J-S72005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DEATHRICE DWAYNE GRAY

                            Appellant                   No. 41 MDA 2016


          Appeal from the Judgment of Sentence December 11, 2015
              In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0001900-2014


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

MEMORANDUM BY GANTMAN, P.J.:                       FILED DECEMBER 06, 2016

        Appellant, Deathrice Dwayne Gray, appeals pro se from the judgment

of sentence entered in the Luzerne County Court of Common Pleas, following

his bench trial conviction for possession of a controlled substance (heroin).1

For the following reasons, we remand the matter with instructions and

relinquish jurisdiction.

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

On February 12, 2014, police executed a search warrant at a residence in

Hazleton, Pennsylvania.           Police   discovered money, drugs, and drug

paraphernalia in the residence in close proximity to Appellant.           The

____________________________________________


1
    35 P.S. § 780-113(a)(16).


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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Commonwealth charged Appellant with possession of a controlled substance

with the intent to deliver and simple possession. Appellant initially retained

private counsel to defend against the charges. Private counsel filed a motion

to withdraw on November 24, 2014, claiming Appellant had not honored

their fee agreement and citing Appellant’s complaints that he could no longer

afford private counsel.      The court granted counsel’s motion and directed

Appellant to apply for representation with the Public Defender’s Office.

Appellant complied and obtained representation from the Public Defender.

Several months later, however, the Public Defender sought to withdraw due

to a conflict of interest.     On April 7, 2015, the court appointed conflict

counsel. Conflict counsel later withdrew his appearance, citing a breakdown

in the attorney/client relationship.   According to Appellant, conflict counsel

failed to communicate with him; so, Appellant borrowed money from family

and friends to retain private counsel for trial.

      Appellant proceeded to a bench trial on October 23, 2015, and was

convicted of simple possession on October 26, 2015.         On December 11,

2015, the court sentenced Appellant to 6-23 months’ imprisonment. After

sentencing, the court permitted counsel to withdraw. Appellant timely filed

a pro se notice of appeal on December 24, 2015. On January 20, 2016, the

court ordered Appellant to file a Pa.R.A.P. 1925(b) statement, which

Appellant timely filed pro se on January 27, 2016.          Appellant filed an

untimely post-sentence motion to reduce his sentence on February 5, 2016,


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which the court denied on February 11, 2016, for lack of jurisdiction due to

the pending appeal.

       On February 24, 2016, Appellant filed a pro se motion in the trial court

requesting appointment of counsel for his appeal, claiming he could not

afford counsel. The court did not rule on the motion. On April 21, 2016,

Appellant filed an application for appointment of counsel in this Court, which

this Court denied without prejudice, directing Appellant to seek relief in the

trial court. Appellant filed another motion in the trial court for appointment

of counsel on May 18, 2016; the court did not rule on that motion either. In

light of Appellant’s allegations of indigency and repeated requests for

counsel, on September 19, 2016, this Court remanded the matter to

determine indigency status and/or consider the appointment of counsel in

the interests of justice. Upon remand, the trial court scheduled a hearing for

October 5, 2016.       On October 11, 2016, the trial court notified this Court

that it was unable to assess Appellant’s indigency status because Appellant

failed to appear at the hearing. The record shows the court sent notice of

the hearing to an address where Appellant no longer resides.2

       As a preliminary matter, Pennsylvania Rule of Criminal Procedure 122

provides:

          Rule 122. Appointment of Counsel
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2
  In a separate motion filed in this Court on October 27, 2016, Appellant
explained why he did not receive notice of the hearing and failed to attend.



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        (A)   Counsel shall be appointed:

                                 *    *     *

              (2) in all court cases, prior to the preliminary hearing
        to all defendants who are without financial resources or
        who are otherwise unable to employ counsel;

              (3) in all cases, by the court, on its own motion, when
        the interests of justice require it.

        (B)   When counsel is appointed,

                                 *    *     *

            (2) the appointment shall be effective until final
        judgment, including any proceedings upon direct appeal.

Pa.R.Crim.P. 122(A), (B). Under paragraph (A)(3), the court has authority

to appoint counsel regardless of eligibility, when the interests of justice

require it. Pa.R.Crim.P. 122, Comment; Commonwealth v. Cannon, 954

A.2d 1222 (Pa.Super. 2008), appeal denied, 600 Pa. 743, 964 A.2d 893

(2009) (explaining Rule 122 authorizes court to conduct case-by-case

evaluations of individual defendants’ circumstances to ascertain whether

counsel should be appointed).

     Instantly, given the significant rights at issue, and in the interests of

justice, we decline to proceed with the pro se appeal. The better resolution

at this point is to remand this case to the trial court for appointment of

counsel within ten (10) days to communicate with Appellant about the

issue(s) he wants to pursue on appeal. Because Appellant appears to seek,

inter alia, reconsideration of his sentence, appointed counsel must file post-

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sentence motions nunc pro tunc within ten (10) days of counsel’s

appointment, to preserve Appellant’s sentencing challenge and to restore his

appellate rights.   Following disposition of the post-sentence motions nunc

pro tunc, either party can file a timely appeal.   Counsel must also verify

Appellant’s current mailing address and confirm the court has the correct

address on file.

      Case remanded with instructions. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/2016




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