Commonwealth v. Kutnyak, 781 A.2d 1259 (Pa. Super. Ct. 2001). · Go Syfert
Commonwealth v. Kutnyak, 781 A.2d 1259 (Pa. Super. Ct. 2001). Cases Citing This Book View Copy Cite
158 citation events (158 in the last 25 years) across 3 distinct courts.
Strongest positive: Com. v. Daniels, J. (pasuperct, 2026-06-04)
Treatment trajectory · 2002 → 2026 · click a year to view as-of
2002 2014 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Com. v. Daniels, J.
Pa. Super. Ct. · 2026 · signal: see · quote attribution · 1 verbatim quote · confidence high
as this is appellant'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.
examined Cited as authority (verbatim quote) Com. v. Perez, J.
Pa. Super. Ct. · 2020 · signal: see · quote attribution · 1 verbatim quote · confidence high
simply because the merits of the pcra petition cannot be considered due to previous litigation, waiver, or an untimely filing, there is no alternative basis for relief outside the framework of the pcra.
discussed Cited as authority (verbatim quote) Com. v. Watson, J.
Pa. Super. Ct. · 2018 · signal: see · quote attribution · 1 verbatim quote · confidence high
the denial of pcra relief cannot stand unless the petitioner was afforded the assistance of counsel.
discussed Cited as authority (verbatim quote) Com. v. Hackworth, S.
Pa. Super. Ct. · 2018 · signal: see · quote attribution · 1 verbatim quote · confidence high
the denial of pcra relief cannot stand unless the petitioner was afforded the assistance of counsel.
discussed Cited as authority (verbatim quote) Com. v. Codner, G.
Pa. Super. Ct. · 2015 · signal: see · quote attribution · 1 verbatim quote · confidence high
the pcra is the exclusive vehicle for obtaining post-conviction collateral relief.
cited Cited as authority (rule) Com. v. Henderson, A.
Pa. Super. Ct. · 2024 · confidence medium
“This is true regardless of the manner in which the petition is titled.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001) (citation omitted).
discussed Cited as authority (rule) Com. v. Jeffery, E.
Pa. Super. Ct. · 2024 · confidence medium
Challenges to the legality of sentence may be raised on direct appeal or pursuant to the PCRA, which is the “exclusive vehicle for obtaining post-conviction collateral relief.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001); see 42 Pa.C.S.A. § 9543(a)(2)(vii).
discussed Cited as authority (rule) Com. v. Ross, S.
Pa. Super. Ct. · 2024 · confidence medium
The fact that the merits of an otherwise-cognizable claim “cannot be considered due to previous litigation, waiver, or an untimely filing” does not mean that there is an “alternative basis for relief outside the framework of the PCRA.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001).
discussed Cited as authority (rule) Com. v. Maddrey, D.
Pa. Super. Ct. · 2024 · confidence medium
A remedy is not unavailable under the PCRA “[s]imply because the merits of the PCRA petition cannot be considered due to previous litigation, waiver, or an untimely filing[.].” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001).
discussed Cited as authority (rule) Com. v. Irizarry, A.
Pa. Super. Ct. · 2024 · confidence medium
It is well-settled 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); see also Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000) (defendant’s “motion to correct illegal sentence” treated as PCRA petition); Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001) (PCRA is “exclusive vehicle for obtaining post-conviction collateral relief.”); 42 Pa.C.S.A. § 9542.
discussed Cited as authority (rule) Com. v. Jones, L.
Pa. Super. Ct. · 2023 · confidence medium
Appellant alleged that in April of 2020, Holt saw a photograph of Appellant that his cousin had posted on social media “with the caption, ‘Free my cousin L[a]var Jones[.’]” See Appellant’s Amended Motion for Post ____________________________________________ his petition or motion as a writ of habeas corpus”) (footnote omitted); Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001) (the PCRA is “the exclusive vehicle for obtaining post-conviction collateral relief . . . regardless of the manner in which the petition is titled.”) (citation omitted). 5 Notably, Attorney H…
discussed Cited as authority (rule) Com. v. Quiles-Lopez, M.
Pa. Super. Ct. · 2022 · confidence medium
As such, Appellant was entitled to the appointment of counsel. -7- J-S23012-22 collateral relief.” Pa.R.Crim.P. 904(C) (emphasis added); see also Commonwealth v. Smith, 818 A.2d 494, 501 (Pa. 2003) (holding indigent defendant is entitled to counsel for first PCRA petition, even if it is untimely); Commonwealth v. Stossell, 17 A.3d 1286, 1288 (Pa. Super. 2011) (“Even though his petition was facially untimely, Stossel was still entitled to representation as this was his first PCRA petition and he indicated that he was unable to afford counsel); Commonwealth v. Kutnyak, 781 A.2d 1259, 1262 (P…
discussed Cited as authority (rule) Com. v. Geathers, J.
Pa. Super. Ct. · 2022 · confidence medium
“Simply because the merits of the PCRA petition cannot be considered due to previous litigation, waiver, or an untimely filing, there is -4- J-S31009-22 no alternative basis for relief outside the framework of the PCRA.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001).
discussed Cited as authority (rule) Com. v. Abney, C.
Pa. Super. Ct. · 2022 · signal: cf. · confidence medium
Cf. Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001) (writ of habeas corpus not available outside framework of PCRA, where merits of PCRA petition cannot be considered due to, for example, previous litigation). -4-
discussed Cited as authority (rule) Com. v. Tidd, B.
Pa. Super. Ct. · 2021 · confidence medium
Commonwealth v. Pitts, 981 A.2d 875 , 876 n.1 (Pa. 2009) (overruled on other grounds by Commonwealth v. Bradley, 2021 WL 4877232 , at *15 (Pa. Oct. 20, 2021) (“we now . . . abandon Pitts’s . . . ____________________________________________ 5 Contrary to the PCRA court’s determination, an indigent PCRA petitioner is entitled to representation of counsel on a first PCRA petition “despite any apparent untimeliness of the petition or the apparent non-cognizability of the claims presented.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1262 (Pa. Super. 2001) (emphasis added). 6 Anders v. Califo…
discussed Cited as authority (rule) Com. v. Victor, W.
Pa. Super. Ct. · 2021 · confidence medium
“This is true regardless of the manner in which the petition is titled.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001). ____________________________________________ 7 The appeal period expired on March 9, 2020, as the thirtieth day, March 7, 2020, fell on a Saturday. 1 Pa.C.S.A. § 1908. -6- J-S24005-21 Our review of Appellant’s Motion for Extension of time to file Post-Trial Motions indicates that Appellant arguably raised a claim that his counsel had been ineffective for failing to file a post-sentence motion despite Appellant’s request that counsel do so.
discussed Cited as authority (rule) Com. v. McGee, R.
Pa. Super. Ct. · 2021 · confidence medium
See McGee’s Brief at 2 (“In 2000, he filed an action pursuant to the PCRA, but to no avail.”). -6- J-S15024-21 Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000) (defendant’s “motion to correct illegal sentence” must be treated as a PCRA petition); Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001) (the PCRA is “the exclusive vehicle for obtaining post-conviction collateral relief . . . regardless of the manner in which the petition is titled.”).
discussed Cited as authority (rule) Com. v. Crumpton, M.
Pa. Super. Ct. · 2021 · confidence medium
Our Supreme Court has clarified “that the PCRA subsumes the remedy of habeas corpus with respect to remedies offered under the PCRA and that any petition seeking relief under the PCRA must be filed within one year of final judgment.” Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa. 1998). “[T]he writ of habeas corpus is not available as an alternative basis for relief when, under the framework of the PCRA, a petition would be considered previously litigated, waived or untimely.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001) (citation omitted).
discussed Cited as authority (rule) Com. v. Dixon, C.
Pa. Super. Ct. · 2021 · confidence medium
This is true regardless of the manner in which the petition is titled.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001); see also 42 Pa.C.S.A. § 9542 (stating that “[t]he action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis.”). -3- J-S04038-21 In his “Motion for Remand/Newly Discovered Evidence,” Dixon cites the PCRA; alleges that he discovered new evidence that pr…
discussed Cited as authority (rule) Com. v. Perez, F.
Pa. Super. Ct. · 2021 · confidence medium
The PCRA is “the exclusive vehicle for obtaining post-conviction collateral relief. . . regardless of the manner in which the petition is titled.” -3- J-S01034-21 Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001).
discussed Cited as authority (rule) Com. v. Rankine, D.
Pa. Super. Ct. · 2020 · confidence medium
We emphasize that the PCRA is “the exclusive vehicle for obtaining post-conviction collateral relief… regardless of the manner in which the petition is titled.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001).
discussed Cited as authority (rule) Com. v. Gerber, G., Jr.
Pa. Super. Ct. · 2020 · confidence medium
Of course, relief outside the framework of the PCRA is not available “simply because the merits of [a] PCRA [claim] cannot be considered due to previous litigation.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001). -7- J-S17011-20 protected liberty interest which would implicate her due process rights.
discussed Cited as authority (rule) Com. v. Hall, W.
Pa. Super. Ct. · 2020 · confidence medium
The PCRA is “the exclusive vehicle for obtaining post-conviction collateral relief ... regardless of the manner in which the petition is titled.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001).
discussed Cited as authority (rule) Com. v. Johnson, J.
Pa. Super. Ct. · 2020 · confidence medium
Regardless of what Johnson called the filing, it was a first and timely- filed PCRA petition.6 See Commonwealth v. Kutnyak, 781 A.2d 1259 , 1261 ____________________________________________ 5 “In reviewing the propriety of the trial court’s dismissal of the petition, we are limited to determining whether the court’s findings are supported by the record and whether the order is free of legal error.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001). 6 A PCRA petition is timely if it is “filed within one year of the date the judgment [of sentence] becomes final.” 42 Pa.C…
discussed Cited as authority (rule) Com. v. Kelly, P.
Pa. Super. Ct. · 2020 · confidence medium
The PCRA is “the exclusive vehicle for obtaining post-conviction collateral relief… regardless of the manner in which the petition is titled.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001).
discussed Cited as authority (rule) Com. v. Cotton, L.
Pa. Super. Ct. · 2020 · confidence medium
“This is true regardless of the manner in which the petition is titled.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001) (citation omitted). -2- J-S12005-20 the possibility of parole upon a homicide defendant for a murder committed while the defendant was under eighteen years old.
discussed Cited as authority (rule) Com. v. Hromek, R., Jr.
Pa. Super. Ct. · 2020 · confidence medium
The PCRA is “the exclusive vehicle for obtaining post-conviction collateral relief … regardless of the manner in which the petition is titled.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001).
discussed Cited as authority (rule) Com. v. Hromek, R., Jr.
Pa. Super. Ct. · 2020 · confidence medium
The PCRA is “the exclusive vehicle for obtaining post-conviction collateral relief … regardless of the manner in which the petition is titled.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001).
discussed Cited as authority (rule) Com. v. Semple, S.
Pa. Super. Ct. · 2020 · confidence medium
“Simply because the merits of the PCRA petition cannot be considered due to previous litigation, waiver, or an untimely filing, there is no alternative basis for relief outside the framework of the PCRA.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001).
discussed Cited as authority (rule) Com. v. Carter, T.
Pa. Super. Ct. · 2020 · confidence medium
We begin by noting 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). “[A] defendant cannot escape the PCRA time-bar by titling his petition or motion as a writ of habeas corpus.” Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.Super. 2013). -3- J-S14010-20 “Simply because the merits of the PCRA petition cannot be considered due to previous litigation, waiver, or an untimely filing, there is no alternative basis for relief outside the framework o…
cited Cited as authority (rule) Com. v. Maldonado, S.
Pa. Super. Ct. · 2020 · confidence medium
“This is true regardless of the manner in which the petition is titled.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001) (citation omitted).
discussed Cited as authority (rule) Com. v. Kerns, S.
Pa. Super. Ct. · 2019 · confidence medium
See -8- J-S36008-19 Pa.R.Crim.P. 904; see also Commonwealth v. Albrecht, 720 A.2d 693 , 699 (Pa. 1999) (“The denial of PCRA relief cannot stand unless the petitioner was afforded the assistance of counsel.”); Commonwealth v. Kutnyak, 781 A.2d 1259, 1262 (Pa. Super. 2001) (holding that appellant is entitled to representation of counsel on first PCRA petition “despite any apparent untimeliness of the petition or the apparent non-cognizability of the claims presented.”) In this instance, both the court and Attorney Fielding improperly treated Kerns’ filing as an untimely post-sentence m…
discussed Cited as authority (rule) Com. v. Shick, R.
Pa. Super. Ct. · 2019 · confidence medium
Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002) (“the PCRA provides the sole means for obtaining collateral review, and [] any petition filed after the judgment of sentence becomes final will be treated as a PCRA petition”); Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001) (holding: “[a]ppellant's pro se petition, entitled “Notice of ____________________________________________ could have taken place” and “[i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable …
examined Cited as authority (rule) Com. v. Deutsch, G., Jr. (4×) also: Cited "see", Cited "see, e.g."
Pa. Super. Ct. · 2019 · confidence medium
Kutnyak, 781 A.2d at 1262 (concluding that appellant was entitled to counsel for his motion challenging the validity of his guilty plea, which must be considered a PCRA petition, “despite any apparent untimeliness of the petition or the apparent non- cognizability of the claims presented.”).
discussed Cited as authority (rule) Com. v. Kristman, R.
Pa. Super. Ct. · 2019 · confidence medium
See Commonwealth v. Smith, 818 A.2d 494, 498 (Pa. 2003) (stating that “[t]he rules of criminal procedure require the appointment of counsel in PCRA proceedings.”); Commonwealth v. Kutnyak, 781 A.2d 1259, 1262 (Pa. Super. 2001) (holding that an appellant is entitled to representation of counsel for a first PCRA petition, “despite any apparent untimeliness of the petition or the apparent non-cognizability of the claims presented”).
discussed Cited as authority (rule) Com. v. Coleman, T. (2×) also: Cited "see"
Pa. Super. Ct. · 2019 · confidence medium
Additionally, we note that “an unrepresented petitioner who is indigent has a right to court-appointed counsel to represent him on his first PCRA petition. ‘The denial of PCRA relief cannot stand unless the petitioner was afforded the assistance of counsel.’” Commonwealth v. Kutnyak, 781 A.2d 1259, 1262 (Pa. Super. 2001) (citations omitted).
cited Cited as authority (rule) Com. v. Preacher, J.
Pa. Super. Ct. · 2019 · confidence medium
Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001), citing Fahy, 727 A.2d at 223–224.
discussed Cited as authority (rule) Com. v. Litvinov, D.
Pa. Super. Ct. · 2019 · confidence medium
A return receipt indicates that the Administrative Office of Pennsylvania Courts received the filing on August 20, 2015, only fifteen days after this Court printed a docket -7- J-S65023-18 sheet in response to Litvinov’s inquiry as to the status of his appeal. 2 Well- settled law indicates that any collateral document requesting relief available under the PCRA will be treated as a PCRA petition. 42 Pa.C.S.A. § 9542; Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001).
discussed Cited as authority (rule) Com. v. Vangieson, R.
Pa. Super. Ct. · 2018 · confidence medium
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 non- cognizability of the claims presented”).
discussed Cited as authority (rule) Com. v. Miller, A.
Pa. Super. Ct. · 2018 · confidence medium
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 non-cognizability of the claims presented”). -5- J-S52036-18 Judgment Entered.
discussed Cited as authority (rule) Com. v. Major, J.
Pa. Super. Ct. · 2018 · confidence medium
In this regard, it bears emphasis that a “PCRA court’s order granting relief with regard to sentencing and denying all other claims [is] a final appealable order” even if ____________________________________________ a motion to modify sentence under Pa.R.Crim.P. 720 rather than a PCRA petition); Commonwealth v. Grafton, 928 A.2d 1112 (Pa. Super. 2007) (treating motion to modify sentence under extraordinary circumstances as a PCRA petition); Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001) (treating pro se motion as post-conviction relief petition “regardless of the manner…
examined Cited as authority (rule) Com. v. Kistler, P. (3×) also: Cited "see", Cited "see, e.g."
Pa. Super. Ct. · 2018 · confidence medium
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 petitioner, 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 limitation 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 counse…
cited Cited as authority (rule) Com. v. Washington, C.
Pa. Super. Ct. · 2018 · confidence medium
Id. at 1262 (internal citation omitted).
discussed Cited as authority (rule) Com. v. Smith, G.
Pa. Super. Ct. · 2018 · confidence medium
Simply because a petition is not considered because of previous litigation or waiver does not alter the PCRA’s coverage of such claims or make habeas corpus an alternative basis for relief.” Fahy, supra at 224 . -6- J-A05012-18 See also Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001) (same).
cited Cited as authority (rule) Com. v. Ford, H.
Pa. Super. Ct. · 2018 · confidence medium
The PCRA “is the exclusive vehicle for obtaining post-conviction relief … regardless of the manner in which a petition is titled.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001).
cited Cited as authority (rule) Com. v. Lawson, T.
Pa. Super. Ct. · 2018 · confidence medium
Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001).
discussed Cited as authority (rule) Com. v. Sikora, A.
Pa. Super. Ct. · 2018 · confidence medium
Again, in that motion, Appellant stated that he merely wanted to seek reconsideration of sentence, not file a PCRA petition.6 The court should have recognized that any request for reconsideration of sentence eight months after imposition of Appellant’s sentence was untimely,7 that the only way for Appellant to challenge his guilty plea was through a PCRA petition, 8 and that Appellant’s proposed filing of a motion for reconsideration would have required treatment under the PCRA anyway.9 While we are not suggesting that the PCRA court should have counseled Appellant against his plan of ____…
discussed Cited as authority (rule) Com. v. Fairweather, S.
Pa. Super. Ct. · 2018 · confidence medium
Regardless of what a defendant titles his petition, “the PCRA is the exclusive vehicle for obtaining post-conviction collateral relief.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001).
discussed Cited as authority (rule) Com. v. Mosser, T.
Pa. Super. Ct. · 2018 · confidence medium
See Commonwealth v. Kubis, 808 A.2d 196, 199 (Pa. Super. 2002) (explaining that the PCRA is the sole means for obtaining collateral review and any petition filed after judgment of sentence is final is treated as a PCRA petition); Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001) (treating the appellant’s motion as PCRA petition “regardless of the manner in which the petition is titled”); Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000) (approving the trial court’s determination that the appellant’s “motion to correct illegal sentence” was a PCRA _________…
discussed Cited as authority (rule) Com. v. Richardson, D.
Pa. Super. Ct. · 2017 · confidence medium
“Simply because the merits of the PCRA petition cannot be considered due to previous litigation, waiver, or an untimely filing, there is no alternative basis for relief outside the framework of the PCRA.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001). *Retired Senior Judge assigned to the Superior Court.
Retrieving the full opinion text from the archive…
COMMONWEALTH of Pennsylvania, Appellee
v.
Mark Allen KUTNYAK, Appellant
Superior Court of Pennsylvania.
Aug 13, 2001.
781 A.2d 1259
2001 Pa. Super. LEXIS 2057
Mark A. Kutnyak, appellant, pro se., Adrienne Duvall, Assistant District Attorney, Norristown, for Com., appellee.
Hudock, Stevens, Popovich.
Cited by 112 opinions  |  Published
HUDOCK, J.

¶ 1 Appellant appeals, pro se, the order entered October 11, 2000, disposing of his first petition brought pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. sections 9541-46. Appellant’s petition was denied without a hearing. For the reasons that follow, we vacate and remand.

¶ 2 On September 15, 1995, Appellant entered an open plea to aggravated assault, aggravated indecent assault, and criminal trespass. Appellant waived his right to counsel and entered the pleas pro se. The trial court sentenced Appellant on November 17, 1995, to two and one-half to ten years’ imprisonment. No direct appeal was filed.

¶ 3 Appellant filed the instant petition on September 8, 2000, pro se. The court denied relief on October 11, 2000, without appointing counsel to represent Appellant, and without issuing notice pursuant to Pa.R.Crim.P. 1507, 42 Pa.C.S.A., [1] of its intent to dismiss the petition without a hearing. This timely pro se appeal followed.

[*1261] ¶ 4 In reviewing the propriety of the PCRA court’s dismissal of the petition, we are limited to determining whether the court’s findings are supported by the record and whether the order is free of legal error. Commonwealth v. Allen, 557 Pa. 135, 142, 732 A.2d 582, 586 (1999). On appeal, Appellant argues the court improperly denied his petition without appointing counsel and without providing Rule 1507 notice of its intent to dismiss without a hearing. Appellant also argues the merits of the numerous issues contained in his petition.

¶ 5 We first observe that Appellant’s pro se petition, entitled “Notice of Post-Sentence Motion Challenging Validity of Guilty Plea to Permit Withdrawal, Nunc Pro Tunc,” must be treated as a PCRA petition, since the PCRA is the exclusive vehicle for obtaining post-conviction collateral relief. Commonwealth v. Bronshtein, 561 Pa. 611, 614 n. 3, 752 A.2d 868, 869-70 n. 3 (2000). This is true regardless of the manner in which the petition is titled. Commonwealth v. Hutchins, 760 A.2d 50, 52 n. 1 (Pa.Super.2000). Indeed, the PCRA statute specifically provides for such treatment:

The action established in this sub-chapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis.

42 Pa.C.S.A. § 9542. Simply because the merits of the PCRA petition cannot be considered due to previous litigation, waiver, or an untimely filing, there is no alternative basis for relief outside the framework of the PCRA. See, generally, Commonwealth v. Fahy, 558 Pa. 313, 332, 737 A.2d 214, 223-224 (1999) (citing Commonwealth v. Chester, 557 Pa. 358, 733 A.2d 1242 (1999)).

¶ 6 The court below first states the petition appears to most closely resemble a post-sentence motion and proceeds to evaluate the merits of the petition on this basis, prior to finding the petition “cannot” be considered a PCRA petition. PCRA Court Opinion, 12/22/00, at 2-4. However, as the only avenue of relief available to Appellant nearly five years after his sentencing is through the PCRA, the court below should have evaluated the filing solely as a first PCRA petition. See Bronshtein, Hutchins, supra.

¶ 7 We next observe that, contrary to the implication contained in the PCRA court’s opinion, there is no requirement that a petitioner utilize the standard PCRA petition form provided for pro se petitioners, although petitioners may certainly take advantage of using the forms to assist them in the fifing of their petitions. The court states in its opinion that “the Defendant has completely failed to comply with any of the rules governing PCRA claims or to utilize a standard form.” PCRA Court Opinion, 12/22/00, at 5 (emphasis added).

¶ 8 Appellant cites the case of Commonwealth v. Jerman, 762 A.2d 366 (Pa.Super.2000), in support of his argument that the court erred in stating that he failed to use a particular form for the petition. Appellant’s Brief, at 35. In Jerman, the clerk of courts returned the fifing to the petitioner, without docketing the petition, because it was “not the correct paperwork.” Id. at 367 (footnote omitted). The petitioner filed a second PCRA petition utilizing the prison-supplied form; however, the second petition was now untimely filed due to the delay. Id. at 368. This Court held that “[t]here is no requirement that a PCRA petition be on any particular form” and considered the second petition as an extension of the first, relating the fifing date back to that of the first petition.[*1262] Id. We further held that the court should have appointed counsel and considered the merits of the petition. Id. at 369. In the case at hand, the court erroneously concluded, in part, that Appellant failed to file the petition on the “required” form.

¶ 9 Therefore, we could vacate and remand on this basis alone, as this conclusion by the court is in error. However, we will also address statements made by both the court and the Commonwealth to the effect that because the petition at issue “does not meet the requirements” of a PCRA petition, it may not be considered a PCRA petition. The court analyzed the merits of the Appellant’s filing and stated it failed to meet the requirements of a post-sentence motion, direct appeal, or collateral attack. PCRA Court Opinion, 12/22/00, at 1. Curiously, the court states “[t]he ‘Petition’ cannot be considered to be and does not meet the requirements for post conviction relief.” Id. at 4 (emphasis added). The court further found that “since there were no valid PCRA claims before the court, there was no basis to appoint counsel.” Id. at 5.

¶ 10 To the contrary, the petition must be considered a PCRA petition, and counsel must be appointed to represent Appellant. 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. See also Commonwealth v. Quail, 729 A.2d 571 (Pa.Super.1999). “The denial of PCRA relief cannot stand unless the petitioner was afforded 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.

¶ 11 Therefore, as this is Appellant’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 apparent untimeliness of petition). See also Commonwealth v. Guthrie, 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.1998)). Therefore, we are constrained to vacate and remand this matter for the appointment of counsel to represent Appellant.

¶ 12 Finally, we note this petition was dismissed without the requisite twenty days’ notice pursuant to Pa.R.Crim.P. 1507, 42 Pa.C.S.A. [2] On appeal, Appellant objects to this lack of notice. Appellant’s Brief, at 6, 33. This Court has previously held that compliance with Rule 1507 is mandatory. Commonwealth v. Feighery, 443 Pa.Super. 327, 661 A.2d 437, 439 (1995). However, in Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911 (2000), our Supreme Court found the PCRA court committed no reversible error in failing to give notice under an analogous notice pro[*1263] vision. The Supreme Court recognized the merit of Pursell’s argument that the court erred in failing to provide him with notice of its intent to dismiss without a hearing, but refused to provide relief on that basis because it found Pursell’s second PCRA petition untimely filed. As Pur-sell failed to invoke the jurisdiction of the court by pleading the applicability of any time of filing exception, he was not entitled to relief. Id. at 225 n. 7, 749 A.2d at 917 n. 7 (2000).

¶ 13 Here, it appears that Appellant’s petition may likewise be untimely; if so, the lack of notice would not itself be a basis upon which to reverse the decision, based on Pursell. However, we urge the court below to observe the procedural requirements in issuing notice prior to dismissal of the petition, should the court on remand wish to again dismiss the petition without a hearing.

¶ 14 Accordingly, having found that Appellant was entitled to court appointed counsel for his first PCRA petition, we “vacate the order dismissing Appellant’s petition and remand for the appointment of counsel and such further proceedings as are appropriate under the PCRA.” Jerman, 762 A.2d at 369.

¶ 15 Order vacated. Remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

¶ 16 STEVENS, J. concurs in the result.

1

. The Rules of Criminal Procedure were subsequently renumbered as of April 1, 2001, and the material at Pa.R.Crim.P. 1507 may now be found at Pa.R.Crim.P. 907.

2

. See footnote 1, supra.