Com. v. Jones, J. ( 2014 )

J-S34032-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEFFREY V. JONES
Appellant No. 1762 WDA 2013
Appeal from the PCRA Order September 17, 2013
In the Court of Common Pleas of McKean County
Criminal Division at No(s): CP-42-CR-0000178-2011;
CP-42-CR-0000179-2011; CP-42-CR-0000180-2001
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 12, 2014
Appellant, Jeffrey V. Jones, appeals pro se from the order entered in
the McKean County Court of Common Pleas, granting in part and dismissing
in part his first petition filed pursuant to the Post Conviction Relief Act
1
We vacate and remand for further proceedings.
The relevant facts and procedural history of this case are as follows.
On March 5, 2012, Appellant entered a negotiated guilty plea to two (2)
counts of delivery of a controlled substance and one (1) count of simple
possession. On May 25, 2012, the court sentenced Appellant to an
aggregate term of eighteen (18) to thirty-
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1
42 Pa. C.S.A. §§ 9541-9546.
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Appellant did not file a direct appeal from his judgment of sentence. On
August 8, 2012, the Department of Corrections sent a letter to the trial
court, requesting the judge to clarify whether the McKean County sentence
was concurrent with or consecutive to a sentence Appellant previously
received in Potter County. On August 21, 2012, the trial court issued an
amended sentencing order which stated the McKean County sentence was to
run consecutive to all other sentences Appellant was serving.
On October 22, 2012, Appellant timely filed a pro se PCRA petition.
Appellant filed an amended petition on January 7, 2013. On June 28, 2013,
the court appointed counsel for Appellant. The court scheduled an
evidentiary hearing for August 6, 2013. At the hearing, PCRA counsel
indicated that after speaking with Appellant, they decided a hearing was not
necessary and requested to submit a brief solely on the issue of the legality
of th
stated that Appellant was forgoing any claim that plea counsel was
pro se
amended PCRA petition on August 26, 2013. On September 17, 2013, the
the absence of a statement to the contrary on the original sentencing order,
the McKean County and Potter County sentences were presumed to run
concurrently. The court found the sentences were presumed to run
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Appellant subsequently wrote a letter to PCRA counsel asking him to
withdraw from the case. PCRA counsel filed a motion to withdraw on
October 4, 2013. On October 7, 2013, Appellant, acting pro se, filed a
timely notice of appeal, a voluntary Pa.R.A.P. 1925(b) statement, and a
petition to proceed in forma pauperis
Appellant raises the following issues for our review, reproduced almost
verbatim from his brief:
WHE
CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF
FIRST POST CONVICTION COUNSEL SPECIFICALLY WITH
RESPECT TO HIS INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL CLAIM.
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AT PLEA
BARGAIN OFFERS TO GIVE [APPELLANT] GOOD ADVICE
AND TO INFORM ON WHETHER TO ACCEPT A PLEA
BARGAIN, AT ALL STAGES OF PROSECUTION, AND AT
IN THE PLEA BARGAINING STAGES.
pro se status presents a
question of whether Appellant was effectively deprived of his right to counsel
on this appeal. Pennsylvania Rule of Criminal Procedure 904 states:
Rule 904. Entry of Appearance and Appointment of
Counsel; In Forma Pauperis
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* * *
(C) Except as provided in paragraph (H), 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
-conviction
collateral relief.
* * *
(E) The judge shall appoint counsel to represent a
defendant whenever the interests of justice require it.
(F) When counsel is appointed,
* * *
(2) the appointment of counsel shall be effective
throughout the post-conviction collateral proceedings,
including any appeal from disposition of the petition for
post-conviction collateral relief.
(G) When a defendant satisfies the judge that the
defendant is unable to pay the costs of the post-conviction
collateral proceedings, the judge shall order that the
defendant be permitted to proceed in forma pauperis.
Pa.R.Crim.P. 904(C)-(G). An indigent defendant is entitled to representation
by counsel on a first petition filed under the PCRA. Commonwealth v.
Evans, 866 A.2d 442 (Pa.Super. 2005); Pa.R.Crim.P. 904(C).
While a PCRA petitioner does not have a Sixth Amendment
right to assistance of counsel during collateral review, this
Commonwealth, by way of procedural rule, provides for
petition for post conviction relief. Pursuant to our
procedural rules, not only does a PCRA petitioner have the
assistance of counsel. The guidance and representation of
an attorney during collateral review should assure that
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meritorious legal issues are recognized and addressed, and
that meritless claims are foregone.
Commonwealth v. Haag, 570 Pa. 289, 307-08, 809 A.2d 271, 282-83
(2002), cert. denied, 539 U.S. 918, 123 S. Ct. 2277, 156 L. Ed. 2d 136 (2003)
(internal citations and most quotations marks omitted).
This rule-based right to counsel and to effective assistance of counsel
extends throughout the post-conviction proceedings, including any appeal
from the disposition of the PCRA petition. Commonwealth v. White, 871
A.2d 1291 (Pa.Super. 2005); Pa.R.Crim.P. 904(F)(2). Rule 904 does not
require the petitioner/appellant to request appointment of counsel.
Commonwealth v. Guthrie, 749 A.2d 502 (Pa.Super. 2000).
Moreover:
Once counsel has entered an appearance on a
representation until the case is concluded or counsel is
granted leave by the court to withdraw his appearance.
* * *
[W]hen presented with a scenario where an indigent
petitioner files a pro se appeal from a first PCRA petition,
the PCRA court should take one of two actions: the PCRA
court should either promptly notify counsel of record that
his client has taken an appeal and that counsel remains
obligated to represent him, or the PCRA court should
appoint new counsel to represent the [petitioner] on
appeal. This action would alleviate the need of this [C]ourt
to remand cases back to the PCRA court and would further
expedite the appeals process.
Commonwealth v. Brown, 836 A.2d 997, 999 (Pa.Super. 2003) (internal
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counsel is sought at the post-conviction and appellate stages, an on-the-
record determination should be made that the waiver is a knowing,
intelligent, and volunta Commonwealth v. Grazier, 552 Pa. 9, 12-
13, 713 A.2d 81, 82 (1998). See also Commonwealth v. Robinson, 970
A.2d 455 (Pa.Super. 2009) (en banc) (setting standard to require Grazier
colloquy, before petitioner surrenders significant rule-based right to counsel
in PCRA cases).
Instantly, after Appellant filed his amended pro se first PCRA petition,
the court appointed counsel. Following a hearing, the court issued an order
ant
subsequently sent PCRA counsel a letter asking him to withdraw from the
case. On the basis of that letter, PCRA counsel filed a motion to withdraw on
October 4, 2013. Appellant filed a pro se notice of appeal on October 7,
2013. The following day, t
withdraw, but it did not appoint new counsel to represent Appellant on
appeal. Appellant has not filed an application with this Court to proceed pro
se, and the record establishes his indigent status. There is no indication in
the certified record that the court conducted a hearing to determine if
Appellant knowingly, intelligently, and voluntarily waived his right to
pro se
status on appeal. See Grazier, supra; White, supra.
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Moreover, in his pro se
ineffectiveness and asserts his right to effective assistance of counsel
throughout the post-conviction proceedings, including on appeal. Appellant
Commonwealth v. Grazier
Brief at 17, 21).
Therefore, absent evidence from a Grazier hearing, the best
case for further proceedings. Upon remand, the court must conduct a full,
on-the-record, Grazier hearing to determine if Appellant wants to proceed
pro se and can demonstrate a valid waiver of counsel. If Appellant does not
want to proceed pro se or fails to demonstrate a valid waiver of counsel, the
court must appoint new counsel to assist Appellant.2 Alternatively, if the
court is convinced Appellant wants to proceed pro se and has validly waived
his right to counsel, the court can reinstate its order granting in part and
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2
In the event that new counsel is appointed, the court should direct new
PCRA petition and determine if it is necessary
appeal that PCRA counsel was ineffective. Claims of ineffective assistance of
PCRA counsel may not be raised for the first time on appeal.
Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032, 1044 n. 14 (2011);
Commonwealth v. Hill, 609 Pa. 410, 16 A.3d 484, 497 n. 17 (2011);
Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874, 894 n. 12 (2010);
Commonwealth v. Pitts, 603 Pa. 1, 981 A.2d 875 (2009);
Commonwealth v. Henkel, 90 A.3d 16 (Pa.Super. 2014).
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denying in part PCRA relief; and Appellant can file a notice of appeal.
Accordingly, we vacate and remand for further proceedings.
Order vacated; case remanded with instructions. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2014
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