Com. v. Conyers, J.

J-S31019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEROYD P. CONYERS, :
:
Appellant : No. 1165 WDA 2016
Appeal from the Judgment of Sentence July 15, 2016
In the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0000683-2013,
CP-10-CR-0000684-2013, CP-10-CR-0000685-2013,
CP-10-CR-0000686-2013, CP-10-CR-0001004-2013
BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED JUNE 15, 2017
Appellant, Jeroyd P. Conyers, appeals from the July 15, 2016
Judgment of Sentence.1 As explained infra, we remand this case for the
PCRA court to conduct a hearing in accordance with Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998), and Pa.R.Crim.P. 121.2
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1
Appellant purports to appeal from the July 15, 2016 PCRA Order. The
PCRA court granted Appellant’s PCRA Petition on May 19, 2016. The PCRA
court then resentenced Appellant on July 15, 2016. Appellant’s pro se Brief
challenges his new Judgment of Sentence in the form of a direct appeal
rather than an appeal from the PCRA Order. We have changed the caption
accordingly.
2
We raise the issue of the need for a Grazier hearing and a Pa.R.Crim.P.
121 colloquy sua sponte. Commonwealth v. Stossel, 17 A.3d 1286, 1290
(Pa. Super. 2011).
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On October 11, 2013, Appellant entered open guilty pleas to five
counts of Possession of a Controlled Substance with Intent to Deliver
(“PWID”)3 and one violation of the Uniform Firearms Act4 on five different
dockets. On December 17, 2013, the trial court sentenced Appellant to an
aggregate term of 12 to 24 years’ incarceration. Appellant did not appeal.
Appellant filed his first PCRA Petition pro se on May 27, 2014.5 The
PCRA court appointed counsel on June 9, 2014. Counsel filed a
Turner/Finley Letter and Petition to Withdraw.6 The PCRA court permitted
counsel to withdraw on January 21, 2015, before it dismissed the May 27,
2014 PCRA Petition on February 13, 2015, without a hearing.
Appellant appealed pro se, but this Court dismissed the appeal for
failure to file a brief. See Commonwealth v. Conyers, No. 399 WDA 2015
(Pa. Super. filed July 6, 2015).
On August 24, 2015, after this Court dismissed the appeal from the
denial of Appellant’s first PCRA Petition, the PCRA court re-appointed
Matthew J. Kalina, Esq., to represent Appellant for PCRA purposes after
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3
35 P.S. § 780-113(a)(30).
4
18 Pa.C.S. § 6105.
5
Appellant also filed a pro se PCRA Petition on November 13, 2014, and
again on February 9, 2015.
6
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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determining Appellant’s PCRA Petition filed pro se on February 9, 2015,
would be treated as an Amendment to his first PCRA Petition. On October 1,
2015, Appellant filed another pro se PCRA Petition, which Attorney Kalina
later amended on March 23, 2016, challenging the legality of his mandatory
minimum sentences pursuant to Alleyne v. United States, 133 S.Ct. 2151(2013).
By agreement, the PCRA court granted Appellant’s PCRA Petition on
May 19, 2016. On July 15, 2016, following the resentencing hearing, the
trial court altered its sentences imposed on three counts in three of different
cases, which resulted in an aggregate sentence of 11½ to 24 years’
incarceration.
Notwithstanding his representation by counsel, Appellant filed a pro se
Notice of Appeal on August 8, 2016. Curiously, even though Attorney Kalina
was still counsel of record, the trial court did not forward Appellant’s pro se
Notice of Appeal to Attorney Kalina. See 210 Pa. Code § 65.24 (“Hybrid
Representation”). Although the trial court properly docketed the Notice of
Appeal in accordance with 210 Pa. Code § 65.24, the trial court failed to
forward this pro se filing to counsel.
On August 17, 2016, the trial court ordered Appellant to file a
Pa.R.A.P. 1925(b) Statement of Errors, but did not serve Appellant’s counsel
of record. Instead, the court served the Order on Appellant pro se. On
August 25, 2016, Appellant complied with the trial court’s order and filed a
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pro se Pa.R.A.P. 1925(b) Statement of Errors challenging the legality of his
new sentence. On November 4, 2016, the trial court filed a responsive
Pa.R.A.P. 1925(a) Opinion. The court failed to forward Appellant’s Rule
1925(b) Statement and the court’s 1925(a) Opinion to counsel. See
Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (holding that
generally “the proper response to any pro se pleading is to refer the
pleading to counsel[.]”).
A timely appeal from a resentencing determination is a direct appeal
for which a criminal appellant has a constitutional right to counsel. See
Commonwealth v. Figueroa, 29 A.3d 1177, 1180 n.6 (Pa. Super. 2011)
(“defendants in Pennsylvania are constitutionally entitled to counsel during a
direct appeal.”); see also Commonwealth v. Harclerode, 768 A.2d 1132(Pa. Super. 2001) (entertaining timely direct appeal of new judgment of
sentence imposed after resentencing hearing following grant of PCRA relief
based on illegal life sentence).
Our review of the certified record shows that Attorney Kalina remains
court-appointed in the instant matters, as he has not withdrawn or
attempted to withdraw in the trial court or in this Court by complying with
the dictates of Turner/Finley or Anders/Santiago.7 See also
Pa.R.Crim.P. 122(B)(2) (“When counsel is appointed . . . the appointment
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7
Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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shall be effective until final judgment, including any proceedings upon direct
appeal.”).
“When a waiver of the right to counsel is sought at the . . . appellate
stages, an on-the-record determination should be made that the waiver is a
knowing, intelligent, and voluntary one.” Grazier, 713 A.2d at 82.
Although there are indications in the certified record that Appellant
may desire to proceed pro se,8 the rules of criminal procedure and our case
law nevertheless require a full colloquy prior to allowing an appellant to
proceed pro se if counsel of record has not sought to withdraw. See
Pa.R.Crim.P. 121(A); Grazier, supra.
Because the resentencing court did not conduct a Grazier hearing
prior to Appellant proceeding pro se on appeal, we must remand to the trial
court for a Grazier hearing. The trial court is to conduct a Grazier hearing
within thirty days.
If Attorney Kalina remains as counsel of record, or if new counsel
enters his or her appearance after a determination that Attorney Kalina has
abandoned Appellant, then we direct our Prothonotary to set a new briefing
schedule. The trial court shall also permit Attorney Kalina or newly
appointed counsel to file a new Pa.R.A.P. 1925(b) Statement of Errors, and
shall then submit a responsive Pa.R.A.P. 1925(a) Opinion.
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8
For example, Appellant has filed a pro se Brief without the assistance of
counsel, and the docket entries indicate Appellant is proceeding pro se.
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In the event Appellant proceeds pro se, the trial court is directed to file
a new Pa.R.A.P. 1925(a) Opinion.9
If Appellant wishes to proceed pro se, then no new briefing schedule is
required.
Case remanded with instructions. Panel jurisdiction retained.
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9
The trial court’s November 7, 2016 Orders conclude that Appellant’s appeal
pertained solely to docket No. CP-10-CR-0000683-2013 so it would “take no
action with regard” to the other four cases. Contrary to the trial court’s
conclusion, our review of the certified record and Appellant’s Notice of
Appeal plainly shows that Appellant appealed from all five cases, and the
docket entry for Appellant’s Notice of Appeal clearly identifies all five cases.
Notice of Appeal, filed 8/10/16. Accordingly, the trial court shall review the
new sentences imposed on each case in its new 1925(a) Opinion in response
to Appellant’s sentencing challenge.
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