J-S50030-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                :     IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                           Appellee          :
                                             :
            v.                               :
                                             :
ROBERT E. MILLER, JR.,                       :
                                             :
                           Appellant         :     No. 309 WDA 2014


           Appeal from the PCRA Order Entered January 24, 2014,
           In the Court of Common Pleas of Westmoreland County,
              Criminal Division, at No. CP-65-CR-0001710-2001.


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and ALLEN, JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED SEPTEMBER 08, 2014

      Appellant, Robert E. Miller, Jr., appeals pro se from the order denying

his petition for collateral relief filed pursuant to the Post Conviction Relief Act

                                       9546. We vacate and remand.



of this case as follows:

             Appellant, on February 12, 2002, pleaded guilty to all
      charges brought against him, stemming from his seven-year
      relationship with the minor victim. The minor victim was eight
      years old in 1988 when the incidents began, and [A]ppellant
      admits to having raped her four times and to engaging in
      involuntary deviate sexual intercourse with her on five occasions
      from 1988 to 1995, all while maintaining a relationship with the

      pre-sentence report, [A]ppellant was sentenced on May 9, 2002,
      to serve a total term of incarceration of from twenty to forty
      years.   The trial court denied a postsentence motion to
      reconsider the sentence, by order dated June 20, 2002[.]
J-S50030-14



Commonwealth v. Miller, 295 WDA 2003, 839 A.2d 1158 (Pa. Super. filed

October 17, 2003) (unpublished memorandum at 2).                After reviewing



affirmed the judgment of sentence on October 17, 2003.           Id. at 6.   The

Pennsylvania Supreme Court denied

6, 2004. Commonwealth v. Miller, 847 A.2d 1281 (Pa. 2004).

         Appellant filed a pro se petition for a writ of habeas corpus on January

29, 2013, in which he claimed that the trial court lacked subject matter

jurisd

creating the crimes to which he pled guilty.         Petition, 1/29/13, at ¶ A.



hearing on January 24, 2014, then denied the petition as time-barred.

Order of Court, 1/24/14, at 1 (citing 42 Pa.C.S.A. § 9545(b)(1) and (2)).

This appeal followed.      The PCRA court did not direct Appellant to file a

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

         On appeal, Appellant raises three issues, which we reproduce verbatim

as follows:

         I.    COUNSEL   WAS   INEFFECTIVE FOR  GIVING   BAD
               ADVISE/MISINFORMING DEFENDANT PERTAINING PLEA
               OFFER.

         II.   COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO
               THE INTRODUCTION OF DEFENDANTS INVOLUNTARY
               CONFESSION DUE TO CONDITIONS OF COERCION.




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J-S50030-14



      III.   COUNSEL WAS INEFFECTIVE FOR NOT BRINGING INTO
             INTRODUCTION    NOR  INVESTIGATING BIOLOGICAL
             EVIDENCE (DNA).
                      1



      Initially, we must determine whether this matter is properly before us.

We begin by considering whether the PCRA court accurately considered

                                  habeas corpus to be a PCRA petition. The

scope of the PCRA is explicitly defined as follows:

      This subchapter provides for an action by which persons
      convicted of crimes they did not commit and persons serving
      illegal sentences may obtain collateral relief.        The action
      established in this subchapter shall be the sole means of
      obtaining collateral relief and encompasses all other common law
      and statutory remedies for the same purpose that exist when
      this subchapter takes effect, including habeas corpus and coram
      nobis. This subchapter is not intended to limit the availability of
      remedies in the trial court or on direct appeal from the judgment
      of sentence, to provide a means for raising issues waived in prior
      proceedings or to provide relief from collateral consequences of a
      criminal conviction.

42 Pa.C.S.A. § 9542 (emphasis added).

      The plain language of the statute demonstrates that the General

Assembly intended that claims that could be brought under the PCRA must

be brought under that Act. Commonwealth v. Hall, 771 A.2d 1232, 1235


1
                                                                    pellant has
waived his claims of ineffective assistance of counsel by failing to raise them
in his petition for writ of habeas corpus before the PCRA court.
                                     Commonwealth v. Santiago, 855 A.2d
                                tting a PCRA petitioner to append new claims
to the appeal already on review would wrongly subvert the time limitations



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J-S50030-14




cognizable under the PCRA, the common law and statutory remedies now

                                                                              Id.

(citations omitted). Thus, it is well settled that any collateral petition raising

issues with respect to remedies offered under the PCRA will be considered a

PCRA petition. Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa. Super.

2001).

      In his petition, Appellant claimed that the trial court lacked jurisdiction

to prosecute him due to defects in the enactment of the crimes code.

Petition, 1/29/13, at ¶ A. The question arises whether this particular claim

is one available to him under the PCRA. The relevant portion of the PCRA

provides as follows:

      (a) General rule.--To be eligible for relief under this
      subchapter, the petitioner must plead and prove by a
      preponderance of the evidence all of the following:

                                     * * *

            (2) That the conviction or sentence resulted from
            one or more of the following:

                                     * * *

                  (viii) A proceeding in a tribunal without
                  jurisdiction.




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J-S50030-14



42 Pa.C.S.A. § 9543(a)(2)(viii). Thus, the statute in this matter is clear that

claims attacking the jurisdiction of the court are cognizable under the PCRA.

42 Pa.C.S.A. § 9543(a)(2)(viii).

      Because such a claim is cognizable under the PCRA regardless of the

caption of the petition, the PCRA court properly considered it to be filed

under the PCRA.      Consequently, the PCRA court had no authority to

entertain the claim except under the strictures of the PCRA.

      We note that this is                                                    -

based right to counsel. Commonwealth v. Figueroa, 29 A.3d 1177, 1180

(Pa. Super. 2011); Pa.R.Crim.P. 904(C).2

post-conviction practice, it is intended that counsel be appointed in every

case in which a defendant has filed a petition for post-conviction collateral

relief for the first time and is unable to afford counsel or otherwise procure



that a first-time PCRA petitioner whose petition appears untimely on its face

is entitled to representation for assistance in determining whether the

petition is timely or whether any exception to the normal time requirements

is applicable.   Commonwealth v. Ramos, 14 A.3d 894, 895 (Pa. Super.


2

defendant satisfies the judge that the defendant is unable to afford or
otherwise procure counsel, the judge shall appoint counsel to represent the
                                                         -conviction collateral
         See also Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super.
2014) (surveying history of rule-based right to effective PCRA counsel).

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J-S50030-14



2011) (citing Commonwealth v. Guthrie, 749 A.2d 502, 504 (Pa. Super.

2000), and Commonwealth v. Stout, 978 A.2d 984, 988 (Pa. Super.

2009)). Although a PCRA petition appears to be untimely and the petitioner



overcome both of those hurdles through an examination of all of the relevant

                  Ramos, 14 A.3d at 896.

     Here, Appellant is before us pro se, which gives rise to the question:

Did he knowingly, intelligently, and voluntarily waive PCRA counsel?                  The

record does not provide an answer.

     The      Pennsylvania      Supreme            Court    expressly      required     in

Commonwealth v. Grazier

waiver of the right to counsel is sought at the post-conviction and appellate

stages, an on-the-record determination should be made that the waiver is a

                                                     Id.

incumbent upon the trial court rather than defense counsel to ensure that a

proper waiver-of-                                                  Commonwealth v.

Robinson,       970   A.2d    455   (Pa.      Super.       2009)    (en   banc)    (citing

Commonwealth v. Davido, 868 A.2d 431, at 437 438 (Pa. 2005)).

     Nothing in the record before us indicates that the PCRA court

conducted   a    Grazier     colloquy   to    determine      if    Appellant   knowingly,

intelligently, and    voluntarily relinquished his right to               PCRA counsel.




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J-S50030-14




for the PCRA court to conduct a Grazier colloquy utilizing Pa.R.Crim.P.

121(A)(2)(a), (d), (e) and (f).3 Given our disposition, we will not address



      Order vacated.      Case remanded with instructions.      Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/8/2014




3
  Pursuant to Rule 904(C), should Appellant request PCRA counsel, the trial
court shall appoint counsel if satisfied that Appellant has no means to
procure counsel.

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