J-S06045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

CHAD D. BENNER,

                          Appellant                  No. 40 MDA 2015


             Appeal from the Order Entered November 21, 2014
              In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0003805-2010


BEFORE: PANELLA, J., MUNDY, J., AND STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                   FILED JANUARY 28, 2016

      Appellant Chad D. Benner files this pro se appeal from the order

entered by the Court of Common Pleas of Luzerne County denying

Appellant’s petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-46.    We remand to allow Appellant to file an amended Concise

Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b)

and direct the PCRA court to file a supplemental opinion pursuant to

Pa.R.A.P. 1925(a).

      In 2010, Appellant was charged in connection with allegations of

sexual assault made by Caitlyn Holvey, the younger sister of Appellant’s

girlfriend, Christina Holvey.    Caitlyn claimed that Appellant had sexually

abused her years earlier in 2003 or 2004 when she was fourteen or fifteen

years old.   On April 14, 2011, a jury convicted Appellant of Involuntary



*Former Justice specially assigned to the Superior Court.
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Deviate Sexual Intercourse (“IDSI”) and three counts of indecent assault.

The trial court sentenced Appellant to a mandatory minimum sentence of ten

to twenty years incarceration for IDSI pursuant to 42 Pa.C.S. § 9714 based

on Appellant’s prior sodomy conviction.      The trial court also sentenced

Appellant to consecutive terms of one to two years imprisonment for each of

the indecent assault convictions, rendering an aggregate sentence of

thirteen to twenty-six years imprisonment. Appellant filed a post-sentence

motion which the trial court subsequently denied.

      On September 13, 2012, this Court vacated Appellant’s sentence,

agreeing that there was insufficient evidence to support one of the indecent

assault convictions.    Upon remand, Appellant was resentenced by the trial

court on September 12, 2013, to an aggregate sentence of twelve to

twenty-four years imprisonment with credit for time served.

      On March 31, 2014, Appellant filed the instant pro se PCRA petition,

claiming, inter alia, that he was denied due process as the Commonwealth

failed to prove the commission of offenses charged upon a date fixed with

reasonable certainty as dictated by Commonwealth v. Devlin, 460 Pa.

508, 333 A.2d 888 (1975).        The PCRA court appointed counsel, Jeffrey

Yelen, Esq., who filed a brief in support of Appellant’s pro se petition. After

a hearing, the PCRA court filed an order on November 21, 2014, denying

Appellant’s petition.

      On December 18, 2014, Appellant filed a pro se notice of appeal.

Appellant also filed a motion with the PCRA court to reconsider the dismissal

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of his petition, arguing that PCRA counsel was ineffective in failing to

adequately argue his claim that the prosecution did not prove the date of his

offense with sufficient certainty pursuant to Devlin.        Appellant asked that

Atty. Yelen withdraw his representation and requested the appointment of

“competent counsel” or permission to file a pro se appeal.

      On December 22, 2014, Atty. Yelen filed a notice of appeal on

Appellant’s behalf along with a motion for the appointment of conflict

counsel. The PCRA court allowed Atty. Yelen to withdraw, appointed Mary V.

Deady, Esq. as substitute counsel, and ordered Appellant to file a Concise

Statement of the Errors Complained of on Appeal pursuant to Pennsylvania

Rule of Appellate Procedure 1925(b).            Atty. Deady complied with this

request, filing a 1925(b) statement raising two issues for appeal:                 (1)

whether trial counsel was ineffective in failing to challenge the motive of the

complainant   through   the   admission    of    letters   sent   to   Appellant   by

complainant’s sister and (2) whether Appellant received an illegal mandatory

minimum sentence under 42 Pa.C.S. § 9718.

      On May 22, 2015, Appellant filed an Application for Relief in this Court,

seeking to proceed pro se, claiming Atty. Deady ignored his requests to

preserve his challenge under Devlin. On June 9, 2015, this Court issued a

per curiam order, directing the PCRA Court to hold a hearing pursuant to

Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998) to determine

whether Appellant’s waiver of counsel is knowing, intelligent, and voluntary.




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      On June 17, 2015, the PCRA court filed an order and opinion

responding to Appellant’s counseled 1925(b) statement, finding that trial

counsel had a reasonable basis for not admitting the disputed letters to

challenge the motives of the complainant’s sister as Appellant would have

opened the door to a discussion of his prior conviction for sexual assault.

The PCRA court did not address or give its rationale for denying Petitioner’s

desired claim under Devlin. The PCRA court then transmitted the certified

record to this Court.

      On June 22, 2015, the PCRA court held a Grazier hearing and

determined that Appellant has an ”appreciatable” understanding that he is

waiving his right to representation by counsel and acknowledges he will be

required to raise his potential claims in a timely manner complying with all

procedural rules. Trial Court Order, 6/23/15, at 1. Accordingly, the PCRA

court granted Appellant’s request to proceed pro se.

      As Appellant’s counseled 1925(b) statement did not include the

particular issue that Appellant wishes to raise on appeal, we remand to the

PCRA court to allow Appellant to file an amended 1925(b) statement to

preserve the specific claims that Appellant desires to appeal. Appellant shall

file the amended statement within twenty-one (21) days of the filing of this

order. The PCRA court is directed to file a supplemental opinion pursuant to

Pa.R.A.P. 1925(a), within forty-five (45) days of the filing of Appellant's

amended 1925(b) statement.        Upon return of the certified record, the




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Prothonotary of the Superior Court is directed to establish a new briefing

schedule for the parties.

      Case remanded with directions. Panel jurisdiction retained.




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