J-S45023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LESLEY COLON                               :
                                               :
                       Appellant               :   No. 98 MDA 2018

                Appeal from the PCRA Order December 13, 2017
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0001832-2015


BEFORE:      PANELLA, J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.:                             FILED SEPTEMBER 13, 2018

        Lesley Colon, pro se, appeals from the order of the Court of Common

Pleas of Lebanon County, entered December 13, 2017, that “vacate[d] the

appointment and authorization” of counsel and clarified an order dated

October 27, 2017, that had denied Colon’s first petition filed under the Post

Conviction Relief Act (“PCRA”).1 We vacate the order of December 13, 2017,

and we remand to the PCRA court for the appointment of counsel for appeal

purposes.




____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541–9546.
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       The underlying facts and procedural history of this matter are as follows.

On June 10, 2016, Colon pleaded guilty to receiving stolen property, graded

as a second-degree misdemeanor.2 See N.T., 6/10/2016, at 5. The court

sentenced Colon on June 29, 2016.              At the beginning of the sentencing

hearing, defense counsel noted that with respect to the information, it stated

that the count of receiving stolen property was graded as a first-degree

misdemeanor, when Colon had pleaded to a misdemeanor of the second

degree. See N.T., 6/29/2016, at 2. The Commonwealth agreed and corrected

the information, which the trial court acknowledged. Id. at 2-4. The court

then sentenced Colon to a term of 310 days to two years of confinement, to

“run concurrent with all other sentences.”         Id. at 5.3   The trial court also

granted Colon “credit for time he spent incarcerated solely as a result of this

offense; however, he shall not be entitled to any credit for any time spent in

prison on other matters.” Id. at 6.

       On May 5, 2017, Colon filed his first, pro se, timely PCRA petition,

challenging the validity of his guilty plea and sentence. See Motion for PCRA

Relief, 5/5/2017, at ¶¶ 1-3A.             Colon alleged the Commonwealth had

inaccurately recorded his conviction as a first-degree misdemeanor, whereas

he believed he pleaded to a second-degree misdemeanor. Id. at ¶¶ 3C, G.


____________________________________________


2   18 Pa.C.S. § 3925(a).

3 At the time of his sentencing hearing in the current Lebanon County action,
Colon was waiting to be sentenced on an unrelated case in Dauphin County.

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He also contended the Pennsylvania Board of Probation and Parole had

misconstrued the sentencing order in this action and was improperly applying

this sentence consecutively to a sentence he was serving from Dauphin

County, instead of concurrently as ordered by the trial court. Id. at ¶¶ 3D,

K, 14. Additionally, he maintained the Pennsylvania Board of Probation and

Parole failed to credit him for time served.   Id. at ¶¶ 3K, 14.   Finally, he

argued that, if the trial court had intended his sentence to run consecutively

instead of concurrently, the PCRA court should vacate his sentence and

resentence him to time served. Id. at ¶ 15.

      On May 16, 2017, the PCRA court appointed counsel to represent Colon

and ordered PCRA counsel to file an amended petition within 20 days of the

date of the order. PCRA counsel failed to file an amended PCRA petition or a

motion to withdraw within the allotted time.

      On July 26, 2017, Colon filed a pro se motion requesting that the PCRA

court appoint new counsel. On August 21, 2017, the PCRA court ordered PCRA

counsel to file an amended PCRA petition within 72 hours.

      On August 24, 2017, PCRA counsel filed an amended PCRA petition. The

amended PCRA petition stated that trial counsel was ineffective for failing to

advise Colon as to the effect of his Dauphin County case on his sentence in

the instant Lebanon County case.     See Amended Petition for PCRA Relief,

8/24/2017, at ¶¶ 10-11.




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      On October 24, 2017, the PCRA court held an evidentiary hearing,

during which PCRA counsel represented to the court “that the State

Correctional Facility had returned [Colon] to the Lebanon County Correctional

Facility and surrendered jurisdiction to the [PCRA c]ourt for purpose of

parole.”   Amended Order, 12/13/2017, at 1 n.1.       At the conclusion of the

hearing, the PCRA court entered an order granting parole and granting PCRA

counsel’s request to extend his appointment “to handle [any] potential Writ of

Mandamus to request the Commonwealth Court to amend [Colon’s] sentence

accordingly.” N.T., 10/24/2017, at 34.

      On October 27, 2017, the PCRA court entered the following order:

      On Tuesday, October 24, 2017, this Court held a PCRA Hearing
      wherein [Colon]’s Counsel represented to the Court that the State
      Correctional Facility had returned [Colon] to the Lebanon County
      Correctional Facility and had surrendered jurisdiction to this Court
      for purposes of parole.

      Accordingly based on that belief, this Court granted an order for
      eligibility for Parole.

      Upon review of the file by the Lebanon County Parole Department
      and in particular, the Chief Parole Officer of the County and in
      consultation with the State, Defense Counsel failed to include the
      last 2 pages of the return documentation which did not surrender
      jurisdiction to this Court.

      Accordingly, this Court lacks jurisdiction to grant parole and the
      parole Order dated October 24, 2017 is VACATED.

      The Court urges the State Correctional Facility to afford [Colon]
      all appropriate time and the Court notes it has no objection to the
      State Parole Board granting him immediate eligibility for parole.




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Order, 10/27/2017, at 1. On November 10, 2017, Colon filed a second pro se

motion requesting the PCRA court appoint new counsel.4

       On December 13, 2017, the PCRA court entered an amended order,5

stating:

       I.        On October 24, 2017, this Court held a PCRA hearing during
                 which we expressed that the matters complained of by
                 [Colon] were outside of the jurisdiction of this Court to
                 provide relief, and as such, denied [Colon]’s PCRA [petition].
                 To the extent that this Court, upon representations by PCRA
                 counsel1, found it available to act, we issued an Order dated
                 October 24, 2017, in which we granted [Colon]’s earlier
                 request for parole, and authorized and appointed PCRA
                 counsel to continue representing [Colon] in further action
                 more properly addressed in the Commonwealth Court.

             _________________

             1  PCRA counsel represented to this Court that the State
             Correctional Facility had returned [Colon] to the Lebanon
             County Correctional Facility and surrendered jurisdiction to
             the Court for purposes of parole.
             _________________


       II.       By Amended Order dated October 27, 2017, this Court
                 acknowledged that PCRA counsel’s representations to this
                 Court were incomplete, and that [Colon] had not been
                 released to this Court’s jurisdiction. We therefore vacated
                 our parole Order dated October 24, 2017, for lack of
                 jurisdiction.


____________________________________________


4  Colon again entitled this motion, “Motion for Withdrawal of Counsel Inter
Alia Ineffective Assistance of Counsel (IAC).” Even though the title of this
document purports to request a withdrawal of counsel, a review of the record
does not reveal that Colon requested to proceed pro se, but rather, desired
the appointment of new counsel.

5   The order was timestamped the following day.

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       III.   This Court[’s] understanding that our October 27th Order
              was unclear as to all portions of the October 24th Order, we
              hereby amend our October 27th Order to likewise vacate the
              appointment and authorization of PCRA counsel, Michael
              McHale[, Esquire,] to continue representation of [Colon] in
              any potential action before the Commonwealth Court.

       IV.    [Colon] is therefore free to pursue any further relief in the
              Commonwealth Court, as this Court noted, through pro se
              efforts, and his Motion for Withdrawal of Counsel now being
              moot pursuant to his amended order, is hereby dismissed.


Amended Order, 12/13/2017, at 1-2. On January 7, 2018, Colon filed a notice

of appeal to this Court.6

       In reviewing an appeal from the denial of PCRA relief, “this Court is

limited to ascertaining whether the evidence supports the determination of

the PCRA court and whether the ruling is free of legal error.” Commonwealth

v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017) (citation omitted).




____________________________________________


6   The issue of whether this Court has jurisdiction to review this matter
pursuant to the 30-day rule under Pa.R.A.P. 903(a) (stating a “notice of appeal
. . . shall be filed within 30 days after the entry of the order from which the
appeal is taken”) does not need to be resolved at this moment due to the
necessity of the appointment of counsel, which will be discussed in more detail
below. Nonetheless, we note the following: after the October 27, 2017, order,
which disposed of Colon’s PCRA claims, was entered, Colon filed a pro se
motion for the appointment of new counsel approximately 14 days later. At
that moment, Colon was still represented by his PCRA counsel and was
awaiting a court decision with respect to his motion. His PCRA counsel never
filed a notice of appeal from the October 27, 2017, order. Subsequently, Colon
did file a timely pro se notice of appeal after the December 13, 2017, order,
which removed counsel and required Colon to proceed pro se. Therefore, we
will consider his notice of appeal timely filed due to the unique circumstances
of this case, particularly Colon’s request for the appointment of new counsel.

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       Preliminarily, we must determine whether this appeal is properly before

us.   “[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) (en banc). See also Pa.R.Crim.P. 904(C) (“when an unrepresented

defendant satisfies the judge that the defendant is unable to afford or

otherwise procure counsel, the judge shall appoint counsel to represent the

defendant on the defendant’s first petition for post-conviction collateral

relief”).

       Here, Colon filed an application to proceed in forma pauperis with his

first pro se PCRA petition, and on May 16, 2017, the PCRA court entered an

order finding him indigent and appointed PCRA counsel.7 Throughout these

PCRA proceedings, Colon did not express an intent to proceed pro se. Rather,

he requested the appointment of new PCRA counsel several times, including

before and after the October 27, 2017, PCRA order was entered. See Motion

for Withdrawal of Counsel Inter Alia Ineffective Assistance of Counsel (IAC),

7/26/2017; Motion for Withdrawal of Counsel Inter Alia Ineffective Assistance

of Counsel (IAC), 11/10/2017.

       The PCRA court, on its accord, removed PCRA counsel from representing

Colon and ordered him to proceed pro se. Indeed, PCRA counsel never filed


____________________________________________


7  A review of the certified record does not indicate that the PCRA court
revoked its finding of Colon’s indigence.

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a motion to withdraw as counsel, including adhering to the requirements of

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988). See also Commonwealth v.

Freeland, 106 A.3d 768, 774 (Pa. Super. 2014) (requirements for post-

conviction counsel to withdraw from representation).

      Consequently, the PCRA court erred when it entered the December 13,

2017, order, vacating the appointment and authorization of PCRA counsel.

See Pa.R.Crim. 904(F)(2) (“When counsel is appointed, … the appointment of

counsel   shall   be   effective   throughout   the   post-conviction   collateral

proceedings, including any appeal from disposition of the petition for post-

conviction collateral relief.”) (emphasis added).

      Therefore, we vacate the December 13, 2017, order, and remand for

the appointment of counsel within 30 days of the filing of this decision for

appeal purposes only. Once such an appointment is made, the PCRA court

shall remit the certified record to this Court immediately. Newly appointed

counsel shall enter an appearance with this Court.        Lastly, we direct our

Prothonotary to establish an appropriate briefing schedule.

      December 13, 2017, order is vacated. Case remanded with instructions.

Panel jurisdiction retained.




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