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    NON-PRECEDENTIAL DECISION          - SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
              Appellee

        v.

ARMONI M. JOHNSON,

              Appellant                          No. 2092 MDA 2016

                 Appeal from the PCRA Order November 9, 2016
                in the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0002713-2011

BEFORE:       BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                        FILED AUGUST 01, 2017

        Armoni   M.   Johnson (Appellant) appeals from the November 9, 2016

order that denied his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546.         We vacate the order and remand for

proceedings consistent with this memorandum.

        In 2013, Appellant was convicted of two counts of aggravated assault

and sentenced to an aggregate term of 66 to 156 months of imprisonment.

This Court affirmed Appellant's judgment of sentence and our Supreme

Court denied his petition for allowance of appeal.             Commonwealth v.
Johnson, 125 A.3d 465        (Pa. Super. 2015), appeal denied, 131 A.3d 490

(Pa. 2016).

        On April 12, 2016, Appellant   timely filed   a PCRA   petition. By order of

May 26, 2016, the PCRA court appointed Attorney Jeffrey A. Yelen as

*Retired Senior Judge assigned to the Superior Court.
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counsel and scheduled         a   hearing to take place on October 31, 2016. On July

21, 2016, Attorney Yelen filed         a   motion to withdraw indicating that Appellant

"has no claim under the PCRA and therefore, this case has no merit."1

Motion to Withdraw as Counsel, 7/21/2016, at ¶ 2.                By order of August 5,

2016, the PCRA court scheduled             a   hearing on counsel's motion also to take

place on October 31, 2016.

        The docket reflects that      a PCRA     hearing was held on October 31, 2016.

Although the PCRA court cites to the notes of testimony from that hearing,

no    transcript   is   included in the certified record.     In its opinion, the PCRA

court offered the following summary of the hearing:

              At the PCRA hearing held on October 31, 2016[,] the
        [PCRA c]ourt first required Attorney Yelen to state of record his
        review, findings and reason for seeking withdrawal of
        representation.

              Thereafter, the court having independently reviewed
        [Appellant's] allegations and the contents of Attorney Yelen's
        letter along with Attorney Yelen's reasons, granted Attorney
        Yelen's motion to withdraw as counsel.

              The court indicated to [Appellant] that he could represent
        himself or hire independent counsel. [Appellant] indicated that
        he chose to represent himself and was ready to proceed to
        hearing.

             The court inquired as to whether [Appellant] needed more
        time to proceed and [Appellant] indicated he stood on the


1 In the motion, counsel indicated that he attached a no -merit letter as
required by Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
Motion to Withdraw as Counsel, 7/21/2016, at ¶ 3. However, no letter is
attached to the copy of the motion included in the certified record.

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        submissions which he had previously filed and forwarded to the
        court in support of his PCRA motion.

PCRA Court Opinion,         2/8/2017, at   4   (citations and unnecessary capitalization

as    omitted).       By order docketed on November 9, 2016, the PCRA court

denied Appellant's petition.          Appellant timely filed     a   notice of appeal. The

PCRA    court filed its opinion on February 8, 2017.

        It   is   not clear to us from Appellant's pro se brief what issues he wishes

this Court to review.            As   the Commonwealth aptly notes, Appellant's

"appellate issues are raised in such           a   confusing, rambling, incoherent fashion

as to be devoid of the slightest         discernibility." Commonwealth's Brief at 4.

However, we need not undergo the laborious task of attempting to construe

Appellant's claims, as it appears that he has been denied his right to

counsel.2

        Rule 904 of the Rules of Criminal Procedure requires the appointment

of counsel for an indigent petitioner3 on his or her first PCRA petition.




2  "[W]here an indigent, first-time PCRA petitioner was denied his right to
counsel-or failed to properly waive that right-this Court is required to raise
this error sua sponte and remand for the PCRA court to correct that
mistake." Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super.
2011).
3
  Appellant, who had appointed counsel at trial and has been incarcerated
for years, alleged indigency in his PCRA petition. PCRA Petition, 4/12/2016,
at 7. The PCRA court apparently determined that Appellant indeed remained
indigent, as it appointed Attorney Yelen to represent him in litigating his
petition. Thus, although Appellant failed to allege indigency to proceed in
forma pauperis in this appeal, and this Court denied a belated motion to

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Pa.R.Crim.P. 904(C).    "This right to representation exists throughout the

post -conviction proceedings[.]" Commonwealth v. Brown, 836 A.2d 997,

998 (Pa. Super. 2003) (internal quotation marks and citations omitted).

Further, Rule 908, which governs hearings, provides: "The judge shall

permit the defendant to appear in person at the hearing and shall provide

the defendant an opportunity to have counsel." Pa.R.Crim.P. 908(C)
(emphasis added).    Indeed, if an evidentiary hearing is required, the Rules

mandate the appointment of counsel to represent    a   criminal defendant even

on a second or subsequent PCRA petition, where the defendant otherwise

has no entitlement to counsel. Pa.R.Crim.P. 904(D).

        Here, the PCRA court appears to have taken the mutually exclusive

positions that (1) the PCRA claims Appellant wished to make were devoid of

merit,4 but (2) there were material issues of fact which had to be resolved

before ruling upon the merits of Appellant's claims.5    In its opinion to this

Court, the PCRA court explains that dismissal of Appellant's petition was


proceed IFP without prejudice for Appellant to seek relief in the PCRA court,
we presume for the purposes of this discussion that Appellant is indigent.

4 Before granting PCRA counsel's motion to withdraw, "[t]he PCRA court...
must conduct its own independent evaluation of the record and agree with
counsel" that the issues which the petitioner wishes to raise lack merit.
Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012).
5 Compare Pa.R.Crim.P. 907 (providing that the PCRA court shall give notice
of its intent to dismiss the PCRA petition without a hearing if it determines
that there are no issues of material fact and the defendant is not entitled to
relief) with Pa.R.Crim.P. 908(A) (providing that the judge shall order a
hearing when the petition raises material issues of fact).

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warranted because he, acting pro se, failed to satisfy the evidentiary

requirements necessary to support his claims of, inter a/ia, ineffective

assistance of counsel and violation of Brady v. Maryland, 373 U.S. 83

(1963). PCRA Court Opinion, 9/3/2015, at 12. This suggests that the PCRA

court was of the opinion that there may have been an evidentiary showing

which, if made, could have entitled Appellant to PCRA relief.              Under such

circumstances, Rule 908(C) required that Appellant have the opportunity to

have counsel.

        Therefore, we hold that the PCRA court erred in holding        a   hearing on

Appellant's first PCRA petition after allowing counsel to withdraw.            At the

October 31, 2016 hearing, Appellant had       a   rule -based right to the assistance

of counsel in attempting to prove his PCRA claims. Accordingly, we remand

this case to the PCRA court to correct its error by appointing counsel prior to

holding   a   new hearing on Appellant's petition.6

        Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.




6   If Appellant wishes to waive
                               his right to counsel and proceed pro se, the
PCRA court must conduct an on -the -record           colloquy pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), to ensure that the
waiver is knowing and voluntary.

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Judgment Entered.




J   seph D. Seletyn,
Prothonotary

Date: 8/1/2017




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