J-S65025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
         v.                                    :
                                               :
                                               :
AMADU BARRY                                    :
                                               :
                 Appellant                     :   No. 798 EDA 2017

              Appeal from the Judgment of Sentence February 8, 2017
                 In the Court of Common Pleas of Chester County
               Criminal Division at No(s): CP-15-CR-0001096-2014


BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.

JUDGMENT ORDER BY OTT, J.:                             FILED JANUARY 11, 2018

        Amadu Barry appeals from the judgment of sentence imposed February

8, 2017, in the Chester County Court of Common Pleas, upon the revocation

of his parole. The trial court sentenced Barry to a term of 12 months and 29

days’ imprisonment, the balance of his sentence previously imposed on

September 10, 2014, following his guilty plea to four counts of access device

fraud.1 Contemporaneous with this appeal, Barry’s counsel has filed a petition

to withdraw from representation and an Anders brief.             See Anders v.

California, 386 U.S. 738 (1967); Commonwealth v. McClendon, 434 A.2d

1185 (Pa. 1981). For the reasons below, we vacate Barry’s parole revocation

sentence, deny counsel’s petition to withdraw, and remand for further

proceedings.
____________________________________________


1   See 18 Pa.C.S. § 4106(a)(3).
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       The relevant factual and procedural history underlying this appeal are

aptly summarized in the trial court opinion, and we need not reiterate them

herein.    See Trial Court Opinion, 3/29/2017, at 1-3.             Pertinent to our

disposition, however, we note that Barry appeared, pro se, via telephone, for

his February 8, 2017, revocation hearing and sentencing.

       Pennsylvania Rule of Criminal Procedure 708 provides that a trial court

may not revoke a defendant’s parole, unless there has been: “(1) a hearing

held as speedily as possible at which the defendant is present and

represented by counsel; and (2) a finding of record that the defendant

violated a condition of … parole.”             Pa.R.Crim.P. 708(B)(1)-(2) (emphasis

supplied). Our review of the record reveals Barry was unrepresented at his

revocation hearing, and there is no indication in the record that Barry

requested to proceed pro se or waived his right to counsel. See, generally,

N.T., 2/8/2017, at 1-10.

       In fact, after Barry filed a pro se notice of appeal, this Court issued a

per curium order, directing the trial court to conduct a Grazier2 hearing to

determine if Barry wanted to proceed pro se. See Order, 4/24/2017. The

order specifically noted it appeared from the docket that Barry was

unrepresented at his revocation hearing. See id. Thereafter, the trial court

complied with our directive, and following a Grazier hearing, appointed




____________________________________________


2   See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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present counsel to represent Barry on appeal. Counsel then filed an Anders

brief and petition to withdraw.

       Our review of the record reveals that although counsel substantially

complied with the requirements of Anders and its progeny,3 we are,

nevertheless, constrained to deny counsel’s petition to withdraw because

Barry’s appeal is not wholly frivolous. See Commonwealth v. Tukhi, 149

A.3d 881, 889 (Pa. Super. 2016) (denying counsel’s petition to withdraw when

“independent review of the record reveals a potentially non-frivolous issue not

raised by counsel”).       Barry was entitled to the assistance of counsel to

represent him at the February 8, 2017, revocation hearing.        Pa.R.Crim.P.

708(B)(1). Neither the trial court, nor newly appointed counsel, address this

claim on appeal. Accordingly, we are compelled to vacate the judgment of

sentence imposed on February 8, 2017, deny counsel’s petition to withdraw,

and remand for further proceedings.

       Judgment of sentence vacated. Petition to withdraw as counsel denied.

Case remanded for further proceedings. Jurisdiction relinquished.




____________________________________________


3 See Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013)
(en banc).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/18




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