J-S26030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellee              :
                                          :
              v.                          :
                                          :
 RAYMOND MCLAUGHLIN                       :
                                          :
                    Appellant             :        No. 2770 EDA 2018

          Appeal from the PCRA Order Entered September 11, 2018
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0006564-2007


BEFORE:    PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.

JUDGMENT ORDER BY GANTMAN, P.J.E.:                     FILED JUNE 17, 2019

      Appellant, Raymond McLaughlin, appeals pro se from the order entered

in the Philadelphia County Court of Common Pleas, which dismissed as

untimely his first petition filed under the Post Conviction Relief Act (“PCRA”),

at 42 Pa.C.S.A. §§ 9541-9546.        On May 8, 2008, Appellant entered a

negotiated guilty plea to attempted murder, burglary, recklessly endangering

another person, and kidnapping; and the court imposed the negotiated

aggregate sentence of 15 to 30 years’ imprisonment, concurrent to a federal

sentence Appellant was serving. Appellant did not file a direct appeal.

      On December 6, 2017, Appellant filed a counseled first PCRA petition,

claiming his federal sentence had recently been reduced due to a change in

federal law, and seeking to reduce his state sentence based on the belief that

his federal and state sentences were to run “totally concurrent.” The court


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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issued appropriate notice per Pa.R.Crim.P. 907 on August 10, 2018. Appellant

filed a counseled response on August 15, 2018. On September 11, 2018, the

court dismissed the petition as untimely and let counsel withdraw. Appellant

timely filed a pro se notice of appeal on September 22, 2018. The court did

not order, and Appellant did not file, a Pa.R.A.P. 1925(b) statement.

      Preliminarily: “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) (en banc).

         While the right to legal representation in the PCRA context
         is not constitutionally derived, the importance of that right
         cannot be diminished merely due to its rule-based
         derivation. In the post-conviction setting, the defendant
         normally is seeking redress for trial counsel’s errors and
         omissions. Given the current time constraints of [the
         PCRA], a defendant’s first PCRA petition, where the rule-
         based right to counsel unconditionally attaches, may well be
         the defendant’s sole opportunity to seek redress for such
         errors and omissions. Without the input of an attorney,
         important rights and defenses may be forever lost.

Id. at 458-59.     See also Pa.R.Crim.P. 904(C), (F)(2) (stating indigent

defendant is entitled to counsel for litigation of first PCRA petition, including

on appeal); Commonwealth v. Williams, 167 A.3d 1 (Pa.Super. 2017)

(vacating and remanding where appellant did not receive appointment of

counsel through all stages of litigating first PCRA petition).      Importantly,

“[a]n indigent petitioner is entitled to appointment of counsel on his first PCRA


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petition,   even    where     the    petition    appears    untimely   on   its   face.”

Commonwealth v. Perez, 799 A.2d 848, 851 (Pa.Super. 2002).

       Instantly, Appellant retained private PCRA counsel, who represented

Appellant before the PCRA court. When the court dismissed the petition as

untimely, it allowed counsel to withdraw. Appellant claims he could not afford

to pay for counsel’s services on appeal.           The record confirms Appellant is

indigent.     As this is Appellant’s first PCRA petition, he is entitled to

appointment of counsel for appeal.               See Pa.R.Crim.P. 904(C), (F)(2);

Robinson,      supra;     Williams,      supra;    Perez,    supra.     Under     these

circumstances, the best resolution is to vacate and remand for the court to

conduct a full Grazier1 hearing. If the court is convinced Appellant wants to

proceed pro se on appeal, then the court can reinstate its PCRA order; and

Appellant can file a notice of appeal. If Appellant does not want to proceed

pro se or fails to show a valid waiver of counsel, then the court shall appoint

counsel for the appeal and reinstate its PCRA order; and Appellant can proceed

with a counseled appeal.         See Robinson, supra (vacating order denying

PCRA relief, remanding for Grazier hearing, and relinquishing jurisdiction;

stating once appropriate proceedings are conducted, order denying PCRA relief

can be reinstated, and appellant or counsel can appeal).

       Order vacated; case remanded. Jurisdiction is relinquished.



____________________________________________


1   Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/17/19




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