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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

XAVIER JASON PAGAN

                         Appellant                 No. 1083 MDA 2014


                Appeal from the PCRA Order of June 16, 2014
               In the Court of Common Pleas of Berks County
              Criminal Division at No.: CP-06-CR-0004619-2012


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                           FILED MARCH 09, 2015

     Xavier Pagan appeals pro se the June 16, 2014 order dismissing his

petition for relief pursuant to the Post-Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-46, without an evidentiary hearing.      Because the PCRA

court compelled Pagan to proceed with appointed counsel, despite Pagan’s

request to represent himself, without first holding a hearing pursuant to

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), we vacate the PCRA

court’s order, and remand for a Grazier hearing and any subsequent PCRA

proceedings that become necessary following the hearing.

     On January 28, 2013, Pagan pleaded guilty to two counts each of

aggravated assault and criminal conspiracy to commit aggravated assault,

and one count each of simple assault, criminal conspiracy to commit criminal

homicide, criminal conspiracy to commit simple assault, and intimidation of a
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witness.1 Pursuant to a plea agreement with the Commonwealth, Pagan was

sentenced to an aggregate term of thirteen to forty years’ incarceration.

Pagan did not file a direct appeal.

       On August 29, 2013, Pagan filed a “Motion to Proceed Pro Se.”

Therein, Pagan petitioned the PCRA court to permit him to represent himself

and to file a pro se PCRA petition without the assistance of counsel. Pagan

also asked the PCRA court to conduct a Grazier hearing. On September 5,

2013, the PCRA court treated Pagan’s motion as a PCRA petition, denied

Pagan’s requests to proceed pro se and to conduct a Grazier hearing, and

appointed counsel to represent Pagan.            Counsel filed three petitions for

extension of time to file an amended PCRA petition. On April 2, 2014, before

counsel filed anything on Pagan’s behalf, Pagan filed a standard prison PCRA

form requesting PCRA relief, and again expressed his desire to represent

himself.    Once again, Pagan requested that the PCRA court conduct a

Grazier hearing.        For the second time, the PCRA court denied Pagan’s

request.     The PCRA court reasoned that Pagan’s PCRA petition did not

contain any meritorious issues, and that Pagan needed counsel to assist him

in ascertaining whether any such issues existed.

       On May 1, 2014, counsel filed a “no-merit” letter and a petition to

withdraw as counsel.2 On May 13, 2014, the PCRA court notified Pagan of

____________________________________________


1
      The facts underlying Pagan’s guilty plea are immaterial to the
disposition of this case. As such, we need not recite them here.



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its intention to dismiss his PCRA petition without a hearing pursuant to

Pa.R.Crim.P. 907.         In the written notice, the PCRA court also granted

counsel’s petition to withdraw as counsel.        Pagan did not respond to the

PCRA court’s Rule 907 notice. On June 16, 2014, the PCRA court formally

dismissed Pagan’s petition.

      On June 26, 2014, Pagan filed a notice of appeal.       In response, the

PCRA court directed Pagan to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b). On July 21, 2014, Pagan filed a

timely concise statement.          On July 28, 2014, the PCRA court issued an

opinion pursuant to Pa.R.A.P. 1925(a). Therein, the PCRA court summarily

addressed Pagan’s multiple requests for a Grazier hearing as follows:

      [Pagan] first alleges that [the PCRA court] erred by failing to
      allow him to waive counsel and proceed pro se. Because PCRA
      counsel’s request to withdraw has been granted and [Pagan] is
      currently proceeding pro se, this issue is moot. Moreover,
      permitting a well-respected, court-appointed attorney to conduct
      an independent review of the record in no way prejudiced
      [Pagan].    As demonstrated by the self-serving and mostly
      irrelevant allegations of error contained in his Concise
      Statement, [Pagan] is incapable of effectively representing
      himself. As a result, this claim is without merit.

PCRA Court Opinion (“P.C.O.”), 7/28/2014, at 3.




                       _______________________
(Footnote Continued)
2
    See Commonwealth v. Turner, 544 A.2d 927                      (Pa.   1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).




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      Pagan raises six issues for our review in his brief. See Brief for Pagan

at 4. However, because we remand for a Grazier hearing, we address only

his first listed issue: “Did the [PCRA] court abuse its discretion and in doing

so, violate Pa.R.Crim.P. 904, by disregarding [Pagan’s] numerous requests

to proceed pro se in his pursuit for [PCRA] relief?” Id.

      A PCRA petitioner/appellant has a rule-based right to counsel during

the   proceedings,   at   all   levels,   disposing   of   a   first   PCRA   petition.

Commonwealth v. Figueroa, 29 A.3d 1177, 1180 n.6 (Pa. Super. 2011);

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

(“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.”);

Pa.R.Crim.P. 904.    Pursuant to Grazier, “[w]hen a 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 knowing,

intelligent, and voluntary one.” Grazier, 713 A.2d at 82 (emphasis added).

A Grazier hearing is required before we may adjudicate an appeal even

when it is clear from the record that a particular appellant “clearly and

unequivocally indicates a desire to represent himself,” Robinson, 970 A.2d

at 459-60, and even when neither of the parties challenges the lack of a

hearing. See Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super.

2011) (“Thus, we hold that where an indigent, first-time PCRA petitioner was

denied his right to counsel—or failed to properly waive that right—this Court

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is required to raise this error sua sponte and remand to the PCRA to correct

that mistake.”).

      Our case law is now abundantly clear that a Grazier hearing is

required any time that a PCRA petitioner seeks to represent himself.        See

Stossel, 17 A.3d at 1290. In Robinson, we explained the importance of

holding a Grazier hearing in the PCRA context as follows:

      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 42 Pa.C.S. § 9545, 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.

      In Commonwealth v. Meehan, 628 A.2d 1151 (Pa. Super.
      1993), which was specifically cited with approval in our Supreme
      Court’s pronouncement in Grazier, we addressed whether the
      defendant had validly waived his rule-based right to counsel for
      purposes of a PCRA hearing. The defendant therein complained
      that he did not actually waive his right to counsel because the
      waiver colloquy was inadequate in that it did not conform to the
      requirements of Pa.R.Crim.P. 121, formerly Pa.R.Crim.P. 318,
      waiver of counsel.

      That rule indicates that if a defendant seeks to waive his right to
      counsel, six areas of inquiry must be explored and explained to
      the defendant to “ensure that the defendant’s waiver of the right
      to counsel is knowing, voluntary, and intelligent[.]” Pa.R.Crim.P.
      121(A)(2). In Meehan, we noted that some of the precepts
      regarding waiver of counsel in the trial setting were inapplicable
      in the PCRA area.        We did hold, however, that if a post-
      conviction waiver of counsel is requested by the defendant, the
      PCRA court must ascertain that “the defendant understands: (1)
      his right to be represented by counsel; (2) that if he waived this
      right, he will still be bound by all normal procedural rules; and


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     (3) that many rights and potential claims may be permanently
     lost if not timely asserted.”          Id. at 1157; see also
     Commonwealth v. Powell, 787 A.2d 1017, 1019 (Pa. Super.
     2001). While we concluded that the colloquy conducted therein
     was sufficient, that case clearly indicates four of the six areas of
     inquiry contained in Rule 121 apply in the PCRA context.

     Pa.R.Crim.P. Rule 121(A)(2) provides:

        (2) To ensure that the defendant’ s waiver of the right to
        counsel is knowing, voluntary, and intelligent, the judge or
        issuing authority, at a minimum, shall elicit the following
        information from the defendant:

           (a) that the defendant understands that he or she
           has the right to be represented by counsel, and the
           right to have free counsel appointed if the defendant
           is indigent;

           (b) that the defendant understands the nature of the
           charges against the defendant and the elements of
           each of those charges;

           (c) that the defendant is aware of the permissible
           range of sentences and/or fines for the offenses
           charged;

           (d) that the defendant understands that if he or she
           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;

           (e) that the defendant understands that there are
           possible defenses to these charges that counsel
           might be aware of, and if these defenses are not
           raised at trial, they may be lost permanently; and

           (f) 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.

     Subsections (b) and (c) are not relevant in the PCRA setting;
     however, the remainder of concepts examined in Rule 121
     clearly impact on whether a defendant understands the full

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     import of his decision to act as his own counsel. Therefore, in
     accordance with Meehan and as required by [Commonwealth
     v.] Davido, [868 A.2d 431 (Pa. 2005) (finding that it is up to
     the trial court to ensure that a proper colloquy is performed
     where a defendant has invoked his right to self-representation),]
     we conclude that if a PCRA defendant indicates a desire to
     represent himself, it is incumbent upon the PCRA court to
     elicit information from the defendant that he understands
     the items outlined in Pa.R.Crim.P. 121(A)(2)(a), (d), (e),
     and (f). A court must explain to a defendant that he has the
     right to counsel, in accordance with (a), that he is bound by the
     rules as outlined in (d), and that he may lose rights, as indicated
     in (f). Subsection (e) must be appropriately tailored so that a
     defendant is informed that “there are possible defenses to these
     charges that counsel might be aware of, and if these defenses
     are not raised [in a PCRA petition], they may be lost
     permanently.”

Robinson, 970 A.2d at 458-60 (citations modified; emphasis added).

     Herein, the PCRA court plainly erred by denying Pagan’s repeated

requests for a Grazier hearing.    As Robinson makes clear, a PCRA court

does not have the discretion to choose whether or not to hold a Grazier

hearing.   To the contrary, upon request, a PCRA court must conduct the

hearing in accordance with the procedure outlined above in Robinson.

     Notably, the decision to hold a Grazier hearing or to permit a first-

time PCRA petitioner to represent himself does not include a PCRA court’s

evaluation of the strength or weakness of the claims raised by the PCRA

petitioner. Nor does the court’s obligation encompass an evaluation of the

likelihood of success of the petition or of the quality of self-representation

performed by the petitioner leading up to the Grazier hearing.        Finally,

neither Robinson, Grazier, or Rule 121 empowers the PCRA court to



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consider whether the pro se petitioner would suffer prejudice if represented

by counsel. The PCRA court may believe that having counsel is in the best

interests of the petitioner; however, the decision does not lie with the court.

The PCRA court must conduct the colloquy, and decide only if the petitioner

is making a knowing, voluntary, and intelligent decision to represent himself.

If the court believes that the petitioner’s decision meets that standard, the

court may not stand in the way of the petitioner’s desires, no matter the

potential prejudice that may befall the petitioner or how much the court

believes the decision not to be in the petitioner’s best interests.

      The Commonwealth has candidly conceded that the PCRA court erred

when it declined repeatedly to hold a Grazier hearing.        See Brief for the

Commonwealth at 9. For the preceding reasons, we agree with Pagan and

the Commonwealth that the trial court was required to hold a Grazier

hearing, but inexplicably failed to do so. Consequently, we vacate the PCRA

court’s June 16, 2014 order dismissing Pagan’s PCRA petition. We remand

with instructions to the PCRA court to conduct the Grazier hearing, and to

proceed accordingly based upon the outcome of that hearing. Because the

proceedings on remand likely will change the content and character of this

appeal substantially, requiring the issuance of new orders and opinions, we

relinquish our jurisdiction over this appeal.    See Robinson, 970 A.2d at

460; Stossel, 17 A.3d at 1291.




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     Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2015




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