J-E01004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RUSSELL S. SHICK                           :
                                               :
                       Appellant               :   No. 720 WDA 2018

            Appeal from the Judgment of Sentence March 29, 2016
     In the Court of Common Pleas of Cambria County Criminal Division at
                       No(s): CP-11-CR-0000785-2014


BEFORE: PANELLA, P.J., BENDER, P.J.E., GANTMAN, P.J.E., LAZARUS, J.,
        OLSON, J., KUNSELMAN, J., NICHOLS, J., MURRAY, J., and
        McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.:                              FILED OCTOBER 08, 2019

       Appellant, Russell S. Shick, appeals from the judgment of sentence

entered on March 29, 2016, as made final by the denial of Appellant’s

post-sentence motion on April 28, 2016. We vacate in part and remand.

                                    I. Introduction

       This case has a tortured procedural history. The missteps began when

the trial court1 permitted Appellant’s counsel to withdraw at the post-sentence

motion stage and then failed to adequately colloquy Appellant as to whether

____________________________________________


1 The same judge presided over the plea, post-sentence, and post-conviction
stages of Appellant’s case. For convenience and ease of understanding,
throughout this memorandum we will refer to the lower court as the “trial
court,” regardless of whether the court was acting at the trial, post-sentence
or post-conviction stage.
J-E01004-19


he wished to waive his right to counsel. As a result of this failing, Appellant

was forced to proceed through the post-sentence motion stage pro se and

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

      In the one year after Appellant’s judgment of sentence became final,

Appellant filed numerous pro se documents that, although not captioned as

petitions filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546, and failed to reference the PCRA, sought relief that was only

available under the PCRA. The trial court failed to recognize that these filings

constituted PCRA petitions and summarily denied most of the pro se petitions

without either appointing counsel to represent Appellant or conducting a

colloquy to determine whether Appellant wished to waive his right to counsel.

However, the trial court did not deny all of Appellant’s timely, pro se PCRA

petitions.

      To be sure, on August 10, 2016, Appellant filed a pro se document where

he sought relief from his judgment of sentence, based upon claims that his

prior counsel was ineffective and that his constitutional rights were violated.

Further, on August 17, 2016, Appellant filed a separate pro se document,

where he repeated the claims contained in the August 10, 2016 filing. Both

documents were filed within one year of the date Appellant’s judgment of

sentence became final and both filings sought relief that was only available

under the PCRA.     Therefore, both filings constitute timely, pro se PCRA

petitions. The trial court did not deny Appellant relief on these petitions and


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it did not dismiss or finally dispose of the petitions. Instead, on August 22,

2016, the trial court entered an order, which expressly declared that it

refused to rule upon Appellant’s pro se, August 10, 2016 filing. Further,

the trial court did not enter an order relative to Appellant’s separately filed,

August 17, 2016 petition.

      We conclude that, since the trial court expressly refused to rule upon

Appellant’s August 10, 2016 pro se PCRA petition and since the trial court did

not rule upon the August 17, 2016 petition, these timely, pro se PCRA petitions

remained pending in the trial court. These existing PCRA petitions were then

properly amended by Appellant’s PCRA counsel, when counsel entered his

appearance and filed the amended PCRA petition on November 1, 2017. We

thus conclude that the trial court possessed jurisdiction to reinstate

Appellant’s direct appeal rights nunc pro tunc and that Appellant’s case is now

properly before us on direct appeal.

      One of the claims Appellant raises on direct appeal is that “the [trial

c]ourt err[ed] in failing to appoint counsel to represent [Appellant] for

purposes of litigating post-sentence motions.”     Appellant’s Brief at 5.   We

conclude that this claim entitles Appellant to relief.    Since the trial court

permitted Appellant’s counsel to withdraw at the post-sentence motion stage

and then failed to colloquy Appellant as to whether he wished to waive his

right to counsel, we must vacate the trial court’s order that denied Appellant’s




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post-sentence motion and remand so that Appellant may file a counseled

post-sentence motion.

                        II. Facts and Procedural Posture

        On November 30, 2015, Appellant pleaded guilty to aggravated assault.2

During the plea colloquy, the Commonwealth summarized the factual basis for

Appellant’s plea:

          Pennsylvania State Police were called to George’s Tavern[,]
          located in Dean Township[,] in the early morning hours of
          October 16[, 2013]. Information related at that time was
          that on October 15, 2013, [Appellant] had entered the tavern
          stating he was hunting deer with a 9-millimeter firearm. He
          had went outside to his vehicle and brought the firearm into
          the bar. He was asked to remove the firearm from the bar,
          which he did. He continued to stay at the establishment and
          drink and was told to leave numerous times.

          [The next day, o]n October 16th . . . [, Appellant] had left the
          bar again and had re-entered and stated he was in the mood
          to fight everybody in the bar. He was again asked to leave
          at that time. Eventually he did leave.

          [That night], three of the victims, including [R.E.,] were in
          the bar. As they were in the bar[,] the victims heard several
          pops and dropped to the floor. It was determined that at
          least four shots were fired at the establishment. One of the
          rounds did enter the establishment and struck the victim,
          [R.E.], in the hip and exit[ed] through his buttocks.

          The state police conducted an investigation. They recovered
          spent bullets at the scene, which were found to be
          9-millimeter or similar caliber rounds. A search was then
          conducted of [Appellant’s] vehicle.        At that time a
          9-millimeter semi-automatic rifle was located in his vehicle.
          Also in the vehicle were two spent 9-millimeter casings. . . .
____________________________________________


2   18 Pa.C.S.A. § 2702(a)(1).


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        [Appellant] stated after being interviewed with state police
        that he had driven by George’s Tavern and had fired about
        four times at the bar but was not trying to kill anyone, just
        trying to scare them at that time.

N.T. Guilty Plea Hearing, 11/30/15, at 4-6.

      The trial court accepted Appellant’s guilty plea and, on March 29, 2016,

sentenced Appellant to serve a term of seven-and-one-half to 15 years in

prison for his aggravated assault conviction.      N.T. Sentencing Hearing,

3/29/16, at 49. The sentence falls within the standard range of the sentencing

guidelines. See id.

      On April 5, 2016, Appellant’s counsel (hereinafter “Plea Counsel”) filed

a motion to withdraw his appearance. Plea Counsel averred that he was filing

the motion because Appellant “wishes for [Plea Counsel] to withdraw his

appearance and have the Public Defender’s Office appointed to pursue

post-sentencing motions and appeals.”      Motion to Withdraw, 4/5/16, at 2

(some capitalization omitted). Further, on April 6, 2016, Plea Counsel filed a

“motion for leave to file [a] supplemental post-sentence motion [and] . . . for

an extension of time to decide” the post-sentence motion (hereinafter

“Appellant’s Motion for Extension of Time”).    In this motion, Plea Counsel

averred that Appellant “made it clear that he does not want [Plea Counsel] to

file post sentence motions on his behalf, however, he does want post sentence

motions filed by his new counsel.” Appellant’s Motion for Extension of Time,

4/6/16, at 2. The motion requested that the trial court grant “leave to amend

so the public defender or other appointed counsel may file post sentence

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motions on [Appellant’s] behalf” and an extension of time “so that new counsel

may file the appropriate post sentence motions.” Id.

       On April 7, 2016, the trial court granted Appellant’s request “to file a

supplemental post-sentence motion within [30] days of the appointment of

new counsel.” Trial Court Order, 4/7/16, at 1 (some capitalization omitted).

       On April 12, 2016, Plea Counsel faxed the trial court a hand-written

letter from Appellant. Appellant’s letter declared:

         To whom it may concern:

                                           ...

         I hereby wholeheartedly do choose to withdraw my plea of
         guilty forthwith and announce my intention to take this case
         to trial. I would further ask that the Honorable Court see fit
         to appoint counsel to assist me in all upcoming legal issues
         relative to this case as I am indigent and currently
         incarcerated effective immediately.

Appellant’s Pro Se Motion to Withdraw Guilty Plea, 4/13/16, at 1.

       The trial court construed Appellant’s letter to be a pro se motion to

withdraw his guilty plea (hereinafter “pro se Motion to Withdraw Guilty Plea”)

and the trial court scheduled an April 28, 2016 hearing for both Plea Counsel’s

motion to withdraw his appearance and Appellant’s pro se Motion to Withdraw

Guilty Plea.3 Trial Court Order, 4/13/16, at 1.




____________________________________________


3The trial court apparently attached Appellant’s pro se Motion to Withdraw
Guilty Plea to its April 13, 2016 order.


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       During the April 28, 2016 hearing, the trial court first granted Plea

Counsel’s motion to withdraw his appearance. N.T. Hearing, 4/28/16, at 7.

The trial court did not appoint another attorney to represent Appellant and the

court did not conduct a colloquy to determine whether Appellant knowingly,

voluntarily, and intelligently waived his right to counsel.       Instead, the trial

court merely asked Appellant: “is [it] your desire to proceed pro se or do you

want more time to get new counsel?”4           N.T. Hearing, 4/28/16, at 4-5. After

Appellant declared “I think I could proceed today on my own,” the trial court

allowed Appellant to proceed through the remainder of the post-sentence

motion hearing unrepresented.5 Id. at 5.

       The trial court denied Appellant’s pro se Motion to Withdraw Guilty Plea

on April 28, 2016. Trial Court Order, 4/28/16, at 1. Appellant did not file a


____________________________________________


4 On July 11, 2016 (or, a little more than two months after the April 28, 2016
hearing), Appellant filed a pro se “Motion for Leave to Proceed In Forma
Pauperis,” where Appellant asserted his indigency and requested that the trial
court grant him leave to proceed in forma pauperis. Appellant’s Pro Se “Motion
for Leave to Proceed In Forma Pauperis,” 7/11/16, at ¶¶ 1-2. The trial court
granted Appellant leave to proceed in forma pauperis by order entered July
25, 2016. Trial Court Order, 7/25/16, at 1.

5 The trial court granted Plea Counsel’s motion to withdraw his appearance
before the trial court considered Appellant’s pro se Motion to Withdraw Guilty
Plea. Based upon the chronology of events, we do not have a hybrid
representation problem, as the trial court considered Appellant’s pro se filing
after it permitted Plea Counsel to withdraw. See Commonwealth v. Ellis,
626 A.2d 1137, 1139 (Pa. 1993) (“there is no constitutional right to hybrid
representation either at trial or on appeal”).




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timely notice of appeal from his judgment of sentence.       Thus, Appellant’s

judgment of sentence became final on Tuesday, May 31, 2016.6 See Pa.R.A.P.

903(a); 1 Pa.C.S.A. § 1908 (computation of time).

       On July 28, 2016, Appellant filed a pro se document he titled “Notice of

Appeal from Sentence.”7 In this three-page filing, Appellant requested that

the trial court grant him the following relief:

          [Appellant,] being desirous to appeal from sentence hereby
          moves the Honorable Court to be advised of [Appellant’s]
          intended appeal and ask that a hearing be scheduled relative
          to same by the Honorable Court.

Appellant’s Pro Se “Notice of Appeal from Sentence,” 7/28/16, at 2. This filing

clearly sought relief under the PCRA. See Commonwealth v. Weimer, 756

A.2d 684 (Pa. Super. 2000) (holding that the appellant’s pro se petition to



____________________________________________


6   Monday, May 30, 2016 was Memorial Day.

7 On July 11, 2016 and July 21, 2016, Appellant filed pro se documents entitled
“Motion for Change of Venue from Judge” and “Motion for Change of Venue
from District Attorney.” Within these motions, Appellant claimed that the trial
court judge and the district attorney have “a personal bias or prejudice against
[Appellant] which would preclude [them] from presiding over [Appellant’s]
proceeding in a fair and impartial manner.” Appellant’s Pro Se Motion for
Change of Venue from Judge, 7/11/16, at 1 (some capitalization omitted);
Appellant’s Pro Se Motion for Change of Venue from District Attorney,
7/21/16, at 1 (some capitalization omitted). Appellant requested relief in the
form of “change of venue from” the judge and the district attorney.

The trial court did not consider Appellant’s filings to be petitions under the
PCRA and it did not appoint counsel to represent Appellant. The trial court
denied Appellant’s pro se motions on July 27, 2016. Trial Court Order,
7/27/16, at 1.


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reinstate his direct appellate rights nunc pro tunc constitutes a PCRA petition

because “the relief he sought was available under the PCRA”); see also

Commonwealth v. Fairiror, 809 A.2d 396, 397 (Pa. Super. 2002) (holding

that, generally, “requests for reinstatement of appellate rights, including PCRA

appellate rights,” are PCRA petitions that “must meet the timeliness

requirements of the PCRA”). However, the trial court did not consider the

filing to be a PCRA petition and it did not appoint counsel to represent

Appellant.   Rather, on August 3, 2016, the trial court entered an order

summarily denying Appellant relief. The order declares:

        upon consideration of [Appellant’s] pro se “Notice of Appeal
        from Sentence,” which we are construing as a request to
        appeal nunc pro tunc as a timely appeal was not perfected,
        is hereby ordered and directed that said request is denied.

Trial Court Order, 8/3/16, at 1 (emphasis and some capitalization omitted).

      Appellant did not file a notice of appeal from this order.

      What followed was a series of pro se filings by Appellant. Almost all of

the filings sought relief under the PCRA and almost all of the filings were

summarily denied by the trial court.       See Appellant’s Pro Se “Motion to

Dismiss,” 8/5/16, at 1-6 (Appellant claimed that he was entitled to relief from

his judgment of sentence because “he was denied his guaranteed rights

under” the United States and Pennsylvania Constitutions, his sentence is

illegal, and Plea Counsel was ineffective); Trial Court Order, 8/11/16, at 1

(denying Appellant’s pro se “Motion to Dismiss”); Appellant’s Pro Se “Motion

for Corrective Order,” 8/17/16, at 1 (Appellant requested that the trial court

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schedule a “hearing date” for his appeal from his judgment of sentence); Trial

Court Order, 8/24/16, at 1 (denying Appellant’s pro se “Motion for Corrective

Order”); Appellant’s Pro Se “Nunc Pro Tunc Motion for Reconsideration of

Sentence,” 2/9/17, at 1-6 (requesting that the trial court “reconsider its

sentence”); Trial Court Order, 3/2/17, at 1 (denying Appellant’s pro se “Nunc

Pro Tunc Motion for Reconsideration of Sentence”); Appellant’s Pro Se

“Addendum to Nunc Pro Tunc Motion for Reconsideration of Sentence,”

2/27/17, at 1-4 (again requesting that the trial court reconsider its sentence);

Trial Court Order, 3/2/17, at 1 (denying Appellant’s pro se “Addendum to Nunc

Pro Tunc Motion for Reconsideration of Sentence”). Appellant did not file a

notice of appeal from any of these orders.

      Two of Appellant’s pro se filings deserve special attention.     First, on

August 10, 2016, Appellant filed a pro se document entitled “Notice of Direct

Appeal.” Regardless of the title, this 12-page document is a petition, with

numbered paragraphs, that seeks relief from Appellant’s judgment of

sentence.     See Appellant’s Pro Se “Notice of Direct Appeal,” 8/10/16, at

¶¶ 1-28(Z).     Specifically, the filing contains numerous claims that Plea

Counsel was ineffective and that this ineffectiveness caused Appellant to enter

an   unknowing,     involuntary,   and   unintelligent   plea.   See    id.   at

¶¶ 22(A)-(Z)(30). Further, the filing declares that Appellant was entitled to

relief from his judgment of sentence because of prosecutorial misconduct and

trial court error. Id. at ¶¶ 27(1)-(13) and 28(A)-(Z). Appellant also attached


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a pro se brief to the filing, where Appellant attempted to elucidate upon his

ineffective assistance of counsel claims.        See Appellant’s Pro Se “Brief of

Appellant,” 8/10/16, at 1-16.

          Second, on August 17, 2016, Appellant again filed the pro se document

he titled “Notice of Direct Appeal.” The August 17, 2016 “Notice of Direct

Appeal” was separately filed and is identical to Appellant’s August 10, 2016

filing.     See Appellant’s Pro Se “Notice of Direct Appeal,” 8/17/16, at

¶¶ 1-28(Z); Appellant’s Pro Se “Brief of Appellant,” 8/17/16, at 1-16.

          On August 22, 2016, the trial court entered an order with respect to

Appellant’s “‘Notice of Direct Appeal’ of August 10, 2016.” See Trial Court

Order, 8/22/16, at 1 (“[b]efore the Court is [Appellant’s] ‘Notice of Direct

Appeal’ of August 10, 2016”).          The trial court stated in its order that

Appellant’s attempt to file a direct appeal from his judgment of sentence was

untimely, as Appellant did not file the notice of appeal within 30 days of the

date that the trial court denied Appellant’s pro se Motion to Withdraw Guilty

Plea. See id. at 1-2. The trial court then expressly declared that it would

not rule upon Appellant’s August 10, 2016 “Notice of Direct Appeal.” The

order declares:

            this 22nd day of August, 2016, upon consideration of
            [Appellant’s] “Notice of Direct Appeal,” we decline to
            render ruling as said document is untimely, and as such,
            we are without jurisdiction. Further, consistent with the
            analysis set forth herein, this Order shall serve as notice to
            [Appellant] that the Court will decline to render ruling
            relative to any future filings of a similar nature. To the
            extent that [Appellant] timely wishes to pursue

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         Post-Conviction Collateral Relief, said petitions will be
         entertained.

Id. at 2-3 (some emphasis added) (some emphasis omitted).8

       The trial court never ruled upon or entered an order relative to

Appellant’s separately filed, August 17, 2016, pro se “Notice of Direct Appeal.”

       On November 1, 2017, new counsel (hereinafter “PCRA Counsel”)

entered his appearance on behalf of Appellant. That same day, PCRA Counsel

filed an “Amended Petition for Post-Conviction Relief” on Appellant’s behalf.

Amended Petition for Post-Conviction Relief (hereinafter “Amended PCRA

Petition”), 11/1/17, at 1-19. Although the Amended PCRA Petition was not

filed within one year of the date Appellant’s judgment of sentence became

final, Appellant claimed that his amended petition “relates back to

[Appellant’s] timely filed [pro se PCRA petitions] and is timely.” Id. at ¶ 100.

Further, even though Appellant believed that the trial court dismissed all of

his prior, timely, pro se filings that sought relief under the PCRA, Appellant

claimed that the trial court’s failure to treat the pro se filings as PCRA petitions

and its failure to appoint counsel “renders the current PCRA petition a timely

amendment of the prior petitions.” Appellant’s Brief in Support of Amended

PCRA Petition, 11/1/17, at 17.


____________________________________________


8 The trial court clearly knew how to deny a petition. To be sure, the trial
court expressly denied Appellant relief on most of his pro se filings. See supra
at **8-10. It simply refused to render a ruling with respect to Appellant’s
August 10, 2016 pro se “Notice of Direct Appeal.”


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     The Amended PCRA Petition raised the following claims:

       a. The plea court interfered with [Appellant’s] PCRA rights,
       his right to appeal and violated his procedural due process
       rights where it failed to treat his pro se filings as PCRA
       petitions and appoint him counsel to litigate said PCRA
       claims. . . .

       b. The plea court violated [Appellant’s] substantive and
       procedural due process rights in failing to adequately colloquy
       him regarding his waiver of counsel at the April 28, 2016
       hearing and in failing to appoint him post-sentence motion
       and appellate counsel. . . .

       c. The plea court interfered with [Appellant’s] right to appeal
       where it failed to appoint counsel to litigate post-sentence
       motions and file a direct appeal [and Appellant] had a
       meritorious issue to pursue on appeal, including the failure to
       provide an adequate waiver of counsel colloquy. . . .

       d. Plea counsel was ineffective in advising his client to plead
       guilty and failing to timely advise his client of the applicability
       of the deadly weapon used sentencing guideline
       enhancement, and that the sentencing guideline ranges that
       were applicable increased his standard range guideline by 30
       to 48 months, causing [Appellant’s] plea to be unknowing and
       unintelligent. . . .

       e. Plea counsel was ineffective in failing to move to withdraw
       [Appellant’s] guilty plea prior to sentencing on the date of
       sentencing where [Appellant] requested that counsel do so
       upon learning that the Commonwealth was seeking to apply
       different sentencing guidelines, and causing [Appellant] to be
       subject to the more stringent post-sentence withdrawal
       standard. . . .

       f. Plea counsel was ineffective in failing to object to the
       prosecutor’s claim that [Appellant] had fired his weapon at
       torso level multiple times where discovery revealed that
       several shots entered the building at [17 to 21] inches from
       the ground. . . .




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         g. Counsel was ineffective in failing to present [Appellant’s]
         additional character witnesses at sentencing, who were
         present, and ready to testify on his behalf. . . .

         h. Plea counsel was ineffective in advising his client to plead
         guilty and failing to litigate both the suppression motion filed
         herein where meritorious suppression issues existed as well
         as other potentially meritorious suppression issues not
         included in counsel’s boilerplate motion. . . .

Id. at ¶ 105.

       The trial court scheduled an evidentiary hearing on Appellant’s petition

and the hearing occurred on December 8, 2017 and January 22, 2018. On

April 24, 2018, the trial court entered an order granting Appellant’s PCRA

petition in part. Specifically, the trial court reinstated Appellant’s direct appeal

rights nunc pro tunc.9 Trial Court Order, 4/24/18, at 13. The trial court then


____________________________________________


9 Within the trial court’s Rule 1925(a) opinion, the trial court remarks that its
April 24, 2018 order “permitted a nunc pro tunc appeal, limited to the issue
of the propriety of [the trial court’s] April 28, 2016 denial of [Appellant’s] pro
se Motion to Withdraw Guilty Plea.” Trial Court Opinion, 6/19/18, at 1. We
do not view the trial court’s April 24, 2018 order as limiting the scope of
Appellant’s direct appeal rights in any manner. To be sure, the April 24, 2018
order does not declare that Appellant’s nunc pro tunc appeal rights were to be
“limited.” Rather, the order simply states: “[Appellant’s] appellate rights
relative to our Opinion of April 28, 2016 wherein we denied his pro se Motion
to Withdraw Guilty Plea are REINSTATED forthwith nunc pro tunc.” Trial Court
Order, 4/24/18, at 1. Given that the denial of Appellant’s pro se Motion to
Withdraw Guilty Plea finalized Appellant’s judgment of sentence, the nunc pro
tunc reinstatement of Appellant’s direct appeal rights “relative” to the
“Opinion” explaining the denial of Appellant’s pro se Motion to Withdraw Guilty
Plea does nothing less than reinstate Appellant’s entire direct appeal rights
nunc pro tunc. See Youst v. Keck’s Food Serv., Inc., 94 A.3d 1057, 1079
(Pa. Super. 2014) (stating that, generally, “a trial court can only speak
through its orders – and that any reasoning contained in a Rule 1925(a)
opinion is advisory, and for the benefit of [the Superior] Court only”).


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declared that it would not decide Appellant’s remaining ineffective assistance

of counsel claims, as Appellant’s case was now on direct appeal. See Trial

Court Opinion, 4/24/18, at 11; Trial Court Order, 4/24/18, at 1.

        On May 3, 2018, Appellant filed a “Motion to Waive PCRA Rights so as

to Raise Ineffectiveness Claims on Direct Appeal” (hereinafter “Appellant’s

Motion to Waive PCRA Rights”). Appellant requested that the trial court allow

him to “relinquish his statutory right to PCRA review so that he may present

the ineffectiveness claims he raised and developed at his PCRA hearings in his

reinstated direct appeal, along with his issue concerning his request to

withdraw his guilty plea.” Appellant’s Motion to Waive PCRA Rights, 5/3/18,

at 5-6.

        The trial court denied Appellant’s Motion to Waive PCRA Rights on May

9, 2018. On May 14, 2018, Appellant filed a timely notice of appeal from his

judgment of sentence. Appellant’s Notice of Appeal, 5/14/18, at 1. Appellant

raises the following claims on appeal:10,      11



          [1.] Whether the [trial] court properly construed
          [Appellant’s] first counseled PCRA petition as timely pursuant
          to Commonwealth v. Williams, 828 A.2d 981 (Pa. 2003),
          Commonwealth v. Tedford, 781 A.2d 1167 (Pa. 2001), and
          Commonwealth v. Duffey, 713 A.2d 63 (Pa. 1998), and
____________________________________________


10On March 15, 2019, this Court granted en banc reargument in this case
and, in the order granting reargument, we permitted Appellant to file a
supplemental brief. Order, 3/15/19, at 1. Our recitation of Appellant’s issues
combines the claims Appellant raised in his original and supplemental briefs.

11   For ease of discussion, we have renumbered Appellant’s claims on appeal.


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       correctly reinstated [Appellant’s] direct appeal rights where
       its prior dismissals of [Appellant’s] pro se filings, without the
       appointment of PCRA counsel, were in error and were legal
       nullities?

       [2.] In the alternative, is application of the PCRA time-bar
       unconstitutional as applied where [Appellant] was deprived
       of his due process rights based on errors made by the . . .
       [trial] court which failed to appoint him counsel to file a direct
       appeal and repeatedly failed to appoint PCRA counsel and did
       not properly treat timely filed PCRA petitions as PCRA
       petitions?

       [3.] Did the . . . [trial] court's actions constitute a breakdown
       in the judicial system warranting reinstatement of
       [Appellant’s] direct appeal rights?

       [4.] Did the [trial] court err in failing to appoint counsel to
       represent [Appellant] for purposes of litigating post-sentence
       motions and a direct appeal and its colloquy was deficient,
       thereby rendering the waiver doctrine inapplicable to his
       failure to file post-sentence motions challenging his
       sentence?

       [5.] Did the [trial] court err in declining to grant [Appellant’s]
       request to withdraw his guilty plea where it was not
       knowingly, voluntarily, and intelligently entered and he was
       legally innocent of the charge to which he pled guilty as he
       did not have the requisite mens rea and the victim did not
       suffer serious bodily injury?

       [6.]   Whether    [Appellant’s]  sentence   was   grossly
       disproportionate to other sentences imposed in Cambria
       County for the same or similar offenses where [Appellant]
       suffered from health problems, is disabled, and a military
       veteran?

       [7.] The [PCRA] court erred in declining to conduct a PCRA
       waiver colloquy to allow [Appellant] to raise and litigate
       ineffective assistance of counsel claims on direct appeal
       where [Appellant] already developed an adequate record at
       two separate PCRA hearings and good cause and/or
       exceptional circumstances exist to allow [Appellant] to
       pursue the following ineffectiveness claims on direct appeal:

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              [a.] Whether plea counsel was ineffective in advising his
              client to plead guilty and failing to timely advise his client
              of the applicability of the deadly weapon used sentencing
              guideline enhancement, and that the sentencing guideline
              ranges that were applicable increased his standard range
              guideline by 30 to 48 months, causing [Appellant’s] plea
              to be unknowing and unintelligent?

              [b.] Plea counsel was ineffective in failing to move to
              withdraw [Appellant’s] guilty plea prior to sentencing on
              the date of sentencing where [Appellant] requested that
              counsel do so upon learning that the Commonwealth was
              seeking to apply different sentencing guidelines, and
              causing [Appellant] to be subject to the more stringent
              post-sentence withdrawal standard.

              [c.] Plea counsel was ineffective in failing to object to the
              prosecutor's claim that [Appellant] had fired his weapon
              at torso level multiple times where discovery revealed
              that several shots entered the building at [17] to [21]
              inches from the ground.

              [d.] Counsel was ineffective in failing to present
              [Appellant’s]  additional  character    witnesses      at
              sentencing, who were present, and ready to testify on his
              behalf.

              [e.] Plea counsel was ineffective in advising his client to
              plead guilty and failing to litigate both the suppression
              motion filed herein where meritorious suppression issues
              existed as well as other potentially meritorious
              suppression issues not included in counsel's boilerplate
              motion.

Appellant’s    Brief   at   5-7   (some    capitalization   omitted);    Appellant’s

Supplemental Brief at i.

                                   III. Analysis

      In Appellant’s first three claims on appeal, Appellant contends that the

trial court properly concluded that it had jurisdiction to grant him relief under

                                       - 17 -
J-E01004-19


the PCRA.     See Appellant’s Supplemental Brief at i.          Conversely, the

Commonwealth claims that the trial court did not have jurisdiction to rule upon

the merits of the PCRA petition and that we should either quash or dismiss

this appeal. See Commonwealth’s Brief at 18. We conclude that the trial

court possessed jurisdiction to grant Appellant post-conviction collateral relief.

      At the outset, although this case is on direct appeal following the nunc

pro tunc restoration of Appellant’s direct appellate rights, we must first

consider whether the trial court had jurisdiction to grant Appellant

post-conviction collateral relief in the form of the reinstatement of his direct

appeal rights. We explain.

      This Court has held it “well settled that a judgment or decree rendered

by a court which lacks jurisdiction of the subject matter or of the person is

null and void.” Commonwealth v. Schmotzer, 831 A.2d 689, 695 n.2 (Pa.

Super. 2003); see also Comm. ex rel. Penland v. Ashe, 19 A.2d 464, 466

(Pa. 1941) (“every judgment is void, which clearly appears on its own face to

have been pronounced by a court having no jurisdiction or authority in the

subject-matter”). A void judgment is “no judgment at all.” Ashe, 19 A.2d at

466. Thus, our Supreme Court has held, “it is the duty of the court of its own

motion to strike off [a void judgment] whenever its attention is called to it.”

Romberger v. Romberger, 139 A. 159, 160 (Pa. 1927).

      Moreover, the PCRA contains a jurisdictional time-bar, which is subject

to limited statutory exceptions.     This time-bar demands that “any PCRA


                                     - 18 -
J-E01004-19


petition, including a second or subsequent petition, [] be filed within one year

of the date that the petitioner's judgment of sentence becomes final, unless

[the] petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Our Supreme

Court has explained:

        the PCRA timeliness requirements are jurisdictional in nature
        and, accordingly, a PCRA court is precluded from considering
        untimely PCRA petitions. See, e.g., . . . Commonwealth v.
        Fahy, 737 A.2d 214, 220 (Pa. 1999) (holding that where a
        petitioner fails to satisfy the PCRA time requirements, [the
        Pennsylvania Supreme] Court has no jurisdiction to entertain
        the petition). [The Pennsylvania Supreme Court has] also
        held that even where the PCRA court does not address the
        applicability of the PCRA timing mandate, th[e Pennsylvania
        Supreme Court would] consider the issue sua sponte, as it is
        a threshold question implicating our subject matter
        jurisdiction and ability to grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 475–476 (Pa. 2003); see also

Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011) (holding

that, since the PCRA’s time-bar implicates the subject matter jurisdiction of

our courts, “courts are without jurisdiction to offer any form of relief . . .

beyond th[e jurisdictional] time-period”) (some capitalization omitted).

      Hence, in this case, we must initially determine whether Appellant’s

PCRA petition was timely. This is because, if the petition were not timely, the

trial court would not have had subject matter jurisdiction over Appellant's

PCRA petition, the trial court's nunc pro tunc restoration of Appellant’s direct

appellate rights would be “null and void,” and we would not have jurisdiction

                                     - 19 -
J-E01004-19


to consider the merits of any claim on direct appeal. See Schmotzer, 831

A.2d at 695 n.2.

       The trial court sentenced Appellant on March 29, 2016. After granting

Appellant an extension of time to file his post-sentence motion and after

considering Appellant’s pro se Motion to Withdraw Guilty Plea, the trial court

denied Appellant’s motion on April 28, 2016.          As explained above, since

Appellant did not file a timely, direct appeal from his judgment of sentence,

Appellant’s judgment of sentence became final on May 31, 2016. See supra

at *7-8. Appellant then had until May 31, 2017 to file a timely petition under

the PCRA. See 42 Pa.C.S.A. § 9545(b)(1).

       As noted above, in the one year after Appellant's judgment of sentence

became final (and while Appellant was no longer represented by counsel),

Appellant filed multiple pro se documents where he sought relief from his

judgment of sentence, based upon claims that Plea Counsel was ineffective or

that his constitutional rights were violated.      These filings constitute timely

PCRA petitions, as they were filed within one year of the date Appellant’s

judgment of sentence became final and they raised claims that were

cognizable under the PCRA.12 See 42 Pa.C.S.A. § 9542 (the PCRA “is the sole

____________________________________________


12 Amongst the claims encompassed by the PCRA are claims that the
petitioner’s “conviction or sentence resulted from:” “[a] violation of the
Constitution of this Commonwealth or the Constitution or laws of the United
States which, in the circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of guilt or innocence



                                          - 20 -
J-E01004-19


means of obtaining collateral relief and encompasses all other common law

and statutory remedies . . . including habeas corpus and coram nobis”);

Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007) (“[t]he PCRA

subsumes all forms of collateral relief, including habeas corpus, to the extent

a remedy is available under such enactment”); Commonwealth v.

Descardes, 136 A.3d 493, 501 (Pa. 2016) (“the language of the PCRA clearly

requires that an individual seeking relief from the judgment of sentence itself

. . . pursue his request for relief through the PCRA. . . .         [Further, the

Pennsylvania Supreme Court] has consistently held that, pursuant to the plain

language of Section 9542, where a claim is cognizable under the PCRA, the

PCRA is the only method of obtaining collateral review”).

       As such, regardless of the way the pro se Appellant titled these filings,

the trial court should have sua sponte treated the filings as PCRA petitions.

Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002) (“the

PCRA provides the sole means for obtaining collateral review, and [] any

petition filed after the judgment of sentence becomes final will be treated as

a PCRA petition”); Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.

Super. 2001) (holding:         “[a]ppellant's pro se petition, entitled “Notice of



____________________________________________


could have taken place” and “[i]neffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S.A. §§ 9543(a)(2)(i) and (ii).


                                          - 21 -
J-E01004-19


Post-Sentence Motion Challenging Validity of Guilty Plea to Permit Withdrawal,

Nunc Pro Tunc,” must be treated as a PCRA petition, since the PCRA is the

exclusive vehicle for obtaining post-conviction collateral relief. This is true

regardless of the manner in which the petition is titled”) (citation omitted).

       Unfortunately, the trial court was late in recognizing that most of

Appellant’s timely pro se filings sought relief under the PCRA – and, thus, that

it should have considered the filings to be PCRA petitions. As a result, the

trial court denied most of Appellant’s PCRA petitions without either appointing

counsel to represent Appellant or, at least, conducting a proper colloquy to

determine whether Appellant wished to waive his right to counsel.13 This was

clear error. Certainly, as we have explained, “it is undisputed that first time

PCRA petitioners have a rule-based right to counsel.” Commonwealth v.

Figueroa, 29 A.3d 1177, 1180 n.6 (Pa. Super. 2011). This right to counsel

“exists throughout the post-conviction proceedings, including any appeal from

[the] disposition of the petition for post-conviction relief.” Commonwealth

v. Quail, 729 A.2d 571, 573 (Pa. Super. 1999) (citations and quotations

omitted); see also Pa.R.Crim.P. 904(A) and (C). Further, our Supreme Court

has held, “[w]hen a waiver of the right to counsel is sought at the

post-conviction and appellate stages, an on-the-record determination should


____________________________________________


13The trial court afforded Appellant in forma pauperis status throughout the
entire time Appellant was filing his pro se PCRA petitions. Trial Court Order,
7/25/16, at 1.


                                          - 22 -
J-E01004-19


be made that the waiver is a knowing, intelligent, and voluntary one.”

Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998).

      Nevertheless, the trial court did not deny all of Appellant’s timely pro se

PCRA petitions. Rather, as explained above, on August 10, 2016 and August

17, 2016, Appellant filed separate pro se documents entitled “Notice of Direct

Appeal” and, in these filings, Appellant claimed that he was entitled to relief

from his judgment of sentence because Plea Counsel was ineffective and both

the trial court and the Commonwealth violated his constitutional rights. See

Appellant’s Pro Se “Notice of Direct Appeal,” 8/10/16, at ¶¶ 1-28(Z);

Appellant’s Pro Se “Notice of Direct Appeal,” 8/17/16, at ¶¶ 1-28(Z). Since

these pro se filings sought relief from Appellant’s judgment of sentence based

upon claims that are cognizable under the PCRA, the filings constitute PCRA

petitions. See Descardes, 136 A.3d at 503 (“where a petitioner's claim is

cognizable under the PCRA, the PCRA is the only method of obtaining collateral

review”). Moreover, Appellant filed the pro se PCRA petitions within one year

of the date his judgment of sentence became final. The filings are thus timely

under the PCRA.

      As noted above, while the trial court failed to consider Appellant’s

August 10, 2016 “Notice of Direct Appeal” to be a PCRA petition, the trial court

did not dismiss or dispose of the petition and the trial court did not deny

Appellant relief. Instead, the trial court took the unusual step of entering an




                                     - 23 -
J-E01004-19


order where it expressly declared that it would not rule upon the August

10, 2016 “Notice of Direct Appeal.” Again, the trial court’s order declared:

         this 22nd day of August, 2016, upon consideration of
         [Appellant’s] “Notice of Direct Appeal,” we decline to
         render ruling as said document is untimely, and as such,
         we are without jurisdiction. Further, consistent with the
         analysis set forth herein, this Order shall serve as notice to
         [Appellant] that the Court will decline to render ruling
         relative to any future filings of a similar nature. To the
         extent that [Appellant] timely wishes to pursue Post-
         Conviction Collateral Relief, said petitions will be entertained.

Trial Court Order, 8/22/16, at 2-3 (some emphasis added) (some original

emphasis omitted).

       Regardless of the reasons why the trial court believed it proper to

“decline to render ruling” upon the August 10, 2016 “Notice of Direct Appeal,”

the simple fact remains that the trial court expressly refused to rule upon

Appellant’s August 10, 2016 “Notice of Direct Appeal” and, thus, the filing

remained extant.14 Further, and consistent with the trial court’s warning to

____________________________________________


14 The dissent claims that the trial court’s August 22, 2016 order “denied
Appellant the relief he requested” and “finally dispos[ed] of” Appellant’s
August 10, 2016 petition. Dissenting Memorandum, at *4. The dissent then
cites precedent, which merely holds that an order dismissing a petition for
lack of jurisdiction is a final, appealable order.             See id., citing
Commonwealth v. Anderson, 630 A.2d 47, 49 n.9 (Pa. Super. 1993)
(holding that, where the trial court dismissed all charges against the
defendant for lack of subject matter jurisdiction, the order was final); Bergere
v. Bergere, 527 A.2d 171, 172 (Pa. Super. 1987) (holding: where the trial
court dismissed wife’s petition for lack of personal jurisdiction, the order was
final). In the case at bar, however, the trial court’s August 22, 2016 order did
not “deny” Appellant relief and the order did not “dismiss” or “dispose” of
Appellant’s August 10, 2016 petition. Instead, by the plain language of the



                                          - 24 -
J-E01004-19


Appellant that it would “decline to render ruling relative to any future filings

of a similar nature,” the trial court did not enter any order with respect to

Appellant’s August 17, 2016 pro se petition.15 See Trial Court Order, 8/22/16,

____________________________________________


trial court’s order, the trial court declared that it was refusing to even rule
upon Appellant’s petition. And, in the absence of a ruling on the petition, the
petition remained unresolved.

15 The dissent characterizes Appellant’s August 17, 2016 “Notice of Direct
Appeal” as merely an exhibit to Appellant’s “Motion for Corrective Order.” See
Dissenting Memorandum, at *5. This is incorrect. Appellant’s pro se, August
17, 2016 “Motion for Corrective Order” declares:

                         MOTION FOR CORRECTIVE ORDER

         AND NOW COMES [Appellant], Pro Se, [] with the following
         MOTION FOR CORRECTIVE ORDER and offers the Honorable
         Court the following in support:

         (A) Appellant filed a timely NOTICE OF APPEAL with the [trial]
         court.

         (B) [The trial court judge] DENIED said motion as being
         untimely on August 3, 2016 and issued an Order of Court
         stating same.

         (C) Appellant had filed an Omnibus Post-Sentence Motion
         with the [trial] court on or about April 6, 2016. Said motion
         was granted by the [trial court].           Said motion gave
         [Appellant] an additional 120 days for filing of post-conviction
         motions due to the fact that [Appellant’s] private counsel had
         previously filed.

         WHEREFORE, [Appellant] MOVES the [trial] court to issue a
         CORRECTIVE ORDER and accept [Appellant’s] Notice of
         Appeal and set a hearing date for aforementioned appeal.

Appellant’s Pro Se “Motion for Corrective Order,” 8/17/16, at 1 (some
capitalization omitted) (emphasis in original).



                                          - 25 -
J-E01004-19


____________________________________________




There are several reasons why Appellant’s August 17, 2016 “Notice of Direct
Appeal” cannot be characterized as an exhibit to the “Motion for Corrective
Order.” First, Appellant’s “Motion for Corrective Order” does not state that it
has any attached exhibits and the “Notice of Direct Appeal” is not labeled as
an exhibit to anything. See id. Second, the “Motion for Corrective Order”
does not even reference the “Notice of Direct Appeal.” Instead, the “Motion
for Corrective Order” references two filings: a “Notice of Appeal” (that
Appellant filed on July 28, 2016 and the trial court denied on August 3, 2016)
and an “Omnibus Post-Sentence Motion” (that the trial court accepted on April
13, 2016 and denied on April 28, 2016). Id.; see also supra, at *8
(reproducing Appellant’s pro se, July 28, 2016 “Notice of Appeal from
Sentence”). Third, Appellant attached a “Certificate of Good Faith” and a
“Certificate of Service” to both his August 17, 2016 “Motion for Corrective
Order” as well as his August 17, 2016 “Notice of Direct Appeal,” thus indicating
separate filings. Fourth, the record includes an apparent cover letter to
Appellant’s August 17, 2016 filings. This cover letter, which the Cambria
County Clerk of Courts time-stamped August 17, 2016, declares:

         August 11, 2016

         Ms. Susan Kuhar
         Clerk of Courts
         Cambria County Courthouse
         200 S. Center Street
         Ebensburg, PA 15931

         Ms. Kuhar:

         Enclosed, please find a Motion for Corrective Order to be
         [filed]. The [trial court] erred in denying my Notice of Appeal
         and although I wrote him a letter in reference to same I felt
         obligated to formally broach this mistake. Also, you will
         find my Notice of Direct Appeal and Brief in support of
         same.

         As always, I would request a time stamped [copy] of these
         instruments be returned to me because in my current
         situation, copies are nearly impossible to produce. Thank
         you!




                                          - 26 -
J-E01004-19


at 2-3 (emphasis added).          The pro se PCRA petitions were, thus, still in

existence when counsel entered his appearance and filed the Amended PCRA


____________________________________________


                                   /s
                                   Russell S. Shick, Pro Se
                                   Appellant

Appellant’s Cover Letter to Clerk of Courts Kuhar, 8/17/16, at 1 (emphasis
added).

The language in Appellant’s cover letter further supports the conclusion that
the August 17, 2016 “Notice of Direct Appeal” was not an exhibit to the
“Motion for Corrective Order,” but was, rather, a separate filing.

Finally, and perhaps most importantly, the Cambria County Clerk of Courts
separately time-stamped Appellant’s August 17, 2016 “Notice of Direct
Appeal.” This separate time-stamp is further evidence that the August 17,
2016 “Notice of Direct Appeal” was separately filed and was not, as the dissent
declares, a mere exhibit to the “Motion for Corrective Order.”               See
Pa.R.Crim.P. 903 (“[u]pon receipt of a petition for post-conviction collateral
relief, the clerk of courts promptly shall time stamp the petition with the date
of receipt and make a docket entry, at the same term and number as the
underlying conviction and sentence, reflecting the date of receipt, and
promptly shall place the petition in the criminal case file”) (emphasis added);
see also S.E. Pa. Transp. Auth. v. DiAntonio, 618 A.2d 1182, 1184 (Pa.
Cmwlth. 1992) (holding: “the prothonotary accepted [the defendant’s]
answer by time-stamping a copy.             These actions constitute ‘filing’”);
Commonwealth v. Little, 716 A.2d 1287, 1288 (Pa. Super. 1998) (“[t]he
prisoner mailbox rule provides that the date of delivery of the PCRA petition
by the defendant to the proper prison authority or to a prison mailbox is
considered the date of filing of the petition”). We note that, even though the
clerk of courts separately time-stamped Appellant’s August 17, 2016 “Notice
of Direct Appeal,” the clerk of courts failed to make a separate docket entry
for the filing. See Pa.R.Crim.P. 903. Nevertheless, Appellant cannot be
faulted for this failure, as he has no control over the clerk of court’s actions.
Commonwealth v. Castro, 766 A.2d 1283, 1287 (Pa. Super. 2001) (“the
failure to docket the arrival of the petition does not control the determination
of whether or not Appellant's petition was timely ‘filed’”) (emphasis omitted).




                                          - 27 -
J-E01004-19


Petition. As such, the Amended PCRA Petition constitutes “an extension of

[the] existing[, August 10, 2016 and August 17, 2016] petition[s] rather than

a new and distinct petition.”16 Tedford, 781 A.2d at 1171 n.6. Appellant’s




____________________________________________


16 Prior to Appellant’s August 10, 2016 filing, Appellant filed two earlier pro se
documents that sought relief under the PCRA and were, therefore, PCRA
petitions. See Appellant’s Pro Se “Notice of Appeal from Sentence,” 7/28/16,
at 1-3; Appellant’s Pro Se “Motion to Dismiss,” 8/5/16, at 1-6.

The trial court erroneously failed to consider the two earlier filings to be PCRA
petitions and it summarily dismissed the petitions without providing Appellant
with his rule-based right to counsel. Given this failure, Appellant’s surviving,
August 10, 2016 “Notice of Direct Appeal” constitutes Appellant’s first PCRA
petition. See Commonwealth v. Tedford, 781 A.2d 1167 (Pa. 2001)
(holding that, where the PCRA court erroneously dismissed the petitioner’s pro
se PCRA petition instead of directing that the petitioner’s attorney file an
amended petition, the Supreme Court would treat the later, counseled PCRA
petition as a first PCRA petition; the Tedford Court then held that the
counseled petition was timely under the one-year grace period for first-time
PCRA petitions, which was contained in the 1995 amendments to the PCRA,
because the petitioner’s “sentence became final . . . before the effective date
of the [1995 amendments to the] PCRA” and the petitioner filed the counseled
PCRA petition on January 16, 1996, which was “within a year of the effective
date of the amendments”); see also Commonwealth v. Williams, 828 A.2d
981, 990-991 (Pa. 2003) (“when [the petitioner] filed his pro se [PCRA]
petition he was entitled to the advice of counsel and if he withdrew that
petition before the appointment of counsel [and before a judicial ruling on the
motion to withdraw the petition], then his second petition should be treated
as a first petition nunc pro tunc”).




                                          - 28 -
J-E01004-19


petition is, therefore, timely under the PCRA.17,   18   As such, the trial court had

jurisdiction to grant Appellant post-conviction collateral relief in the form of

____________________________________________


17 The trial court and the parties mistakenly believe that the trial court
dismissed all of Appellant’s pro se filings. See Appellant’s Supplemental Brief
at 1-25; Commonwealth’s Brief at 6-7 and 10-21; Trial Court Opinion,
4/24/18, at 3-5. Further, on appeal, Appellant essentially requested that this
Court uphold the trial court’s ruling based on an application of the
“amendment theory” (which is a theory that our Supreme Court has explicitly
rejected) or by creating an equitable exception to the PCRA’s one-year time-
bar (which we have no authority to realize). See Appellant’s Supplemental
Brief at 1-12; Commonwealth v. Rienzi, 827 A.2d 369 (Pa. 2003) (holding
that the Superior Court erred in attempting “to circumvent the PCRA time-bar
by treating [a] second PCRA petition as an amendment to [a timely, but
withdrawn,] first petition, where . . . the second petition was filed after the
expiration of the PCRA filing deadline”); Commonwealth v. Eller, 807 A.2d
838, 845 (Pa. 2002) (“[t]he PCRA confers no authority upon [the Pennsylvania
Supreme] Court to fashion ad hoc equitable exceptions to the PCRA time-bar
in addition to those exceptions expressly delineated in the Act. In this regard,
we note that [the Supreme] Court already has held that the PCRA's time
restrictions are not subject to equitable tolling”); see also Commonwealth
v. Robinson, 837 A.2d 1157, 1158-1162 (Pa. 2003) (rejecting the Superior
Court’s “extension theory,” which “construe[d] an untimely, serial PCRA
petition as if it were an ‘extension’ of a timely, but previously dismissed, first
PCRA petition in cases where an appeal was taken from the denial of the first
petition, but the Superior Court ultimately dismissed the appeal when the
PCRA appellant failed to file a brief;” the Robinson Court held that “the
Superior Court's innovation of this non-textual exception to the PCRA's time
requirement [was] clearly erroneous” and further held that “the Superior
Court's ‘extension’ theory ignores bedrock principles of finality. Once a PCRA
petition has been decided and the ruling on it has become final, there is
nothing for a subsequent petition or pleading to ‘extend.’ Far from continuing
into perpetuity, the trial court's jurisdiction over a matter generally ends once
an appeal is taken from a final order or, if no appeal is taken, thirty days
elapse after the final order”).

Nevertheless, “we may affirm a PCRA court’s decision on any grounds if the
record supports it.” Commonwealth v. Benner, 147 A.3d 915, 919 (Pa.
Super. 2016) (quotations and citations omitted). Since Appellant’s August 10,
2016 and August 17, 2016 pro se filings, entitled “Notice of Direct Appeal,”



                                          - 29 -
J-E01004-19


the nunc pro tunc restoration of Appellant’s direct appeal rights and we have

jurisdiction over the current, direct appeal from Appellant’s judgment of

sentence.19

____________________________________________


were timely, pro se PCRA petitions, which were never dismissed (or even ruled
upon) by the trial court, the counseled, November 1, 2017 Amended PCRA
Petition was also timely, as the Amended PCRA Petition was “an extension of
[the] existing[, August 10, 2016 and August 17, 2016] petition[s].”
Tedford, 781 A.2d at 1171 (emphasis added).

18 The dissent finds comfort in the fact that the parties and the trial court
believe that the trial court dismissed every one of Appellant’s pro se filings.
Dissenting Memorandum, at *5-6. However, as noted above, the trial court
and the parties were mistaken in their belief that the trial court dismissed all
of Appellant’s pro se filings – and we are not bound by their mistaken beliefs.
See Smith v. Mason, 476 A.2d 1347, 1349 (Pa. Super. 1984) (“[a]lthough
the trial judge characterized his order as an order of civil contempt, we are
not bound by this characterization. It is clear from the circumstances
surrounding the entry of the order that it was an order of criminal contempt”);
Benner, 147 A.3d at 919 (“we may affirm a PCRA court’s decision on any
grounds if the record supports it”) (quotations and citations omitted).

19 The Commonwealth claims that the counseled, November 1, 2017 Amended
PCRA Petition was invalid because the trial court did not authorize the
amendment to Appellant’s pro se PCRA petition. Commonwealth’s Brief at
13-14. The Commonwealth’s claim is meritless for several reasons, the most
important being that the trial court, in fact, expressly authorized the
amendment. Trial Court Opinion, 4/24/18, at 7 (the trial court specifically
rejected the Commonwealth’s claim that “[Appellant] did not request and
receive permission to amend [the] PCRA petition” and declared that “justice
compels providing [Appellant] an opportunity to pursue his counseled PCRA
[p]etition”); see also Pa.R.Crim.P. 905(A) (“[t]he judge may grant leave to
amend or withdraw a petition for post-conviction collateral relief at any time.
Amendment shall be freely allowed to achieve substantial justice”);
Commonwealth v. Cherry, 155 A.3d 1080 (“[petitioners] have a general
rule-based right to the assistance of counsel for their first PCRA Petition. . . .
[C]ounsel's duty is to either (1) amend the petitioner's pro se Petition and
present the petitioner's claims in acceptable legal terms, or (2) certify that the
claims lack merit by complying with the mandates of [Commonwealth v.



                                          - 30 -
J-E01004-19


       Appellant’s first substantive claim contends that the trial court erred

when it deprived him of his right to counsel at the post-sentence motion stage.

Appellant’s Brief at 33-39. We agree. We thus vacate the trial court’s April

28, 2016 order, which denied Appellant’s pro se Motion to Withdraw Guilty

Plea, and remand for further proceedings.

       At the very least, defendants have a rule-based right to the assistance

of counsel at the post-sentence motion stage.         Pa.R.Crim.P. 704(C)(3)

(declaring that the defendant has “the right to assistance of counsel in the

preparation of the [post-sentence] motion”). In order to waive this right to

counsel, the trial court judge must “ensure that the defendant’s wavier of the

right to counsel is knowing, voluntary, and intelligent.”         Pa.R.Crim.P.

121(A)(2) and (C). To do so, the judge must, “at a minimum,” elicit certain,

specified information from the defendant. Pa.R.Crim.P. 121(A)(2). Tailored

to the post-sentence motion stage of the proceedings, this inquiry includes:

“that the defendant understands that he [] has the right to be represented by

counsel, and the right to have free counsel appointed if the defendant is



____________________________________________


Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc).] If appointed counsel fails to take either of
these steps, our courts have not hesitated to find that the petition was
effectively uncounseled”) (footnote, quotations, and some citations omitted);
Commonwealth v. Brown, 141 A.3d 491, 503-504 (Pa. Super. 2016)
(“when a petitioner files supplemental materials to a PCRA petition, and the
PCRA court considers such materials, an attempt by the Commonwealth to
preclude consideration of such materials fails”).


                                          - 31 -
J-E01004-19


indigent;” “that the defendant understands that if he [] 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;” “that the defendant

understands [] there are possible defenses [or claims] to these charges[,

convictions, and sentence] that counsel might be aware of, and if these

defenses [or claims] are not raised [in the post-sentence motion], they may

be lost permanently;” and, “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.”20       See Pa.R.Crim.P. 121(A)(2)(a), (d), (e), and (f); c.f.

Commonwealth v. Robinson, 970 A.2d 455, 458-460 (Pa. Super. 2009) (en

banc) (holding that, even though not all of the provisions contained in Rule



____________________________________________


20   As we have also held:

          In addition to the Rule 121(A) factors, a waiver colloquy
          must, of course, always contain a clear demonstration of the
          defendant's ability to understand the questions posed to him
          during the colloquy. . . . The court should also inquire about
          the defendant's age, educational background, and basic
          comprehension skills. The trial judge need not literally be the
          one to pose the questions to the defendant, but the text of
          Rule 121(C) requires the judge to ascertain the quality of the
          defendant's waiver.

Commonwealth v. Phillips, 93 A.3d 847, 852-853 (Pa. Super. 2014)
(quotations, citations, and emphasis omitted).


                                          - 32 -
J-E01004-19


121(A)(2) are germane at the PCRA stage, the PCRA court must explain the

relevant Rule 121(A)(2) provisions to any petitioner who seeks to waive his

rule-based right to counsel and must tailor the provisions to the context).

       In the case at bar, the trial court permitted Appellant’s counsel to

withdraw at the post-sentence motion stage. As explained above, the trial

court did not appoint another attorney to represent Appellant and the court

did not conduct the necessary colloquy to determine whether Appellant

knowingly, voluntarily, and intelligently waived his right to counsel. Instead,

the trial court simply asked Appellant: “is [it] your desire to proceed pro se

or do you want more time to get new counsel?”       N.T. Hearing, 4/28/16, at

4-5. And, after Appellant told the court “I think I could proceed today on my

own,” the trial court allowed Appellant to proceed through the entirety of the

post-sentence motion stage – including the filing of the motion – pro se. This

was erroneous.

       Further, since some of Appellant’s claims on appeal require development

through the post-sentence motion procedure or elucidation from the trial

court, we must vacate the trial court’s April 28, 2016 order, which denied

Appellant’s pro se Motion to Withdraw Guilty Plea, and remand for the filing

nunc pro tunc of a counseled post-sentence motion.21        See Pa.R.Crim.P.

____________________________________________


21Appellant appears to believe that we can reach the merits of his challenge
to the guilty plea, his claim regarding the discretionary aspects of his
sentence, and his claim that his sentence was “grossly disproportionate” to



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720(B)(1)(a)(i) and (v); see also Commonwealth v. D’Collanfield, 805

A.2d 1244, 1246 (Pa. Super. 2002) (to preserve an issue related to a guilty

plea, the defendant must “object[] at the sentence colloquy or otherwise

rais[e] the issue at the sentencing hearing or through a post-sentence

motion”); Commonwealth v. Yockey, 158 A.3d 1246, 1259 (Pa. Super.

2017) (to preserve a challenge to the discretionary aspects of a sentence, the

defendant must raise the claim at sentencing or in a post-sentence motion).



____________________________________________


his crime. See Appellant’s Brief at 25-44; see also Commonwealth v.
Corley, 31 A.3d 293, 297-298 (Pa. Super. 2011) (holding that, since the
defendant was denied his right to counsel at the post-sentence motion stage,
we would not consider his challenge to the discretionary aspects of his
sentence waived; further, we held that we would consider the issue on appeal
because “the purpose behind a post-sentence motion has been satisfied
herein. . . . [Specifically, the] trial court already had an opportunity to modify
Appellant's sentence prior to the first appeal and did so. Moreover, we have
the benefit of the trial court's reasoning in imposing [a]ppellant's sentence as
the court addressed this at length in its Rule 1925(b) opinions”). However,
even if we were to apply the principles of relaxed waiver allowed by Corley,
we cannot reach the merits of Appellant’s claims because: the trial court
erroneously allowed Appellant to litigate his post-sentence motion pro se and
none of Appellant’s claims were adequately raised in the pro se motion or
developed at the hearing; the trial court did not adequately address
Appellant’s concerns and claims regarding the challenge to his guilty plea; the
trial court provided us with very little explanation as to the reasons why it
imposed a seven-and-one-half to 15 year sentence; and, Appellant’s claim
that his sentence is “grossly disproportionate to the crime” hinges upon facts
and allegations that are not contained in the current record or ruled upon by
the trial court, including Appellant’s allegation that the victim merely “suffered
a flesh wound from a ricocheted bullet.” See Trial Court Opinion, 4/28/16, at
1-6; Trial Court Opinion, 6/19/18, at 1-3; Appellant’s Brief at 39-44. Thus,
“the purpose behind [the] post-sentence motion” has not been satisfied in this
case and we may not reach the merits of Appellant’s substantive claims. See
Corley, 31 A.3d at 297.


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      Given our disposition, Appellant’s claims that the trial court erred when

it denied his pro se Motion to Withdraw Guilty Plea, imposed a manifestly

excessive   sentence,    and   imposed    a   sentence    that   was   “grossly

disproportionate” to his crime are moot. Appellant may raise these issues in

his counseled post-sentence motion.

      Finally, Appellant claims that the trial court erred when it denied his

Motion to Waive PCRA Rights. In this motion, Appellant requested that the

trial court allow him to “relinquish his statutory right to PCRA review so that

he may present the ineffectiveness claims he raised and developed at his PCRA

hearings in his reinstated direct appeal, along with his issue concerning his

request to withdraw his guilty plea.” Appellant’s Motion to Waive PCRA Rights,

5/3/18, at 5-6. We conclude that the trial court did not abuse its discretion

when it denied Appellant’s motion.

      In Commonwealth v. Grant, our Supreme Court held that, “as a

general rule, a petitioner should wait to raise claims of ineffective assistance

of trial counsel until collateral review.” Commonwealth v. Grant, 813 A.2d

726, 738 (Pa. 2002); see also Commonwealth v. Harris, 114 A.3d 1, 3-4

(Pa. Super. 2015) (“once a PCRA court determines that a petitioner's right to

direct appeal has been violated, the PCRA court is precluded from reaching

the merits of other issues raised in the petition. Rather, once the PCRA court

finds that the petitioner's appellate rights have been abridged, it should grant

leave to file a direct appeal and end its inquiry there”) (quotations and


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J-E01004-19


citations omitted). In Commonwealth v. Holmes, our Supreme Court held

that “Grant’s general rule of deferral to PCRA review remains the pertinent

law on the appropriate timing for review of claims of ineffective assistance of

counsel.”     Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013).

However, the Holmes Court recognized two exceptions to Grant’s general

rule of deferral:

         First, . . . there may be extraordinary circumstances where a
         discrete claim (or claims) of trial counsel ineffectiveness is
         apparent from the record and meritorious to the extent that
         immediate consideration best serves the interests of justice;
         and we hold that trial courts retain their discretion to
         entertain such claims.

         Second, . . . where the defendant seeks to litigate multiple or
         prolix claims of counsel ineffectiveness, including non-record-
         based claims, on post-verdict motions and direct appeal, we
         repose discretion in the trial courts to entertain such claims,
         but only if (1) there is good cause shown, and (2) the unitary
         review so indulged is preceded by the defendant's knowing
         and express waiver of his entitlement to seek PCRA review
         from his conviction and sentence, including an express
         recognition that the waiver subjects further collateral review
         to the time and serial petition restrictions of the PCRA.

Id. at 563-564 (citations and footnotes omitted).22

       Appellant claims that the trial court erred when it refused to allow him

to expressly waive his “entitlement to seek PCRA review from his conviction


____________________________________________


22 In Commonwealth v. Delgros, the Supreme Court recognized a third
exception to Grant’s general deferral rule. Commonwealth v. Delgros, 183
A.3d 352 (Pa. 2018). The Delgros Court held that trial courts must “address
claims challenging trial counsel’s performance where the defendant is
statutorily precluded from obtaining subsequent PCRA review.” Id. at 361.


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J-E01004-19


and sentence,” so as to allow review of his ineffective assistance of counsel

claims on direct appeal. Appellant’s Brief at 44-54. According to Appellant,

since he “raised and developed his ineffectiveness claims before the [trial]

court, and the court conducted evidentiary hearings on those claims,” he

should be entitled to raise the claims on direct appeal. This claim fails.

      Even in cases where one of the two Holmes exceptions to Grant’s

general rule of deferral are seemingly present, it is solely within the trial

court’s discretion to entertain – or refuse to entertain – the ineffectiveness

claim.   See Holmes, 79 A.3d at 563-564.           As our Supreme Court has

emphasized:

         When a court comes to a conclusion through the exercise of
         its discretion, there is a heavy burden to show that this
         discretion has been abused. It is not sufficient to persuade
         the appellate court that it might have reached a different
         conclusion, it is necessary to show an actual abuse of the
         discretionary power. An abuse of discretion will not be found
         based on a mere error of judgment, but rather exists where
         the court has reached a conclusion which overrides or
         misapplies the law, or where the judgment exercised is
         manifestly unreasonable, or the result of partiality, prejudice,
         bias or ill-will. Absent an abuse of that discretion, we will
         not disturb the ruling of the trial court.

Commonwealth v. Eichinger, 915 A.2d 1122, 1140 (Pa. 2007) (citations

omitted).

      As the trial court explained, it refused to consider Appellant’s ineffective

assistance of counsel claims on direct appeal because, as it stands, the case

has a “complex history” and the court did not wish to add to the “procedural

complexity that surrounds the case.”       Trial Court Order, 5/9/18, at 1-2.

                                      - 37 -
J-E01004-19


Simply stated, in light of the strange and convoluted facts of this case (and in

light of Appellant’s lengthy prison term), it cannot be said that the trial court’s

determination was “manifestly unreasonable” – and it certainly cannot be said

that the determination was “the result of partiality, prejudice, bias or ill-will.”

See id. Therefore, we conclude that the trial court did not abuse its discretion

when it denied Appellant’s Motion to Waive PCRA Rights.

      The trial court’s April 28, 2016 order, denying Appellant’s pro se Motion

to Withdraw Guilty Plea, is vacated. Case remanded to allow Appellant to file

a post-sentence motion nunc pro tunc. Jurisdiction relinquished.

      President Judge Emeritus Bender, Judge Lazarus, Judge Kunselman, and

Judge Nichols join this Memorandum.

      Judge Murray files a Dissenting Memorandum which President Judge

Panella, President Judge Emeritus Gantman and Judge McLaughlin join.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/8/2019




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