J-S72036-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                Appellee               :
                                       :
                 v.                    :
                                       :
RICHARD DALE HELMS,                    :
                                       :
               Appellant               :    No. 786 MDA 2016

                Appeal from the PCRA Order April 21, 2016,
              in the Court of Common Pleas of Berks County,
           Criminal Division at No(s): CP-06-CR-0000395-2006,
           CP-06-CR-0002897-2006, CP-06-CR-0002898-2006,
                         CP-06-CR-0004789-2006

BEFORE: GANTMAN, P.J., DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED NOVEMBER 22, 2016

     Richard Dale Helms (Appellant) appeals pro se from the order of April

21, 2016, which denied his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.    Upon review, we vacate the

order of the PCRA court and remand for proceedings consistent with this

memorandum.

     On June 25, 2008, a jury found Appellant guilty of multiple sex

offenses related to Appellant’s sexual abuse of four separate minor victims.

He was sentenced to an aggregate term of 124 to 248 years of

incarceration. This Court affirmed Appellant’s judgment of sentence, and on

October 8, 2010, our Supreme Court denied Appellant’s petition for




*Retired Senior Judge assigned to the Superior Court.
J-S72036-16


allowance of appeal. Commonwealth v. Helms, 998 A.2d 1012 (Pa. Super.

2010), appeal denied, 8 A.3d 898 (Pa. 2010).

      Appellant timely filed a PCRA petition on September 14, 2011.

Counsel was appointed, and he eventually filed a no-merit letter and petition

to withdraw over two years later, on January 10, 2014. The PCRA court

permitted counsel to withdraw and issued a notice of its intent to dismiss the

PCRA petition without a hearing. Appellant responded by filing an amended

PCRA petition, which was dismissed on February 4, 2014.

      Appellant timely filed a notice of appeal to this Court.     This Court

reversed the PCRA court’s dismissal of Appellant’s PCRA petition and was

concerned primarily with the delay between the appointment of PCRA

counsel on September 22, 2011, and the eventual filing of the no-merit

letter and request to withdraw on January 10, 2014.

             For two years, counsel failed to perform any action in this
      matter except to file extensions. When Appellant repeatedly and
      emphatically asked to proceed pro se to file the amended PCRA
      petition that counsel was unable to complete, he was denied that
      right. In 2014, two and one-half years after the initial petition
      was filed, counsel obtained withdrawal based upon an utterly
      defective no-merit letter.

Commonwealth v. Helms, 108 A.3d 115 (Pa. Super. 2014) (unpublished

memorandum at 1).

      Thus, this Court held that the PCRA court erred by denying Appellant’s

earlier request to proceed pro se that he filed on August 19, 2013.        This

Court remanded for the PCRA court to “conduct a proper waiver-of-counsel



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colloquy” and thereafter permit Appellant to file an amended PCRA petition.

Id. at 5.

      In response to this Court’s remand, on November 20, 2014, the PCRA

court sent Appellant an order that provided the following:

             AND NOW, this 20th day of November, 2014,
      contemporaneously with the filing of this Order, a Waiver of
      PCRA Counsel colloquy has been mailed to the Defendant. The
      Defendant shall have thirty days to sign the colloquy and return
      it in the postage-paid envelope, which has also been provided.
      Once said colloquy is received, the Defendant will be permitted
      to file an amended PCRA petition.

Order, 11/20/2014.

      On December 11, 2014, the clerk of courts docketed Appellant’s signed

colloquy. Appellant also filed an amended PCRA petition. On July 23, 2015,

the PCRA court issued a notice of intent to dismiss Appellant’s petition

without a hearing.   Appellant filed a response, and on April 20, 2016, the

PCRA court dismissed Appellant’s petition. Appellant timely filed a notice of

appeal.

      Before we reach the substantive issues set forth by Appellant, we

consider whether the PCRA court complied with this Court’s previous

directive to “conduct a proper waiver-of-counsel colloquy.” Helms, 108 A.3d

115 (Pa. Super. 2014) (unpublished memorandum at 5). We are cognizant

that Appellant has not argued that he wished to proceed with counsel. “That

fact, however, does not prevent us from sua sponte addressing this issue

and remanding his case.” Commonwealth v. Stossel, 17 A.3d 1286, 1290



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(Pa. Super. 2011).        In Stossel, this Court held explicitly that “where an

indigent, first-time PCRA petitioner was denied his right to counsel - or failed

to properly waive that right - this Court is required to raise this error sua

sponte and remand for the PCRA court to correct that mistake.” Id.

      Thus, we now must determine whether the PCRA court’s act of sending

Appellant a waiver-of-counsel colloquy form to fill out and send back

complied with this Court’s directive. In Commonwealth v. Robinson, 970

A.2d 455 (Pa. Super. 2009) (en banc), this Court reiterated the principle

that “[w]hen a waiver of the right to counsel is sought at the post-conviction

and appellate stages, an on-the-record determination should be made that

the waiver is knowing, intelligent, and voluntary.” Id. at 457 (emphasis

added). See also Pa.R.Crim.P. 121(C) (“When the defendant seeks to waive

the right to counsel after the preliminary hearing, the judge shall ascertain

from the defendant, on the record, whether this is a knowing, voluntary,

and intelligent waiver of counsel.”) (emphasis added).               Moreover, the

comments to Rule 121 provide “at a minimum, that the judge … ask

questions   to   elicit   the   information   set   forth   in   paragraph   (A)(2).”

Pa.R.Crim.P. 121 (comment).

      Furthermore, it is a long-standing principle that “a signed statement

alone cannot establish that a defendant has effectively waived this right [to

counsel].” Commonwealth ex rel. Clinger v. Russell, 213 A.2d 100, 101

(Pa. Super. 1965).



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      One must bear in mind that an accused will often sign such a
      prepared statement at a time when he is subject to the
      conflicting pressures inherent in all accusatory proceedings. In
      the absence of sufficient oral inquiry, such a signed statement
      will not adequately demonstrate that the accused comprehended
      and assented to the contents of the writing. The court must
      examine the accused’s awareness of the nature of the crime, the
      range of allowable punishments thereunder, and all other facts
      essential to a broad understanding of the whole matter. Only at
      the completion of such a comprehensive inquiry, can the court
      be confident that the defendant intelligently waived his right to
      counsel.

Id. See also Commonwealth v. Clyburn, 42 A.3d 296, 300 (Pa. Super.

2012) (clarifying that our jurisprudence requires “an appropriate oral

colloquy to accompany a written waiver”).

      Based on the foregoing, it is clear that the PCRA court did not comply

with this Court’s directive to “conduct a proper waiver-of-counsel colloquy.”

Helms, 108 A.3d 115 (Pa. Super. 2014) (unpublished memorandum at 5).

By sending a form to Appellant for him to sign, the PCRA court did not

comply with the mandates of Pa.R.Crim.P. 121. See Stossel, 17 A.3d at

1289 (“[I]f a PCRA defendant indicates a desire to represent himself, it is

incumbent on the PCRA court to elicit information from the defendant that

he understands the items outlined in Pa.R.Crim.P. 121(A)(2)(a), (d), (e),

and (f).”).

      Accordingly, we vacate the order of the PCRA court “and remand for

the court to conduct a Grazier[1] hearing to determine if [Appellant] is


1
  Commonwealth v. Grazier, 713 A.2d 81 (1998) (holding that “when a
waiver of the right to counsel is sought at the post-conviction and appellate


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knowingly, intelligently, and voluntarily waiving his right to counsel.”

Stossel, 17 A.3d at 1290.

     Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/22/2016




stages, an on-the-record determination should be made that the waiver is a
knowing, intelligent, and voluntary one”).


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