Com. v. Odom, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JEFFREY EDWARD ODOM :
:
Appellant : No. 1391 MDA 2019
Appeal from the PCRA Order Entered July 1, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001516-2017
BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED JULY 08, 2020
Appellant, Jeffrey Edward Odom, appeals from the July 1, 2019 order
dismissing his petition filed under the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. Although Appellant initially was represented by
counsel when he filed his petition, the PCRA court permitted counsel to
withdraw and Appellant to represent himself, without a hearing as required by
Commonwealth v. Grazier, 713 A.2d 81 (Pa. Super. 1998). Thus, we
remand to the PCRA court for a Grazier hearing.
Appellant pled guilty to possession of a firearm prohibited, simple
assault, and recklessly endangering another person.1 PCRA Court Opinion,
7/1/19, at 1. On June 18, 2018, the court sentenced Appellant to serve four
to ten years of incarceration for possession of a firearm, one to two years of
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1 18 Pa.C.S. §§ 6105(a)(1), 2701(a)(3), and 2705, respectively.
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incarceration for simple assault, and one to two years of incarceration for
recklessly endangering another person. Id. Appellant’s sentence was to run
partly consecutively and partly concurrently for an aggregate sentence of five
to twelve years of incarceration. Id. Appellant did not file a direct appeal.
Appellant filed a counseled PCRA petition on December 28, 2018.
Following a hearing, the PCRA court denied the petition on July 1, 2019.
Although he was represented by counsel, Appellant filed two pro se notices of
appeal, one on July 17, 2019, and another on July 26, 2019. Those appeals,
however, were not docketed and sent to this Court. Although hybrid
representation is not permitted pursuant to Pa.R.Crim.P. 576(a)(4), the
notices of appeal filed on July 17, 2019, and July 26, 2019, should have been
docketed. Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super.
2016) (emphasis in original) (quoting Superior Court Internal Operating §
65.24 procedure and noting that “a pro se notice of appeal received from the
trial court shall be docketed, even in instances where the pro se
[appellant] was represented by counsel in the trial court.”).
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On either July 29 or July 30, 2019,2 Appellant’s private counsel filed a
motion to withdraw.3 The PCRA court granted counsel’s motion to withdraw
on July 31, 2019, without holding a hearing.
Appellant, again acting pro se, filed his third notice of appeal on August
21, 2019. Although the August appeal properly was docketed and forwarded
to this Court, it was untimely. The notices of appeal filed on July 17, 2019,
and July 26, 2019, however, were timely filed. This Court has held that a
failure to forward a pro se notice of appeal constitutes a breakdown in the
operation of the courts. Williams, 151 A.3d at 624, n. 5 (citing
Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa. Super. 2015)). Thus,
this Court will view the July notices of appeal as timely filed, and we will
exercise jurisdiction over the instant appeal.
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2The Motion to Withdraw as Counsel is marked as received both July 29, 2019
and July 30, 2019. For purposes of this appeal we will use the July 29, 2019
date.
3 Appellant has been represented by several attorneys. Although Appellant
was represented by private counsel, Korey Leslie, Esq, during the filing of his
PCRA petition, he initially was represented by Joanne O’Brien, a Dauphin
County public defender. Praecipe, 4/4/17. Attorney O’Brien was then
replaced by privately retained counsel, Attorney Heather Reiner. Praecipe,
12/15/17; N.T. (PCRA), 2/21/19, at 4. On June 27, 2018, following
Appellant’s sentencing and prior to his filing a motion for post-sentence relief,
Appellant retained new private counsel, Kevin Hoffman, Esq. Praecipe,
6/27/19. Appellant was represented by Attorney Leslie when he filed his
December 28, 2018 PCRA petition. Attorney Leslie also is the attorney who
filed the July 29, 2019 Motion to Withdraw as Counsel. Following Attorney
Leslie’s withdrawal, the court granted Appellant’s motion for leave to proceed
in forma pauperis. Order, 8/26/19.
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Despite our exercise of jurisdiction, we are not able to reach the merits
of the appeal because the PCRA court permitted Appellant’s counsel to
withdraw without conducting a hearing as required by Grazier to determine
if Appellant knowingly, intelligently, and voluntarily waived his right to
counsel.4 Commonwealth v. Stossel, 17 A.3d 1286 (Pa. Super. 2011).
Indeed, in Grazier, our Supreme Court found “[w]hen a waiver of the right to
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 voluntary one.” Grazier, 713 A.2d at 82.5 “Pursuant to the rules of
criminal procedure and interpretive case law, a criminal defendant has a right
to representation of counsel for purposes of litigating a first PCRA petition
through the entire appellate process.” Commonwealth v. Robinson, 970
A.2d 455, 457 (Pa. Super. 2009). Pa.R.Crim.P. 121(a)(2) provides in relevant
part:
(2) To ensure that the defendant’s waiver of the counsel is
knowing, voluntary, and intelligent, the judge … at a minimum,
shall elicit the following from the defendant:
(a) that the defendant understands that he or she has
right to be represented by counsel, and the right to
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4 Although Appellant did not raise this issue in his brief, we are required to
raise the issue sua sponte when reviewing a first time petition of an indigent
petitioner. Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super.
2011).
5A Grazier hearing is required even where it is clear from the record that the
appellant “clearly and unequivocally indicates a desire to represent himself.”
Commonwealth v. Robinson, 970 A.2d 455, 459-460 (Pa. Super. 2009).
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have free counsel appointed if the defendant is
indigent;
***
(d) that the defendant understands that if he or she
waives the right to counsel, the defendant will still be
bound by the normal rules of procedure and that
counsel would be familiar with these rules;
(e) that the defendant understands that there are
possible defenses to the charges that counsel might
be aware of, and if these defenses are not raised at
trial, they may be lost permanently; and
(f) that the defendant understands that, in addition to
defenses, the defendant has many rights that, if not
timely asserted, may be lost permanently; and that if
errors occur and are not timely objected to, or
otherwise timely raised by the defendant, these errors
may be lost permanently.
Pa.R.Crim.P. 121(A)(2)(a), (d), (e), and (f). See also Robinson, 970 A.2d
at 459-460 (“[W]e conclude that if a PCRA defendant indicates a desire to
represent himself, it is incumbent upon the PCRA court to elicit information
from the defendant that he understands the items outlined in Pa.R.Crim.P.
121 (A)(2)(a)(d)(e) and (f).”).
In this case, the PCRA court did not hold a hearing on the matter. In
his petition to withdraw, counsel made the following averments, inter alia:
6. On July 17, 2019, [Appellant] attempted to file a Pro Se notice
of appeal, requests for transcripts and an application for leave to
proceeding in forma pauperis.
7. On July 25, 2019, the Law Offices of Korey Leslie, LLC, was
notified that [Appellant] would like to exercise his right to appeal,
Pro Se.
Motion to Withdraw as Counsel, 7/29/19, at ¶¶ 6-7. There is nothing in the
record evidencing Appellant’s desire to proceed pro se beyond what is written
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in counsel’s motion to withdraw and the dictates of Grazier were not
followed.6
Because Appellant was not given a proper Grazier hearing, we remand
with instructions for the PCRA court to conduct a Grazier hearing within thirty
days of the date of filing of this memorandum and to proceed accordingly
based on the outcome of that hearing.
Case remanded for proceedings consistent with this memorandum.
Panel jurisdiction retained.
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6 In the instant case counsel did not file a Turner/Finley letter.
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988)(en banc). Given the indication in
counsel’s motion to withdraw that Appellant wished to proceed pro se, the
rules of criminal procedure and case law require a full colloquy prior to allowing
Appellant to proceed pro se where counsel has not complied with
Turner/Finley. See Robinson, 970 A.2d at 460 (“[A] colloquy 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”).
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