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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                      :
                                            :
JUSTIN MICHAEL HICKOX,                      :
                                            :
                          Appellant         :     No. 1897 MDA 2015

                  Appeal from the PCRA Order October 8, 2015
                 In the Court of Common Pleas of Centre County
                 Criminal Division No.: CP-14-CR-0001270-2010

BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY DUBOW, J.:                            FILED JUNE 09, 2016

        Appellant, Justin Michael Hickox, appeals from the October 8, 2015

Order dismissing his first Petition filed under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. As explained infra, we vacate the PCRA

court’s Order and remand this case for the PCRA court to conduct a hearing

in accordance with Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998),

and Pa.R.Crim.P. 121.1

        On December 17, 2014, Appellant filed a pro se PCRA Petition,

asserting prosecutorial misconduct and challenging the legality of his

sentence. On March 5, 2015, the PCRA court appointed Karen G. Muir, Esq.,


*
    Former Justice specially assigned to the Superior Court.
1
  We raise the issue of the need for a Grazier hearing and a Pa.R.Crim.P.
121 colloquy sua sponte. Commonwealth v. Stossel, 17 A.3d 1286, 1290
(Pa. Super. 2011).
J.S36023/16


to represent Appellant. Notwithstanding the appointment of counsel,

Appellant filed a pro se Motion to Appoint Special Prosecutor on June 22,

2015, seeking to disqualify the Centre County District Attorney. The court

scheduled a hearing on that Motion for July 27, 2015.

      On July 16, 2015, Attorney Muir filed a Motion to Withdraw as counsel,

citing Appellant’s desire to proceed pro se.    See Motion to Withdraw as

Counsel, 7/16/15, at ¶¶ 3-6.    Attorney Muir’s Motion to Withdraw did not

aver that she believed that Appellant’s PCRA Petition had no merit, and she

did not file a Turner/Finley letter.2 On July 17, 2015, the court scheduled

a hearing on counsel’s Motion to Withdraw for July 27, 2015, the same day

as the hearing on Appellant’s Motion to Appoint Special Counsel.

      On July 27, 2015, after a hearing, the trial court granted Appellant

permission to file a pro se Amended PCRA Petition and denied Appellant’s

motion to disqualify the District Attorney. The certified record does not

include a transcript of this hearing, and there is no indication in the record

that the PCRA court conducted a Grazier hearing.

      On August 4, 2015, the PCRA court entered an Order granting

Attorney Muir’s Motion to Withdraw as Counsel.3 The trial court thereafter

issued a Pa.R.Crim.P. 907 Notice and Opinion, to which Appellant filed a pro

2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
 The Order entered August 4, 2015 provides in toto: “AND NOW, July 17,
2015, after hearing, Karen Muir’s Motion to Withdraw as Counsel, with no
objection from the Commonwealth, is GRANTED.” Order, entered 8/4/15.


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se response. The PCRA court dismissed Appellant’s PCRA Petition without a

hearing on October 8, 2015. Appellant timely appealed.

      Although there are indications in the certified record that Appellant

desired to proceed pro se during the PCRA proceedings below, the rules of

criminal procedure and our case law nevertheless require a full colloquy prior

to allowing an appellant to proceed pro se if counsel has not filed a

Turner/Finley    letter.    See   Pa.R.Crim.P.   121(A);   Grazier,   supra;

Commonwealth v. Robinson, 970 A.2d 455, 460 (Pa. Super. 2009) (en

banc) (stating that “a colloquy [under Pa.R.Crim.P. 121(A)] must be held by

the PCRA court of its own accord . . . once the defendant has expressed a

desire to proceed pro se as long as PCRA counsel has not properly withdrawn

by complying with the dictates of Turner/Finley.”).

      Because the PCRA court did not conduct a Grazier hearing prior to

allowing Appellant to proceed pro se, we vacate the PCRA court’s October 8,

2015 Order, and remand to the PCRA court for a Grazier hearing and a

subsequent ruling on Appellant’s PCRA Petition. See Grazier, supra at 82.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/9/2016




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