Com. v. Barry, A. ( 2018 )

J-S65025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMADU BARRY :
:
Appellant : No. 798 EDA 2017
Appeal from the Judgment of Sentence February 8, 2017
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0001096-2014
BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.
JUDGMENT ORDER BY OTT, J.: FILED JANUARY 11, 2018
Amadu Barry appeals from the judgment of sentence imposed February
8, 2017, in the Chester County Court of Common Pleas, upon the revocation
of his parole. The trial court sentenced Barry to a term of 12 months and 29
days’ imprisonment, the balance of his sentence previously imposed on
September 10, 2014, following his guilty plea to four counts of access device
fraud.1 Contemporaneous with this appeal, Barry’s counsel has filed a petition
to withdraw from representation and an Anders brief. See Anders v.
California, 386 U.S. 738 (1967); Commonwealth v. McClendon, 434 A.2d
1185 (Pa. 1981). For the reasons below, we vacate Barry’s parole revocation
sentence, deny counsel’s petition to withdraw, and remand for further
proceedings.
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1 See 18 Pa.C.S. § 4106(a)(3).
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The relevant factual and procedural history underlying this appeal are
aptly summarized in the trial court opinion, and we need not reiterate them
herein. See Trial Court Opinion, 3/29/2017, at 1-3. Pertinent to our
disposition, however, we note that Barry appeared, pro se, via telephone, for
his February 8, 2017, revocation hearing and sentencing.
Pennsylvania Rule of Criminal Procedure 708 provides that a trial court
may not revoke a defendant’s parole, unless there has been: “(1) a hearing
held as speedily as possible at which the defendant is present and
represented by counsel; and (2) a finding of record that the defendant
violated a condition of … parole.” Pa.R.Crim.P. 708(B)(1)-(2) (emphasis
supplied). Our review of the record reveals Barry was unrepresented at his
revocation hearing, and there is no indication in the record that Barry
requested to proceed pro se or waived his right to counsel. See, generally,
N.T., 2/8/2017, at 1-10.
In fact, after Barry filed a pro se notice of appeal, this Court issued a
per curium order, directing the trial court to conduct a Grazier2 hearing to
determine if Barry wanted to proceed pro se. See Order, 4/24/2017. The
order specifically noted it appeared from the docket that Barry was
unrepresented at his revocation hearing. See id. Thereafter, the trial court
complied with our directive, and following a Grazier hearing, appointed
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2 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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present counsel to represent Barry on appeal. Counsel then filed an Anders
brief and petition to withdraw.
Our review of the record reveals that although counsel substantially
complied with the requirements of Anders and its progeny,3 we are,
nevertheless, constrained to deny counsel’s petition to withdraw because
Barry’s appeal is not wholly frivolous. See Commonwealth v. Tukhi, 149
A.3d 881, 889 (Pa. Super. 2016) (denying counsel’s petition to withdraw when
“independent review of the record reveals a potentially non-frivolous issue not
raised by counsel”). Barry was entitled to the assistance of counsel to
represent him at the February 8, 2017, revocation hearing. Pa.R.Crim.P.
708(B)(1). Neither the trial court, nor newly appointed counsel, address this
claim on appeal. Accordingly, we are compelled to vacate the judgment of
sentence imposed on February 8, 2017, deny counsel’s petition to withdraw,
and remand for further proceedings.
Judgment of sentence vacated. Petition to withdraw as counsel denied.
Case remanded for further proceedings. Jurisdiction relinquished.
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3 See Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013)
(en banc).
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J-S65025-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/18
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