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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
JEROME CALDWELL,                         :         No. 3196 EDA 2014
                                         :
                         Appellant       :


               Appeal from the PCRA Order, September 30, 2014,
             in the Court of Common Pleas of Northampton County
               Criminal Division at Nos. CP-48-CR-0001405-2012,
                            CP-48-CR-0001410-2012


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JUNE 16, 2015

        Jerome Caldwell appeals from the order of September 30, 2014,

denying his PCRA1 petition. After careful review, we vacate and remand for

further proceedings.

        On September 28, 2012, appellant entered a guilty plea to two counts

of delivery of heroin. Additional charges were nol prossed as part of the

plea agreement. The trial court imposed the mandatory minimum sentence

of 2-4 years’ incarceration on each count, to be served consecutively for an




1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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aggregate sentence of 4-8 years.2        Appellant did not file post-sentence

motions or an appeal.

        On August 26, 2014, appellant filed a pro se PCRA petition alleging,

inter alia, that application of the mandatory minimum sentence was illegal

pursuant to Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151 (2013).

Appellant also complained that trial counsel failed to furnish him with a copy

of the transcript.    Appellant requested reinstatement of his direct appeal

rights nunc pro tunc. Appellant did not request an attorney be appointed,

but did ask for stand-by counsel. (PCRA petition, 8/26/14 at 7 ¶16; docket

#25.)

        On September 30, 2014, the PCRA court denied appellant’s petition

without appointing counsel or issuing Rule 907 notice. 3      The PCRA court

concluded that appellant’s petition was untimely filed and that he failed to

plead and prove any exception to the PCRA’s jurisdictional one-year time

bar. Appellant filed a timely pro se notice of appeal on October 23, 2014.

Appellant also filed a pro se statement of matters complained of on appeal

pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.          Therein, appellant

requested that counsel be appointed to represent him on the appeal.



2
  See 18 Pa.C.S.A. § 7508(a)(7)(i) (“when the aggregate weight of the
compound or mixture containing the heroin involved is at least 1.0 gram but
less than 5.0 grams the sentence shall be a mandatory minimum term of
two years in prison and a fine of $5,000….”).
3
    See Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A. (“Disposition Without Hearing”).


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(Docket #28.)    On November 18, 2014, the PCRA court granted appellant

leave to proceed in forma pauperis and appointed Brian Monahan, Esq., to

represent appellant on the instant appeal. On December 3, 2014, the PCRA

court filed a Rule 1925(a) opinion, addressing the issues raised in appellant’s

pro se Rule 1925(b) statement.

      As stated above, this is appellant’s first PCRA petition.          “It is

well-established that a first-time PCRA petitioner whose petition appears

untimely on its face is entitled to representation for assistance in

determining whether the petition is timely or whether any exception to the

normal time requirements is applicable.”          Commonwealth v. Ramos, 14

A.3d 894, 895 (Pa.Super. 2011), citing Commonwealth v. Guthrie, 749

A.2d 502, 504 (Pa.Super. 2000); Commonwealth v. Stout, 978 A.2d 984,

988 (Pa.Super. 2009).       See also Pa.R.Crim.P., Rule 904(C), 42 Pa.C.S.A.

(“when an unrepresented defendant satisfies the judge that the defendant is

unable to afford or otherwise procure counsel, the judge shall appoint

counsel to represent the defendant on the defendant's first petition for post-

conviction   collateral   relief.”)   (emphasis    added);   Commonwealth    v.

Robinson, 970 A.2d 455, 457 (Pa.Super. 2009) (en banc) (“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.”) (citations

omitted).



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       As stated above, appellant indicated that he wished to proceed pro se

“with stand-by counsel.” However, it was incumbent upon the PCRA court to

conduct a waiver-of-counsel colloquy to determine whether appellant

knowingly and understandingly waived his right to representation by counsel

on a first PCRA petition.       As this court stated in Commonwealth v.

Figueroa, 29 A.3d 1177 (Pa.Super. 2011):

             Recently, in Commonwealth v. Stossel, 17 A.3d
             1286 (Pa.Super. 2011), this Court held that a
             petitioner's checking of a box in the standardized
             DC–198 form utilized for pro se PCRA petitions,
             which indicated that the petitioner did not want the
             court to appoint counsel, did not remove a court's
             obligation to conduct a Grazier[4] colloquy to
             determine if the petitioner was knowingly,
             intelligently, and voluntarily relinquishing his right to
             counsel. Citing our decision in [] Robinson,
             [supra], we remanded for the PCRA court to conduct
             a      Grazier     colloquy    utilizing   Pa.R.Crim.P.
             121(A)(2)(a), (d), (e) and (f).

Id. at 1181.5


4
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
5
    Rule 121. Waiver of Counsel

             (A) Generally.

             (1) The defendant may waive the right to be
             represented by counsel.

             (2) To ensure that the defendant's waiver of the
             right to counsel is knowing, voluntary, and
             intelligent, the judge or issuing authority, at a
             minimum, shall elicit the following information from
             the defendant:



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                 (a) that the defendant understands that
                 he or she has the right to be represented
                 by counsel, and the right to have free
                 counsel appointed if the defendant is
                 indigent;

                 (b) that the defendant understands the
                 nature of the charges against the
                 defendant and the elements of each of
                 those charges;

                 (c) that the defendant is aware of the
                 permissible range of sentences and/or
                 fines for the offenses charged;

                 (d) that the defendant understands that
                 if he or she waives the right to counsel,
                 the defendant will still be bound by all
                 the normal rules of procedure and that
                 counsel would be familiar with these
                 rules;

                 (e) that the defendant understands that
                 there are possible defenses to these
                 charges that counsel might be aware of,
                 and if these defenses are not raised at
                 trial, they may be lost permanently; and

                 (f) that the defendant understands that,
                 in addition to defenses, the defendant
                 has many rights that, if not timely
                 asserted, may be lost permanently; and
                 that if errors occur and are not timely
                 objected to, or otherwise timely raised
                 by the defendant, these errors may be
                 lost permanently.

Pa.R.Crim.P., Rule 121(A)(1), (2), 42 Pa.C.S.A. See Robinson, 970 A.2d at
459-460 (“we conclude that if a PCRA defendant indicates a desire to
represent himself, it is incumbent upon 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).”).


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           “Specifically, we reasoned [in Robinson] that
           because a first time PCRA petition ‘may well be the
           defendant's sole opportunity to seek redress[,]’ an
           on-the-record colloquy was necessary to ascertain
           whether the petitioner ‘fully understands the
           ramifications of a decision to proceed pro se and the
           pitfalls associated with his lack of legal training.’”

Id. at 1182, quoting Robinson, 970 A.2d at 460 (footnote omitted). “The

Grazier colloquy, as delineated in Robinson, must inform Appellant that he

not only has a right to have counsel on appeal, but that he was also entitled

to a counseled amended petition and representation before the PCRA court.”

Id.

      For these reasons, it is necessary to vacate the denial of PCRA relief

and remand for a full waiver colloquy.

      Order vacated.      Case remanded for conduct of a colloquy in

accordance with Grazier. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/16/2015




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