J-S18035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ERIC J. WAGNER

Appellant No. 2079 EDA 2014

Appeal from the Order June 18, 2014

In the Court of Common Pleas of Lehigh County

Criminal Division at No(s): CP-39-CR-0005349-2010

 CP-39-CR-0005350-2010

 CP-39-CR-0005351-2010

 CP-39-CR-0005352-2010

 CP-39-CR-0005354-2010

 CP-39-CR-0005356-2010

 CP-39-CR-0005357-2010

 CP-39-CR-0005359-2010

BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

JUDGMENT ORDER BY MUNDY, J.: FILED APRIL 02, 2015

Appellant, Eric J. Wagner, appeals pro se from the June 18, 2014 order 

dismissing his “Petition for Pre-Confinement Credit.” After careful review, 

we vacate and remand with instructions.

On May 12, 2012, the trial court imposed an aggregate sentence of 

four to eight years’ imprisonment, plus seven years’ probation, following a 

negotiated guilty plea to three counts of possession with intent to deliver.1 

On May 18, 2012, Appellant filed a timely post-sentence motion, which the 

____________________________________________

1 35 P.S. § 780-113(a)(30).
J-S18035-15

- 2 -

trial court granted on June 22, 2012, awarding Appellant certain credit for 

time served. Appellant did not file a direct appeal with this Court.

On June 16, 2014, Appellant filed the instant pro se “Petition for PreConfinement Credit,” asking the trial court to award him additional time 

credit for time spent while under house arrest. Appellant’s Petition for PreConfinement Credit, 6/16/14, at 3. This Court has held that a motion 

requesting credit for time served is to be treated as a petition under the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. See 

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

“[a] challenge to the trial court’s failure to award credit for time spent in 

custody prior to sentencing involves the legality of sentence ... [and i]ssues 

concerning the legality of sentence are cognizable under the PCRA[]”) 

(citations omitted). A PCRA petitioner is entitled to the appointment of 

counsel in his or her first petition, even if it may appear untimely on its face. 

Commonwealth v. Stout, 978 A.2d 984, 988 (Pa. Super. 2009); 

Pa.R.Crim.P. 904(C). Additionally, we have held “where [a] ... first-time 

PCRA petitioner was denied his right to counsel ... 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).

Here, the record reveals that Appellant’s pro se petition was the first 

filing Appellant submitted after the trial court granted his post-sentence 
J-S18035-15

- 3 -

motion on June 22, 2012. Furthermore, the record reveals that the trial 

court did not treat this as a PCRA petition, nor did it appoint counsel. 

Therefore, on remand, the trial court shall treat said filing as a first PCRA 

petition and appoint counsel under Rule 904(C).

Based on the foregoing, we conclude the trial court erred when it did 

not treat Appellant’s pro se “Petition for Pre-Confinement Credit” as his first 

PCRA petition and appoint counsel. Accordingly, the trial court’s June 18,

2014 order is vacated, and the case is remanded with instructions, 

consistent with this judgment order.

Order vacated. Case remanded with instructions. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/2/2015