Com. v. Caldwell, J. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JEROME CALDWELL, : No. 3196 EDA 2014
:
Appellant :
Appeal from the PCRA Order, September 30, 2014,
in the Court of Common Pleas of Northampton County
Criminal Division at Nos. CP-48-CR-0001405-2012,
CP-48-CR-0001410-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 16, 2015
Jerome Caldwell appeals from the order of September 30, 2014,
denying his PCRA1 petition. After careful review, we vacate and remand for
further proceedings.
On September 28, 2012, appellant entered a guilty plea to two counts
of delivery of heroin. Additional charges were nol prossed as part of the
plea agreement. The trial court imposed the mandatory minimum sentence
of 2-4 years’ incarceration on each count, to be served consecutively for an
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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aggregate sentence of 4-8 years.2 Appellant did not file post-sentence
motions or an appeal.
On August 26, 2014, appellant filed a pro se PCRA petition alleging,
inter alia, that application of the mandatory minimum sentence was illegal
pursuant to Alleyne v. United States, __ U.S. __, 133 S. Ct. 2151 (2013).
Appellant also complained that trial counsel failed to furnish him with a copy
of the transcript. Appellant requested reinstatement of his direct appeal
rights nunc pro tunc. Appellant did not request an attorney be appointed,
but did ask for stand-by counsel. (PCRA petition, 8/26/14 at 7 ¶16; docket
#25.)
On September 30, 2014, the PCRA court denied appellant’s petition
without appointing counsel or issuing Rule 907 notice. 3 The PCRA court
concluded that appellant’s petition was untimely filed and that he failed to
plead and prove any exception to the PCRA’s jurisdictional one-year time
bar. Appellant filed a timely pro se notice of appeal on October 23, 2014.
Appellant also filed a pro se statement of matters complained of on appeal
pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. Therein, appellant
requested that counsel be appointed to represent him on the appeal.
2
See 18 Pa.C.S.A. § 7508(a)(7)(i) (“when the aggregate weight of the
compound or mixture containing the heroin involved is at least 1.0 gram but
less than 5.0 grams the sentence shall be a mandatory minimum term of
two years in prison and a fine of $5,000….”).
3
See Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A. (“Disposition Without Hearing”).
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(Docket #28.) On November 18, 2014, the PCRA court granted appellant
leave to proceed in forma pauperis and appointed Brian Monahan, Esq., to
represent appellant on the instant appeal. On December 3, 2014, the PCRA
court filed a Rule 1925(a) opinion, addressing the issues raised in appellant’s
pro se Rule 1925(b) statement.
As stated above, this is appellant’s first PCRA petition. “It is
well-established that a first-time PCRA petitioner whose petition appears
untimely on its face is entitled to representation for assistance in
determining whether the petition is timely or whether any exception to the
normal time requirements is applicable.” Commonwealth v. Ramos, 14
A.3d 894, 895 (Pa.Super. 2011), citing Commonwealth v. Guthrie, 749
A.2d 502, 504 (Pa.Super. 2000); Commonwealth v. Stout, 978 A.2d 984,
988 (Pa.Super. 2009). See also Pa.R.Crim.P., Rule 904(C), 42 Pa.C.S.A.
(“when an unrepresented defendant satisfies the judge that the defendant is
unable to afford or otherwise procure counsel, the judge shall appoint
counsel to represent the defendant on the defendant's first petition for post-
conviction collateral relief.”) (emphasis added); Commonwealth v.
Robinson, 970 A.2d 455, 457 (Pa.Super. 2009) (en banc) (“Pursuant to
the rules of criminal procedure and interpretive case law, a criminal
defendant has a right to representation of counsel for purposes of litigating a
first PCRA petition through the entire appellate process.”) (citations
omitted).
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As stated above, appellant indicated that he wished to proceed pro se
“with stand-by counsel.” However, it was incumbent upon the PCRA court to
conduct a waiver-of-counsel colloquy to determine whether appellant
knowingly and understandingly waived his right to representation by counsel
on a first PCRA petition. As this court stated in Commonwealth v.
Figueroa, 29 A.3d 1177 (Pa.Super. 2011):
Recently, in Commonwealth v. Stossel, 17 A.3d
1286 (Pa.Super. 2011), this Court held that a
petitioner's checking of a box in the standardized
DC–198 form utilized for pro se PCRA petitions,
which indicated that the petitioner did not want the
court to appoint counsel, did not remove a court's
obligation to conduct a Grazier[4] colloquy to
determine if the petitioner was knowingly,
intelligently, and voluntarily relinquishing his right to
counsel. Citing our decision in [] Robinson,
[supra], we remanded for the PCRA court to conduct
a Grazier colloquy utilizing Pa.R.Crim.P.
121(A)(2)(a), (d), (e) and (f).
Id. at 1181.5
4
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
5
Rule 121. Waiver of Counsel
(A) Generally.
(1) The defendant may waive the right to be
represented by counsel.
(2) To ensure that the defendant's waiver of the
right to counsel is knowing, voluntary, and
intelligent, the judge or issuing authority, at a
minimum, shall elicit the following information from
the defendant:
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(a) that the defendant understands that
he or she has the right to be represented
by counsel, and the right to have free
counsel appointed if the defendant is
indigent;
(b) that the defendant understands the
nature of the charges against the
defendant and the elements of each of
those charges;
(c) that the defendant is aware of the
permissible range of sentences and/or
fines for the offenses charged;
(d) that the defendant understands that
if he or she waives the right to counsel,
the defendant will still be bound by all
the normal rules of procedure and that
counsel would be familiar with these
rules;
(e) that the defendant understands that
there are possible defenses to these
charges that counsel might be aware of,
and if these defenses are not raised at
trial, they may be lost permanently; and
(f) that the defendant understands that,
in addition to defenses, the defendant
has many rights that, if not timely
asserted, may be lost permanently; and
that if errors occur and are not timely
objected to, or otherwise timely raised
by the defendant, these errors may be
lost permanently.
Pa.R.Crim.P., Rule 121(A)(1), (2), 42 Pa.C.S.A. See Robinson, 970 A.2d at
459-460 (“we conclude that if a PCRA defendant indicates a desire to
represent himself, it is incumbent upon the PCRA court to elicit information
from the defendant that he understands the items outlined in Pa.R.Crim.P.
121(A)(2)(a), (d), (e), and (f).”).
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“Specifically, we reasoned [in Robinson] that
because a first time PCRA petition ‘may well be the
defendant's sole opportunity to seek redress[,]’ an
on-the-record colloquy was necessary to ascertain
whether the petitioner ‘fully understands the
ramifications of a decision to proceed pro se and the
pitfalls associated with his lack of legal training.’”
Id. at 1182, quoting Robinson, 970 A.2d at 460 (footnote omitted). “The
Grazier colloquy, as delineated in Robinson, must inform Appellant that he
not only has a right to have counsel on appeal, but that he was also entitled
to a counseled amended petition and representation before the PCRA court.”
Id.
For these reasons, it is necessary to vacate the denial of PCRA relief
and remand for a full waiver colloquy.
Order vacated. Case remanded for conduct of a colloquy in
accordance with Grazier. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2015
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