J-S65033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

EDWIN JAVIER GUZMAN, JR.,

                            Appellant                 No. 267 WDA 2016


                  Appeal from the PCRA Order January 6, 2016
                  in the Court of Common Pleas of Erie County
               Criminal Division at No.: CP-25-CR-0000461-2010


BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

JUDGMENT ORDER BY PLATT, J.:                       FILED AUGUST 23, 2016

        Appellant, Edwin Javier Guzman, Jr., appeals pro se from the order

denying his first petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We remand.

        On July 12, 2010, Appellant entered a counseled guilty plea to

attempted murder and aggravated assault.             The charges related to

Appellant’s December 12, 2009 shooting of the victim, resulting in serious

injuries, including paralysis. (See N.T. Sentencing Hearing, 8/24/10, at 7-

8). On August 24, 2010, the trial court sentenced Appellant to a standard

range sentence of not less than ten nor more than twenty years’

imprisonment on the attempted murder charge.          (See Sentencing Order,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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8/24/10, at 1; N.T. Sentencing Hearing, 8/24/10, at 21-22).              The

aggravated assault conviction merged for sentencing purposes. This Court

affirmed Appellant’s judgment of sentence on June 1, 2011, and our

Supreme Court denied review on November 1, 2011. (See Commonwealth

v. Guzman, 31 A.3d 732 (Pa. Super. 2011), appeal denied, 32 A.3d 1275

(Pa. 2011)).

     On September 14, 2015, Appellant filed a pro se “Petition to Correct

Illegal Sentence Pursuant to the Court’s Inherent Jurisdiction to Correct,”

which the court properly treated as a first PCRA petition.        The court

appointed PCRA counsel, who filed a supplemental petition on October 20,

2015. On December 10, 2015, the PCRA court issued a notice of its intent to

dismiss Appellant’s petition without a hearing.   See Pa.R.Crim.P. 907(1).

Appellant did not respond, and the court dismissed the petition as untimely

on January 6, 2016. On February 2, 2016, Appellant filed a timely pro se

notice of appeal although the docket and the record indicate that he is still

represented by PCRA counsel.

     “Pursuant to the rules of criminal procedure and interpretive case law,

a criminal defendant has a right to representation of counsel for purposes of

litigating a first PCRA petition through the entire appellate process.”

Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009)

(citations omitted) (emphasis added); see also Pa.R.Crim.P. 904(c). “When

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


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appellate stages, an on-the-record determination should be made that the

waiver is a knowing, intelligent, and voluntary one.”    Commonwealth v.

Grazier, 713 A.2d 81, 82 (Pa. 1998) (citations omitted).

      Here, the record does not reflect that Appellant’s appointed PCRA

counsel was permitted to withdraw from representation. Therefore, it is not

clear why Appellant filed a pro se notice of appeal or pro se brief. Hence, we

remand this matter for the PCRA court to conduct a Grazier hearing to

determine whether Appellant is waiving his right to counsel and, if so,

whether such waiver is “a knowing, intelligent, and voluntary one.”

Grazier, supra at 82; see Robinson, supra at 456 (holding “that in any

case where a defendant seeks self-representation in a PCRA proceeding and

where counsel has not properly withdrawn, a hearing must be held.”). The

PCRA court shall comply with this order within sixty days from the date on

which it is ordered.

      Case remanded for proceedings consistent with this decision.      Panel

jurisdiction retained.




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