J-S34032-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JEFFREY V. JONES

                            Appellant               No. 1762 WDA 2013


                 Appeal from the PCRA Order September 17, 2013
                 In the Court of Common Pleas of McKean County
               Criminal Division at No(s): CP-42-CR-0000178-2011;
               CP-42-CR-0000179-2011; CP-42-CR-0000180-2001


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                       FILED AUGUST 12, 2014

        Appellant, Jeffrey V. Jones, appeals pro se from the order entered in

the McKean County Court of Common Pleas, granting in part and dismissing

in part his first petition filed pursuant to the Post Conviction Relief Act
           1
               We vacate and remand for further proceedings.

        The relevant facts and procedural history of this case are as follows.

On March 5, 2012, Appellant entered a negotiated guilty plea to two (2)

counts of delivery of a controlled substance and one (1) count of simple

possession.      On May 25, 2012, the court sentenced Appellant to an

aggregate term of eighteen (18) to thirty-

____________________________________________


1
    42 Pa. C.S.A. §§ 9541-9546.
J-S34032-14


Appellant did not file a direct appeal from his judgment of sentence.     On

August 8, 2012, the Department of Corrections sent a letter to the trial

court, requesting the judge to clarify whether the McKean County sentence

was concurrent with or consecutive to a sentence Appellant previously

received in Potter County.   On August 21, 2012, the trial court issued an

amended sentencing order which stated the McKean County sentence was to

run consecutive to all other sentences Appellant was serving.

        On October 22, 2012, Appellant timely filed a pro se PCRA petition.

Appellant filed an amended petition on January 7, 2013. On June 28, 2013,

the court appointed counsel for Appellant.        The court scheduled an

evidentiary hearing for August 6, 2013. At the hearing, PCRA counsel

indicated that after speaking with Appellant, they decided a hearing was not

necessary and requested to submit a brief solely on the issue of the legality

of th

stated that Appellant was forgoing any claim that plea counsel was

                                                                      pro se

amended PCRA petition on August 26, 2013. On September 17, 2013, the




the absence of a statement to the contrary on the original sentencing order,

the McKean County and Potter County sentences were presumed to run

concurrently.    The court found the sentences were presumed to run


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      Appellant subsequently wrote a letter to PCRA counsel asking him to

withdraw from the case.      PCRA counsel filed a motion to withdraw on

October 4, 2013.    On October 7, 2013, Appellant, acting pro se, filed a

timely notice of appeal, a voluntary Pa.R.A.P. 1925(b) statement, and a

petition to proceed in forma pauperis




      Appellant raises the following issues for our review, reproduced almost

verbatim from his brief:

         WHE
         CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF
         FIRST POST CONVICTION COUNSEL SPECIFICALLY WITH
         RESPECT TO HIS INEFFECTIVE ASSISTANCE OF TRIAL
         COUNSEL CLAIM.

         INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AT PLEA
         BARGAIN OFFERS TO GIVE [APPELLANT] GOOD ADVICE
         AND TO INFORM ON WHETHER TO ACCEPT A PLEA
         BARGAIN, AT ALL STAGES OF PROSECUTION, AND AT


         IN THE PLEA BARGAINING STAGES.



                                                   pro se status presents a

question of whether Appellant was effectively deprived of his right to counsel

on this appeal. Pennsylvania Rule of Criminal Procedure 904 states:

         Rule 904. Entry of Appearance and Appointment of
              Counsel; In Forma Pauperis

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                                *    *    *

           (C) Except as provided in paragraph (H), 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
                                                        -conviction
        collateral relief.

                                *    *    *

           (E) The judge shall appoint counsel to represent a
        defendant whenever the interests of justice require it.

           (F)   When counsel is appointed,

                                *    *    *

           (2) the appointment of counsel shall be effective
        throughout the post-conviction collateral proceedings,
        including any appeal from disposition of the petition for
        post-conviction collateral relief.

           (G) When a defendant satisfies the judge that the
        defendant is unable to pay the costs of the post-conviction
        collateral proceedings, the judge shall order that the
        defendant be permitted to proceed in forma pauperis.

Pa.R.Crim.P. 904(C)-(G). An indigent defendant is entitled to representation

by counsel on a first petition filed under the PCRA.     Commonwealth v.

Evans, 866 A.2d 442 (Pa.Super. 2005); Pa.R.Crim.P. 904(C).

        While a PCRA petitioner does not have a Sixth Amendment
        right to assistance of counsel during collateral review, this
        Commonwealth, by way of procedural rule, provides for

        petition for post conviction relief.    Pursuant to our
        procedural rules, not only does a PCRA petitioner have the

        assistance of counsel. The guidance and representation of
        an attorney during collateral review should assure that

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          meritorious legal issues are recognized and addressed, and
          that meritless claims are foregone.

Commonwealth v. Haag, 570 Pa. 289, 307-08, 809 A.2d 271, 282-83

(2002), cert. denied, 539 U.S. 918, 123 S.Ct. 2277, 156 L.Ed.2d 136 (2003)

(internal citations and most quotations marks omitted).

     This rule-based right to counsel and to effective assistance of counsel

extends throughout the post-conviction proceedings, including any appeal

from the disposition of the PCRA petition. Commonwealth v. White, 871

A.2d 1291 (Pa.Super. 2005); Pa.R.Crim.P. 904(F)(2).          Rule 904 does not

require   the    petitioner/appellant   to   request   appointment    of       counsel.

Commonwealth v. Guthrie, 749 A.2d 502 (Pa.Super. 2000).

     Moreover:

          Once    counsel    has   entered     an   appearance   on        a

          representation until the case is concluded or counsel is
          granted leave by the court to withdraw his appearance.

                                    *    *     *

          [W]hen presented with a scenario where an indigent
          petitioner files a pro se appeal from a first PCRA petition,
          the PCRA court should take one of two actions: the PCRA
          court should either promptly notify counsel of record that
          his client has taken an appeal and that counsel remains
          obligated to represent him, or the PCRA court should
          appoint new counsel to represent the [petitioner] on
          appeal. This action would alleviate the need of this [C]ourt
          to remand cases back to the PCRA court and would further
          expedite the appeals process.

Commonwealth v. Brown, 836 A.2d 997, 999 (Pa.Super. 2003) (internal




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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 volunta          Commonwealth v. Grazier, 552 Pa. 9, 12-

13, 713 A.2d 81, 82 (1998). See also Commonwealth v. Robinson, 970

A.2d 455 (Pa.Super. 2009) (en banc) (setting standard to require Grazier

colloquy, before petitioner surrenders significant rule-based right to counsel

in PCRA cases).

        Instantly, after Appellant filed his amended pro se first PCRA petition,

the court appointed counsel. Following a hearing, the court issued an order

                                                                            ant

subsequently sent PCRA counsel a letter asking him to withdraw from the

case. On the basis of that letter, PCRA counsel filed a motion to withdraw on

October 4, 2013.     Appellant filed a pro se notice of appeal on October 7,

2013.     The following day, t

withdraw, but it did not appoint new counsel to represent Appellant on

appeal. Appellant has not filed an application with this Court to proceed pro

se, and the record establishes his indigent status. There is no indication in

the certified record that the court conducted a hearing to determine if

Appellant knowingly, intelligently, and voluntarily waived his right to

                                                                         pro se

status on appeal. See Grazier, supra; White, supra.




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       Moreover, in his pro se

ineffectiveness and asserts his right to effective assistance of counsel

throughout the post-conviction proceedings, including on appeal. Appellant

                                                        Commonwealth v. Grazier




Brief at 17, 21).

       Therefore,    absent     evidence       from a   Grazier   hearing,   the   best



case for further proceedings. Upon remand, the court must conduct a full,

on-the-record, Grazier hearing to determine if Appellant wants to proceed

pro se and can demonstrate a valid waiver of counsel. If Appellant does not

want to proceed pro se or fails to demonstrate a valid waiver of counsel, the

court must appoint new counsel to assist Appellant.2              Alternatively, if the

court is convinced Appellant wants to proceed pro se and has validly waived

his right to counsel, the court can reinstate its order granting in part and
____________________________________________


2
    In the event that new counsel is appointed, the court should direct new
                              PCRA petition and determine if it is necessary

appeal that PCRA counsel was ineffective. Claims of ineffective assistance of
PCRA counsel may not be raised for the first time on appeal.
Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032, 1044 n. 14 (2011);
Commonwealth v. Hill, 609 Pa. 410, 16 A.3d 484, 497 n. 17 (2011);
Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874, 894 n. 12 (2010);
Commonwealth v. Pitts, 603 Pa. 1, 981 A.2d 875 (2009);
Commonwealth v. Henkel, 90 A.3d 16 (Pa.Super. 2014).



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denying in part PCRA relief; and Appellant can file a notice of appeal.

Accordingly, we vacate and remand for further proceedings.

      Order vacated; case remanded with instructions.        Jurisdiction is

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2014




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