J-S85019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
               v.                                :
                                                 :
                                                 :
    DAVID STOKES                                 :
                                                 :
                          Appellant              :   No. 3189 EDA 2015

                  Appeal from the PCRA Order October 2, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002599-2010

BEFORE: PANELLA, RANSOM, and MUSMANNO, JJ.

MEMORANDUM BY RANSOM, J.:                                FILED JANUARY 09, 2017

        David Stokes appeals pro se from the order entered October 2, 2015,

dismissing his petition for relief pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        In October 2011, a jury convicted Appellant of murder in the first

degree, violating the Uniform Firearms Act (“VUFA”), and aggravated

assault.1 Appellant was subsequently sentenced to a mandatory sentence of

life imprisonment without the possibility of parole for first-degree murder,

followed by a consecutive sentence of ten to twenty years for aggravated

assault.     Appellant’s sentence of three and one half to seven years’

incarceration       for   VUFA   was   run     concurrently   with   his   sentence   for

aggravated assault. This Court affirmed the judgment of sentence on direct

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1
    18 Pa.C.S. §§ 2502(a), 6105, 2702, respectively.
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appeal, and the Supreme Court denied Appellant’s petition for allowance of

appeal. Commonwealth v. Stokes, 78 A.3d 644 (Pa. Super. 2013), appeal

denied, 89 A.3d 661 (Pa. 2013).

      On October 17, 2013, Appellant timely filed a PCRA petition, and

counsel was appointed. In May of 2015, counsel submitted a no-merit letter

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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). In

August 2015, Appellant filed a motion to waive counsel.

      In August 2015, the PCRA court issued a Pa.R.Crim.P. 907 notice of its

intent to dismiss Appellant’s petition without a hearing. In September 2015,

Appellant pro se filed a response to the Rule 907 letter.    On October 2,

2015, the court dismissed Appellant’s petition and granted appointed

counsel’s petition to withdraw.

      Appellant then filed the instant timely appeal and thereafter filed a

court-ordered 1925(b) statement.       The PCRA court issued a responsive

statement.

      Appellant raises the following issue:

      The lower court abused [its] discretion when it dismissed the
      PCRA petition, without conducting a Grazier hearing as
      requested by the Petitioner, and as verified by the criminal
      docket in this case.

Appellant’s Brief at 1.

      The standard of review regarding an order denying a petition under

the PCRA is whether the determination of the PCRA court is supported by the


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evidence of record and is free of legal error.          Commonwealth v. Ragan,

923 A.2d 1169, 1170 (Pa. 2007).                We afford the court’s factual findings

deference unless there is no support for them in the certified record.

Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).

       Appellant relies on Faretta v. California2 to support his assertion that

the trial court erred in failing to conduct a Grazier3 hearing.           Appellant’s

Brief at 3.    However, Appellant’s reliance on Faretta is misplaced.            This

court agrees that “in any case where a defendant seeks self-representation

in a PCRA proceeding and where counsel has not properly withdrawn, a

[Grazier] hearing must be held.” Commonwealth v. Robinson, 970 A.2d

455, 456 (Pa. Super. 2009). However, a Grazier hearing is only required in

instances when a defendant seeks self-representation and counsel has not

properly withdrawn. Id.

       In the instant case, counsel filed a “no-merit” letter pursuant to

Turner/Finley.

       “The ‘no-merit’ letter should include a description of the nature
       and extent of the attorney’s review, a list of the issues that the

____________________________________________


2
  Faretta v. California, 95 S. Ct. 2525 (1975) (holding that the right to
proceed pro se is guaranteed so long as the defendant understands the
nature of his choice.)
3
  Commonwealth v. Grazier, 713 A.2d A.2d 81, 82 (Pa. 1998) (requiring a
colloquy to determine if the petitioner was knowingly, intelligently, and
voluntarily relinquishing his right to counsel).



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      PCRA petitioner wishes to have reviewed, and an explanation of
      why the issues lack merit.”

Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003).

Furthermore, counsel must also notify the Appellant that counsel is filing a

petition to withdraw and provide him with a copy of the petition, as well as

inform the Appellant of his right to retain counsel, proceed pro se, and/or file

a supplemental brief. Commonwealth v. Walters, 135 A.3d 589, 591 (Pa.

Super. 2016).

      Upon review of the record, appointed counsel followed the proper

procedure for withdrawing under Turner/Finley.             On May 1, 2015,

appointed counsel filed a Finley letter along with a motion to withdraw. A

copy of the letter was sent to Appellant advising him that he must proceed

with privately retained counsel or proceed pro se. See generally Motion to

Withdraw as Counsel, 5/1/15. Three months after receiving the “no merit”

letter, Appellant filed a motion to waive counsel.    See Waiver of Counsel,

8/5/15.   A Grazier hearing was not required, as counsel’s request to

withdraw was granted. When the PCRA court granted appointed counsel’s

request to withdraw, Appellant received the same relief that he requested

through a Grazier hearing. As Appellant was permitted to proceed pro se, a

Grazier hearing was unnecessary.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/2017




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