial status. 
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According to the trial court docket, Appellant has been incarcerated since at 

least January 2014. He is proceeding IFP on this appeal. Thus, it appears 

that Appellant is indigent and has not yet been offered the assistance of 

counsel to pursue his PCRA claims. Therefore, because “[t]he denial of PCRA 

relief cannot stand unless the petitioner was afforded the assistance of 

counsel,” Commonwealth v. Albrecht, 720 A.2d 693, 699 (Pa. 1998), 

remand is necessary for appointment of counsel to assist Appellant in litigating 

his petition. 

Order vacated. Case remanded for further proceedings consistent with 

this memorandum. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/29/18