Com. v. Hill, M.

J-S36018-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
MARQUISE HILL
Appellant : No. 2003 MDA 2018
Appeal from the Order Entered October 25, 2018
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000751-2014
BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.
JUDGMENT ORDER BY SHOGAN, J. FILED JUNE 24, 2019
Appellant, Marquise Hill, appeals from an order entered on October 25,
2018, that denied, in part, and granted, in part, his petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We remand
with instructions.
On December 10, 2014, following a jury trial, Appellant was sentenced
to an aggregate term of twenty-five years to fifty years. Appellant filed a
timely appeal, and this Court affirmed Appellant’s judgment of sentence.
Commonwealth v. Hill, 141 A.3d 582, 132 MDA 2015 (Pa. Super. filed
February 1, 2016) (unpublished memorandum). On October 26, 2016,
Appellant filed a timely PCRA petition. On December 9, 2016, the PCRA court
held a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa.
1998). The PCRA court permitted Appellant to represent himself and
* Retired Senior Judge assigned to the Superior Court.
J-S36018-19
appointed Kurt Lynott, Esquire, as stand-by counsel. Order, 12/9/16. During
Appellant’s PCRA hearing Appellant requested stand-by counsel represent him
for the rest of the “case.” N.T., 5/29/18, at 41-42. The PCRA court warned
Appellant that if stand-by counsel resumed representation, Appellant would
no longer be representing himself, and Appellant agreed. Id. at 43. On
October 25, 2018, the PCRA court granted Appellant’s PCRA petition in part,
and denied it in part. Order, 10/25/18.
Despite Attorney Lynott remaining counsel of record, Appellant filed a
pro se appeal, and the PCRA court directed Appellant to file a Pa.R.A.P.
1925(b) statement. Appellant complied, and the PCRA court filed a Pa.R.A.P.
1925(a) opinion on January 15, 2019.
On April 3, 2019, Appellant filed a pro se application in this Court for
permission to file a reduced number of copies of his brief and reproduced
record on appeal. This Court granted Appellant's application on April 17, 2019.
On May 9, 2019, Appellant filed his briefs and reproduced records pro se.
On June 14, 2019, Appellant filed a pro se motion to proceed in forma
pauperis (“IFP”). We note that Attorney Lynott has not been granted leave to
withdraw and remains counsel of record in this PCRA appeal. See
Commonwealth v. Cherry, 155 A.3d 1080, 1082-1083 (Pa. Super. 2017)
(criminal defendants have a right pursuant to Pa.R.Crim.P. 904(C) to the
assistance of counsel for their first PCRA petition through the entire appellate
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process, and once counsel is appointed, he must take affirmative steps to
discharge his duties) (citations omitted).
Accordingly, we remand this matter to the PCRA court for a Grazier
hearing at which the PCRA court shall determine if Appellant wishes to have
counsel or proceed pro se. The PCRA court shall also determine Appellant’s
IFP status. If Appellant concludes that he wants current counsel, Attorney
Lynott, to represent him on appeal, Attorney Lynott shall enter his appearance
in this Court, and the PCRA court shall afford counsel an opportunity to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), nunc pro tunc within twenty-one days. Thereafter, within thirty
days, the PCRA court shall file a Pa.R.A.P. 1925(a) opinion. Counsel's
appellate brief to this Court would then be due within thirty days of the filing
of the PCRA court’s Pa.R.A.P. 1925(a) opinion.
Alternatively, should Appellant conclude that he wants to represent
himself on appeal, and if the PCRA court deems his waiver of counsel is proper
in light of Grazier, the PCRA court shall immediately certify and supply to this
Court the transcript of the Grazier hearing so that we may proceed to dispose
of the appeal on the briefs already filed.
Case remanded with instructions. Panel jurisdiction retained.