Com. v. Hickox, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JUSTIN MICHAEL HICKOX, :
:
Appellant : No. 1897 MDA 2015
Appeal from the PCRA Order October 8, 2015
In the Court of Common Pleas of Centre County
Criminal Division No.: CP-14-CR-0001270-2010
BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*
JUDGMENT ORDER BY DUBOW, J.: FILED JUNE 09, 2016
Appellant, Justin Michael Hickox, appeals from the October 8, 2015
Order dismissing his first Petition filed under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. As explained infra, we vacate the PCRA
court’s Order and 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. 121.1
On December 17, 2014, Appellant filed a pro se PCRA Petition,
asserting prosecutorial misconduct and challenging the legality of his
sentence. On March 5, 2015, the PCRA court appointed Karen G. Muir, Esq.,
*
Former Justice specially assigned to the Superior Court.
1
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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to represent Appellant. Notwithstanding the appointment of counsel,
Appellant filed a pro se Motion to Appoint Special Prosecutor on June 22,
2015, seeking to disqualify the Centre County District Attorney. The court
scheduled a hearing on that Motion for July 27, 2015.
On July 16, 2015, Attorney Muir filed a Motion to Withdraw as counsel,
citing Appellant’s desire to proceed pro se. See Motion to Withdraw as
Counsel, 7/16/15, at ¶¶ 3-6. Attorney Muir’s Motion to Withdraw did not
aver that she believed that Appellant’s PCRA Petition had no merit, and she
did not file a Turner/Finley letter.2 On July 17, 2015, the court scheduled
a hearing on counsel’s Motion to Withdraw for July 27, 2015, the same day
as the hearing on Appellant’s Motion to Appoint Special Counsel.
On July 27, 2015, after a hearing, the trial court granted Appellant
permission to file a pro se Amended PCRA Petition and denied Appellant’s
motion to disqualify the District Attorney. The certified record does not
include a transcript of this hearing, and there is no indication in the record
that the PCRA court conducted a Grazier hearing.
On August 4, 2015, the PCRA court entered an Order granting
Attorney Muir’s Motion to Withdraw as Counsel.3 The trial court thereafter
issued a Pa.R.Crim.P. 907 Notice and Opinion, to which Appellant filed a pro
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
The Order entered August 4, 2015 provides in toto: “AND NOW, July 17,
2015, after hearing, Karen Muir’s Motion to Withdraw as Counsel, with no
objection from the Commonwealth, is GRANTED.” Order, entered 8/4/15.
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se response. The PCRA court dismissed Appellant’s PCRA Petition without a
hearing on October 8, 2015. Appellant timely appealed.
Although there are indications in the certified record that Appellant
desired to proceed pro se during the PCRA proceedings below, 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 has not filed a
Turner/Finley letter. See Pa.R.Crim.P. 121(A); Grazier, supra;
Commonwealth v. Robinson, 970 A.2d 455, 460 (Pa. Super. 2009) (en
banc) (stating that “a colloquy [under Pa.R.Crim.P. 121(A)] must be held by
the PCRA court of its own accord . . . once the defendant has expressed a
desire to proceed pro se as long as PCRA counsel has not properly withdrawn
by complying with the dictates of Turner/Finley.”).
Because the PCRA court did not conduct a Grazier hearing prior to
allowing Appellant to proceed pro se, we vacate the PCRA court’s October 8,
2015 Order, and remand to the PCRA court for a Grazier hearing and a
subsequent ruling on Appellant’s PCRA Petition. See Grazier, supra at 82.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2016
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