J-A14015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                   Appellee             :
                                        :
              v.                        :
                                        :
 SCOTT MIGNOGNA                         :
                                        :
                   Appellant            :        No. 3890 EDA 2017

              Appeal from the PCRA Order October 25, 2017
              In the Court of Common Pleas of Bucks County
           Criminal Division at No(s): CP-09-CR-0000085-2015


BEFORE:   GANTMAN, P.J., SHOGAN, J., and PLATT*, J.

JUDGMENT ORDER BY GANTMAN, P.J.:                     FILED JULY 13, 2018

     Appellant, Scott Mignogna, appeals pro se from the order entered in the

Bucks County Court of Common Pleas, which denied his first petition per the

Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. On March

11, 2015, Appellant entered an open guilty plea to three counts of persons

not to possess firearms. The court sentenced him on May 11, 2015, to 3 to

10 years’ imprisonment. Appellant timely filed post-sentence motions, which

the court denied on June 4, 2015. Appellant did not file a direct appeal. On

June 6, 2016, Appellant timely filed a pro se PCRA petition.      The court

appointed counsel on August 12, 2016. On January 25, 2017, Appellant filed

a pro se motion claiming PCRA counsel was ineffective for failing to file an

amended PCRA petition, and seeking new counsel. The court held a hearing

on March 23, 2017, directed PCRA counsel to file an amended PCRA petition,


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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and denied Appellant’s request for new counsel. On May 30, 2017, Appellant

filed a pro se memorandum of law regarding his claim that PCRA counsel was

ineffective and renewing his request for new counsel. Appellant filed another

pro se motion on July 17, 2017, to proceed pro se, again asserting PCRA

counsel’s ineffectiveness and claiming Appellant was forced to proceed pro se

because the court refused to appoint new counsel. On July 26, 2017, the

court directed PCRA counsel to file an amended PCRA petition by September

8, 2017. On August 28, 2017, PCRA counsel filed a motion to withdraw. On

September 6, 2017, the court held a Grazier1 hearing, let Appellant proceed

pro se, and allowed counsel to withdraw. Appellant filed a pro se amended

PCRA petition on September 11, 2017. The court held a PCRA hearing on

October 25, 2017, and denied relief that day. Appellant timely filed a pro se

notice of appeal. On November 22, 2017, the court ordered Appellant to file

a Pa.R.A.P. 1925(b) statement, which Appellant filed after an extension.

       “Pursuant to the rules of criminal procedure and interpretive case law,

a criminal defendant has a right to representation of counsel for purposes of

litigating a first PCRA petition through the entire appellate process.”

Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa.Super. 2009) (en

banc).

          While the right to legal representation in the PCRA context
          is not constitutionally derived, the importance of that right
          cannot be diminished merely due to its rule-based
____________________________________________


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

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          derivation. In the post-conviction setting, the defendant
          normally is seeking redress for trial counsel’s errors and
          omissions. Given the current time constraints of [the
          PCRA], a defendant’s first PCRA petition, where the rule-
          based right to counsel unconditionally attaches, may well be
          the defendant’s sole opportunity to seek redress for such
          errors and omissions. Without the input of an attorney,
          important rights and defenses may be forever lost.

Id. at 458-59.      See also Pa.R.Crim.P. 904 (stating indigent defendant is

entitled to counsel for litigation of first PCRA petition).

       Instantly, Appellant is indigent. He sought to proceed pro se only after

repeated claims his PCRA counsel had failed to file an amended PCRA petition,

and because the court would not appoint new counsel. Following a Grazier

hearing, the court allowed Appellant to proceed pro se and let counsel

withdraw. The court denied PCRA relief on October 25, 2017, and Appellant

timely appealed pro se. But the PCRA court did not determine if Appellant

wanted to waive his rule-based right to counsel on appeal.2 We conclude the

best resolution is to vacate and remand for further proceedings.         Upon

remand, the court must conduct a full Grazier hearing to determine whether

Appellant wants counsel on appeal. If the court is convinced Appellant wants

to proceed pro se, it can reinstate its PCRA order; and Appellant can file a

notice of appeal. If Appellant does not want to proceed pro se or fails to show

a valid waiver of counsel, then the court shall appoint new counsel for the


____________________________________________


2 Notably, the PCRA court then deemed Appellant’s issues waived for a
deficient Rule 1925(b) statement; Appellant’s brief also fails to comply with
the Rules of Appellate Procedure.

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appeal and reinstate its PCRA order; and Appellant can proceed with a

counseled appeal. See Robinson, supra (vacating order denying PCRA relief,

remanding for Grazier hearing, and relinquishing jurisdiction; stating once

appropriate proceedings are conducted, order denying PCRA relief can be

reinstated, and appellant or counsel can appeal).

      Order vacated; case remanded with instructions.        Jurisdiction is

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/18




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