J-S05031-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LLOYD GEORGE MAYS,                         :
                                               :
                       Appellant               :       No. 644 MDA 2019

              Appeal from the PCRA Order Entered March 19, 2019
                in the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0000643-2011

BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MARCH 27, 2020

        Lloyd George Mays (“Mays”) appeals from the Order dismissing his

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546.             We vacate the PCRA court’s Order, and

remand with instructions.

        In 2012, a jury found Mays guilty of rape and related charges, after

sexually assaulting his mother on two separate occasions.1 The trial court

originally sentenced Mays to an aggregate term of 31 to 82 years in prison,

but upon consideration of Mays’s timely post-sentence Motion, resentenced

Mays to an aggregate term of 23½ to 62 years in prison. Mays filed another

post-sentence Motion, which the trial court denied. This Court affirmed Mays’s

judgment of sentence. See Commonwealth v. Mays, 91 A.3d 1289 (Pa.


____________________________________________


1   Mays represented himself at trial, with the assistance of stand-by counsel.
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Super. 2013) (unpublished memorandum). Mays did not seek review in the

Pennsylvania Supreme Court.

       Mays filed his first pro se PCRA Petition in June 2014, alleging

abandonment by prior counsel for failing to file a petition for allowance of

appeal to the Pennsylvania Supreme Court. The PCRA court appointed Mays

counsel. Following a hearing, the PCRA court denied Mays’s first Petition. On

direct appeal, this Court reversed the PCRA court’s Order, and remanded the

case to the PCRA court, with directions to reinstate Mays’s right to file a

petition for allowance of appeal, nunc pro tunc, within 30 days.2          See

Commonwealth v. Mays, 122 A.3d 1125 (Pa. Super. 2015) (unpublished

memorandum).

       On July 22, 2015, the PCRA court entered an Order reinstating Mays’s

right to file a petition for allowance of appeal, nunc pro tunc. Mays timely

filed a nunc pro tunc Petition for allowance of appeal, which the Supreme Court

ultimately denied on December 30, 2015. See Commonwealth v. Mays,

130 A.3d 1288 (Pa. 2015).

       On January 19, 2016, Mays filed a pro se PCRA Petition challenging,

inter alia, the legality of his sentence.        The PCRA court appointed Mays

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2 In December 2014, while the appeal was pending, Mays filed a second pro
se PCRA Petition, which the PCRA court dismissed on the basis that it lacked
jurisdiction to consider it. See Commonwealth v. Lark, 746 A.2d 585, 588
(Pa. 2000) (holding that where a PCRA appeal is pending, a subsequent PCRA
petition cannot be filed until resolution of review of the pending PCRA petition
by the highest state court in which review is sought, or at expiration of the
time for seeking such review).

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counsel, who filed an Amended PCRA Petition on his behalf. In the Amended

PCRA Petition, counsel asserted that the trial court had imposed its sentence

based on an incorrect prior record score. The PCRA court conducted a hearing

on May 23, 2016, after which it ordered the parties to file memoranda in

support of their respective positions within 30 days. The PCRA court ultimately

concluded that the trial court had improperly calculated Mays’s sentence based

on a prior record score of 4, rather than the correct score of 3, and that all

prior counsel had been ineffective for failing to identify the error. The PCRA

court therefore granted Mays’s Petition, and scheduled a resentencing

hearing.

      On September 7, 2016, the trial court resentenced Mays to an aggregate

term of 21 years, 11½ months, to 62 years in prison. Mays did not file a direct

appeal.

      Mays filed the instant pro se PCRA Petition on April 17, 2017, and the

PCRA court appointed Mays counsel. During a scheduled PCRA hearing, the

Commonwealth moved to dismiss Mays’s Petition. On December 19, 2017,

the PCRA court entered an Order directing the parties to file memoranda in

support of their respective positions within 30 days of the date of the Order.

The PCRA court also indicated that it would not take further testimony. The

Commonwealth complied, but Mays failed to file a memorandum. The PCRA

court subsequently issued Notice of its intent to dismiss Mays’s Petition as

untimely filed. On March 19, 2019, the PCRA court dismissed Mays’s Petition.




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Mays, pro se, filed a Notice of Appeal on April 22, 2019.3 The PCRA court

subsequently ordered Mays to file a concise statement of matters complained

of on appeal pursuant to Pa.R.A.P. 1925(b), and Mays complied.

       In his pro se Concise Statement, Mays avers, inter alia, that “[t]he PCRA

[c]ourt denied [Mays’s] rule-based right to effective PCRA counsel.” Concise

Statement, 5/22/19 (some capitalization omitted).         We will review this

assertion as a preliminary matter.

       The record reflects that Mays filed the instant pro se PCRA Petition on

April 17, 2017. The same day, the PCRA court appointed Michael McHale,

Esquire (“Attorney McHale”), as PCRA counsel. From the certified record, it

does not appear that appointed counsel filed an amended PCRA petition on

Mays’s behalf. Indeed, the only filing by Attorney McHale, reflected on the

docket, is a Motion for Continuance regarding the PCRA hearing, which was

denied.4    The docket does not indicate that Attorney McHale at any point

sought, or was granted, leave to withdraw from representation, nor did the




____________________________________________


3 We observe that Mays’s pro se Notice of Appeal is facially untimely. We
acknowledge that the timeliness of an appeal implicates this Court’s
jurisdiction. Commonwealth v. Trinidad, 96 A.3d 1031, 1034 (Pa. Super.
2014). However, for the reasons discussed infra, we conclude that Mays’s
untimely pro se filing does not preclude relief under these particular
circumstances.

4It is unclear from the record whether Attorney McHale appeared at the PCRA
hearing.



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PCRA court ever conduct a Grazier5 hearing to allow Mays to proceed pro se.6

Further, the certified record contains pro se correspondence from Mays to

Attorney McHale, in which Mays indicated that he had not been contacted by

Attorney McHale and requested a response.

       On August 28, 2019, after Attorney McHale failed to file an appellate

brief on Mays’s behalf, this Court entered an Order remanding this matter to

the PCRA court to determine whether Attorney McHale had abandoned Mays.

In its October 3, 2019 Order in response, the PCRA court determined that

Attorney McHale had abandoned Mays, explained that Attorney McHale had

been suspended from the practice of law,7 and appointed new counsel. We

agree with the PCRA court’s determination that Attorney McHale abandoned

Mays. However, the record supports Mays’s apparent assertion that he was

abandoned by Attorney McHale during the pendency of his PCRA proceedings,

prior to the filing of the Notice of Appeal. See Commonwealth v. Wooden,

____________________________________________


5   See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).

6 In his PCRA Petition, and the attachment thereto, Mays indicated that he did
not wish to be represented by counsel. However, having been appointed
counsel, Mays would not have been permitted to proceed pro se in the absence
of a Grazier hearing and the withdrawal of counsel. See Commonwealth v.
Williams, 151 A.3d 621, 623 (Pa. Super. 2016) (explaining that hybrid
representation is not permitted).

7 Attorney McHale was suspended from the practice of law for a period of one
year and one day, by consent, on September 20, 2019, after Mays had filed
a pro se Notice of Appeal in this case. See DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA, https://www.padisciplinaryboard.org/
for-the-public/find-attorney/attorney-detail/201826 (last visited March 3,
2020).

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215 A.3d 997, 998-1000 (Pa. Super. 2019) (holding that the record supported

a finding of abandonment by PCRA counsel, where an amended PCRA petition

was filed nearly five years after the PCRA petition had been filed, and the

amended petition was the only filing by counsel; the appellant later filed an

inmate document request and an untimely pro se notice of appeal; counsel

had never withdrawn from representation; and counsel had been placed on

administrative suspension by the Disciplinary Board); id. at 1000 (concluding

that an untimely filed, pro se notice of appeal did not preclude relief in light

of appellant’s abandonment by counsel).

      Based upon the foregoing, we vacate the Order dismissing Mays’s PCRA

Petition, and remand for further proceedings as are appropriate under the

PCRA. On remand, the PCRA court shall determine whether Mays is entitled

to the appointment of counsel pursuant to Pa.R.Crim.P. 904 (concerning the

entry of appearance, appointment of counsel and in forma pauperis status),

and whether Mays wishes to proceed pro se or with the assistance of counsel.

If Mays is entitled to and desires representation, the PCRA court shall appoint

new counsel before the case proceeds before the PCRA court. See Wooden,

215 A.3d at 1001 (remanding for appointment of counsel and further

proceedings).

      Order vacated.      Case remanded with instructions.          Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/27/2020




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