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Commonwealth v. Kutnyak

Order denying post conviction petition vacated; even though petition was not so titled, it should have been treated as a PCRA petition since PCRA was the exclusive remedy available to defendant; there is no requirement that a petition utilize the standard PCRA form; court should not have evaluated the merits of the petition without first appointing counsel to represent petitioner.

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�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., *fn1 of its intent to dismiss the petition without a hearing. This timely pro se appeal followed.

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