J-S53035-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RONALD JAMES BAILEY,

                            Appellant                 No. 380 WDA 2014


            Appeal from the Judgment of Sentence January 30, 2014
                in the Court of Common Pleas of Fayette County
              Criminal Division at Nos.: CP-26-CR-0000622-2013;
                            CP-26-CR-0001113-2013


BEFORE: DONOHUE, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 22, 2014

        Appellant, Ronald James Bailey, appeals pro se from the amended

judgment of sentence entered pursuant to his negotiated guilty plea.

Because the trial court failed to determine if Appellant voluntarily,

knowingly, and intelligently waived his constitutional right to counsel on

appeal, we remand.1


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   Appellant pleaded guilty to three counts each of possession with intent to
deliver a controlled substance (PWID) and possession of a controlled
substance; and one count each of possession of drug paraphernalia, driving
under the influence-general impairment (DUI), driving under a suspended
license-DUI related (DUS), driving an unregistered vehicle, operating a
vehicle without required financial responsibility, disregarding traffic lane, and
careless driving, See 35 P.S. §§ 730-113(a)(30), 780-113(a)(16), and 780-
(Footnote Continued Next Page)
J-S53035-14



        On September 3, 2013, Appellant pleaded guilty pursuant to a

negotiated guilty plea.         On September 24, 2013, after finding Appellant

RRRI2 eligible, the court sentenced Appellant to terms of not less than

eighteen nor more than forty-eight months for PWID, not less than nine

months nor more than two years for DUI, and not less than two months,

seven days nor more than ninety days on the DUS conviction.         (See N.T.

Sentencing, 9/24/13, at 9-13). All sentences were to run consecutively. On

January 30, 2014, after advice from the Department of Corrections of a

calculation error, the court filed an amended sentence.          The amended

sentence increased the RRRI minimum sentence on the PWID count to

twenty months, increased the DUI minimum to ten months, and increased

the DUS sentence to two months, fifteen days.         (See Amended Sentence

Order, PWID, 1/30/14; Amended Sentence Order, DUI, 1/30/14; Amended

Sentence Order, DUS, 1/30/14).

        Appellant, although still represented by appointed counsel, filed an

otherwise timely pro se notice of appeal.3        On March 7, 2014, the court

ordered Appellant to file a Rule 1925(b) statement of errors complained of

                       _______________________
(Footnote Continued)

113(a)(32) and 75 Pa.C.S.A. §§ 3802(a)(1), 1543(b)(1.1), 1301(a),
1786(f), 3309(1), and 3714(a), respectively.
2
    See Recidivism Risk Reduction Incentive, 61 Pa.C.S.A. §§ 4501-4512.
3
  We give Appellant the benefit of the Prisoner Mailbox Rule.             See
Commonwealth v. Jones, 700 A.2d 423, 726 (Pa. 1997).



                                            -2-
J-S53035-14



on appeal. (See Order, 3/07/14); see also Pa.R.A.P. 1925(b). On April 25,

2014, a month after the deadline to file a statement of errors had expired,

Appellant’s counsel filed a motion to withdraw on the basis that “reviewing

his file and colloquy presented to the [c]ourt demonstrates no issues.”

(Motion to Withdraw, 4/25/14, at 1).           On May 1, 2014, the court granted

counsel’s motion without a hearing and, on May 6, 2014, the court filed a

Rule 1925(a) statement in lieu of opinion.4 See Pa.R.A.P. 1925(a).

       Appellant presents four issues for this Court’s review:

       1.   Is the [c]ommon [p]leas [c]ourt within it’s [sic] power to
       amend, change, or alter, any facet of a [negotiated] plea
       sentence, sua sponte?

       2.     Is the [c]ommon [p]leas [c]ourt within it’s [sic] power to
       amend, change, or alter, any facet of a [negotiated] plea
       sentence, sua sponte after the 30 days dictated by statute,
       under Pa.C.S.[A.] § 5505, which clearly states: the courts [sic]
       jurisdiction extends for 30 days after the entry of a final order,
       beyond which time the court is divested of jurisdiction?

       3.    Has [Appellant’s] [c]onstitutional [r]ight to [d]ue [p]rocess
       been violated, in a criminal proceeding, where the [c]ommon
       [p]leas [c]ourt has violated [Appellant’s] negotiated plea
       sentences by amending, changing, and/or altering the sentences
       that [Appellant] agreed to by foregoing trial, and accepting by
       entry of his guilty pleas, more than 30 days after the sentencing
       orders were entered?



____________________________________________


4
  The trial court represented that it could not “issue a complete opinion in
this matter” because Appellant did not file a Rule 1925(b) statement of
errors complained of on appeal. (Statement in Lieu of Opinion, 5/06/14, at
2).



                                           -3-
J-S53035-14


      4.    Is [Appellant] entitled to enter a plea of [n]ot [g]uilty and
      be granted a new trial in light of the numerous [f]e[d]eral and
      [s]tate [c]onstitutional [r]ights violations regarding the fact that
      [Appellant’s] current [negotiated] pleas are illegal and thus
      entered into unknowingly and unwillingly[?]

(Appellant’s Brief, at 6-7).

      Before we consider the merits of Appellant’s issues, we must

determine whether Appellant knowingly, voluntarily, and intelligently waived

his right to counsel and chose to proceed pro se with this appeal.

      It is well-settled that the right to counsel on direct appeal is a

constitutional one.   See Commonwealth v. Wrecks, 931 A.2d 717, 722

(Pa.Super. 2007). However, an appellant “may, acting pursuant to the rules

of criminal procedure, proceed on his own behalf.”          Commonwealth v.

Grazier, 713 A.2d 81, 82 (Pa. 1998) (citations omitted). “When 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 a knowing,

intelligent, and voluntary one.” Id. (citations omitted).

      In this case, while still represented by appointed counsel, Appellant

filed a pro se notice of appeal. Although Appellant was not entitled to hybrid

representation, see Commonwealth v. Jette, 23 A.3d 1032, 1035 (Pa.

2011), the court ordered him to file a Rule 1925(b) statement. In response,

neither Appellant nor his counsel filed either a Rule 1925(b) statement of




                                     -4-
J-S53035-14


errors or a statement of intent to file a brief pursuant to Anders/Santiago.5

See Pa.R.A.P. 1925(b), (c)(4).

       Instead, after the deadline for filing a Rule 1925(b) statement expired,

counsel filed a motion to withdraw from representation, which the trial court

granted without a hearing. (See Motion to Withdraw, 4/25/14, at 1; Order,

5/01/14). We are constrained to conclude that this was error.

       The trial court failed to determine whether Appellant knowingly,

intelligently, and voluntarily intended to waive counsel when he filed his pro

se notice of appeal. See Grazier, supra at 82. Therefore, we remand this

case for the trial court to conduct a Grazier hearing within thirty days of the

date of this decision. See id.

       If the court finds that the Grazier standard for a knowing, voluntary

and intelligent waiver is not met, it shall appoint new counsel to proceed on

Appellant’s behalf.     Counsel shall either file a nunc pro tunc Rule 1925(b)

statement of errors6 and an advocate’s brief, or petition to withdraw in

compliance with Anders/Santiago, and their progeny.


____________________________________________


5
  Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
6
  “If an appellant in a criminal case was ordered to file a Statement and
failed to do so, such that the appellate court is convinced that counsel has
been per se ineffective, the appellate court shall remand for the filing of a
Statement nunc pro tunc.” Pa.R.A.P. 1925(c)(3).




                                           -5-
J-S53035-14


      Alternatively, if the court finds that Appellant’s waiver is knowing,

intelligent, and voluntary, then it shall order Appellant to file a nunc pro tunc

pro se Rule 1925(b) statement of errors.

      Case remanded. Panel jurisdiction retained.




                                      -6-
