J-S45014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ALBERT G. MAXSON,                          :
                                               :
                       Appellant               :      No. 1805 MDA 2017

           Appeal from the Judgment of Sentence November 2, 2017
               in the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0003361-2016

BEFORE:      OTT, J., MUSMANNO, J., and PLATT*, J.

MEMORANDUM BY MUSMANNO, J.:                         FILED NOVEMBER 20, 2018

       Albert G. Maxson (“Maxson”), pro se, appeals from the judgment of

sentence imposed upon the revocation of his parole. We remand for further

proceedings.

       The trial court concisely summarized the procedural history as follows:

             On or about May 5, [2]016, [Maxson] was arrested and
       charged with burglary and criminal mischief. On August 15, 2016,
       he pleaded guilty to burglary[,] and the criminal mischief charge
       was withdrawn. He was sentenced to 9-23 months in Dauphin
       County Prison[, plus] 2 years of County Probation. On September
       26, 2017, a Revocation Hearing Request form was filed[,]
       indicating [that Maxson] had violated his probation/parole for
       incurring new charges, failing to report, and failing to make
       payments on his restitution, fines and costs. A revocation hearing
       was held [on] November 2, 2017[,1 at the close of which the trial
       court revoked Maxson’s parole and resentenced him to serve 11
       months and twenty days in prison, consecutively with a 24-month
       term of probation.]
____________________________________________


1 Maxson was represented by counsel with the Dauphin County Public
Defender’s Office.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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             On November 6, 201[7], [Maxson, pro se,] filed [a] timely
      Notice of Appeal [] with the Superior Court of Pennsylvania. [The
      trial c]ourt ordered [Maxson,] on November 28, 2017, to file a
      concise statement of matters complained of on appeal pursuant
      to Pa.R.A.P. 1925(b). [Maxson] complied with said Order on
      December 14, 2017[, and filed a pro se Concise Statement]. No
      transcripts were requested. Initially, on January 30, 2018, the
      Superior Court dismissed the appeal for failure to file a brief.
      However[,] on February 2, 2018[,] that [O]rder was vacated [by
      the Superior Court,] and [the trial c]ourt was ordered to determine
      whether counsel had abandoned [Maxson]. [The trial c]ourt held
      a hearing on February 9, 2018, and[, by an Order entered that
      same date,] found that Maxson had not informed the Public
      Defender’s Office that he wished to pursue an appeal, and he filed
      his Notice of Appeal pro se[;] thus[,] that [O]ffice was unaware of
      it and had not abandoned him.

Trial Court Opinion, 3/7/18, at 1-2 (footnote added). Notably to the instant

appeal, the certified record does not include a transcript from the February 9,

2018 hearing. Moreover, the trial court’s February 9, 2018 Order does not

indicate whether the court had conducted a colloquy to determine whether

Maxson’s desire to waive his right to direct appeal counsel was knowing,

intelligent and voluntary, pursuant to Commonwealth v. Grazier, 713 A.2d

81 (Pa. 1998).

      Maxson has filed a pro se brief raising several issues for this panel’s

review. Based on the record before us, however, we cannot consider these

issues at this time.   It is well established that a criminal appellant has a

constitutional right to counsel on direct appeal. Commonwealth v. Wrecks,

931 A.2d 717, 722 (Pa. Super. 2007). Further, a Grazier hearing is required

before we may adjudicate an appeal, even where (1) a particular appellant


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J-S45014-18


“clearly   and   unequivocally   indicates   a   desire   to   represent   himself,”

Commonwealth v. Robinson, 970 A.2d 455, 459-60 (Pa. Super. 2009);

and/or (2) neither of the parties challenges the lack of a Grazier hearing,

see Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011), as

is the situation here.

      Accordingly, we remand this case for the trial court to conduct an on-

the-record Grazier hearing within thirty days, to determine whether Maxson

wants to continue to proceed pro se.         If, however, Maxson states that he

wishes to be represented by counsel, and the trial court determines that he

remains indigent, the trial court shall appoint him direct appeal counsel. See

Wrecks, supra.

      Case remanded with instructions; panel jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2018




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