J-S66020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EDWIN DOLORES QUILES                       :
                                               :
                       Appellant               :   No. 928 EDA 2019

           Appeal from the PCRA Order Entered September 26, 2018
    In the Court of Common Pleas of Pike County Criminal Division at No(s):
                           CP-52-CR-0000531-2013

BEFORE: STABILE, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                            FILED JANUARY 10, 2020

        Appellant Edwin Dolores Quiles appeals pro se from the order dismissing

his first timely Post Conviction Relief Act1 (PCRA) petition. We remand this

case for the PCRA court to conduct a hearing pursuant to Commonwealth v.

Grazier, 713 A.2d 81 (Pa. 1998), because the record does not reflect that the

PCRA court granted PCRA counsel, Ashley Zimmerman, Esq., permission to

withdraw.

        This Court set forth the factual history of this case as follows:

        On October 24, 2013, Appellant and his co-defendant pulled into
        a gas station in Pike County, Pennsylvania. Appellant went into
        the gas station, while his co-defendant made a pre-arranged sale
        of heroin to an undercover member of the Pike County Detective’s
        Office. Following the controlled buy, Police Officer Joseph Ostrom
        entered the gas station and placed Appellant under arrest, while
        other officers took his co-defendant into custody.
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1   42 Pa.C.S. §§ 9541-9546.
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      Officers transported Appellant to the Pike County Detective
      Bureau Office, where Chief Detective Michael Jones and Officer
      Ostrom interviewed Appellant. At the beginning of the interview,
      which was conducted in English, Chief Detective Jones advised
      Appellant of his rights pursuant to Miranda.           Appellant
      acknowledged his rights, signed a written waiver of those rights,
      and spoke with Chief Detective Jones and Officer Ostrom.
      Appellant also signed written consent forms for the search of his
      automobile and his cellular phone.

      Appellant was arrested and charged with two counts of delivery of
      a controlled substance, one count of criminal conspiracy to deliver
      a controlled substance, and related possession charges. Appellant
      filed a motion to suppress, seeking to suppress statements he
      gave to investigators and the evidence the investigators recovered
      in his phone and car on the grounds that he did not sufficiently
      understand English and was under the influence of heroin at the
      time he waived his rights and consented to the search.

      The trial court held a hearing on the motion, at which Chief
      Detective Jones, Officer Ostrom, and Appellant testified. The trial
      court denied the motion.

      Appellant proceeded to a jury trial, and the jury convicted him of
      two counts of delivery of a controlled substance, and one count of
      criminal conspiracy to deliver a controlled substance.

      On March 12, 2015, the trial court sentenced Appellant to an
      aggregate term of nine to thirty years of imprisonment.

Commonwealth v. Quiles, 166 A.3d 387, 389 (Pa. Super. 2017) (footnote

and some formatting altered).

      Appellant timely appealed, and this Court, on June 23, 2017, affirmed

Appellant’s convictions but vacated his judgment of sentence and remanded

for resentencing and for determination of his Recidivism Risk Reduction

Incentive (RRRI) eligibility. Id. at 395. The trial court resentenced Appellant

on February 8, 2018, to an aggregate sentence of nine to thirty years’

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imprisonment and found Appellant was eligible for a RRRI sentence of eighty-

one months.

       On February 20, 2018, Appellant filed a pro se PCRA petition. The PCRA

court appointed Lindsay Collins, Esq., as PCRA counsel. Attorney Collins filed

a motion to withdraw, which the PCRA court granted on April 9, 2018. That

same day, the PCRA court appointed Attorney Zimmerman as Appellant’s new

PCRA counsel. On May 7, 2018, Attorney Zimmerman filed an amended PCRA

petition.

       On May 15, 2018, the trial court, sua sponte, issued an amended

sentencing order that reiterated the nine to thirty year aggregate sentence of

imprisonment but stated that Appellant was eligible for an RRRI minimum

sentence of ninety months. Order, 5/5/18. The order was served on, among

others, Attorney Zimmerman. None of the parties challenged the trial court’s

authority to issue an amended sentencing order.

       The PCRA court held an evidentiary hearing on August 31, 2018.2 On

September 26, 2018, the PCRA court denied Appellant’s PCRA petition. On


____________________________________________


2 The transcript of the evidentiary hearing was not transmitted to this Court
as part of the certified record. We remind the parties that they “have a duty
to take steps necessary to assure that the appellate court has a complete
record on appeal, so that the appellate court has the materials necessary to
review the issues raised on appeal. Ultimate responsibility for a complete
record rests with the party raising an issue” on appeal. Pa.R.A.P. 1921 cmt.
Upon informal inquiry with the PCRA court, the PCRA court advised this Court
that it did not possess the transcript. The PCRA court is directed to transcribe



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October 15, 2018, the PCRA court timestamped Appellant’s pro se notice of

appeal. Unfortunately, the PCRA court did not docket Appellant’s pro se notice

of appeal. As a result, Appellant filed a second pro se notice of appeal, which

the PCRA court docketed on March 11, 2019. On April 9, 2019, the PCRA court

issued an order instructing Appellant to comply with Pa.R.A.P. 1925(b), which

the PCRA court served on Appellant, but not Attorney Zimmerman. Appellant

timely filed his pro se Rule 1925(b) statement.

        On June 20, 2019, this Court issued a rule to show cause why Appellant’s

appeal should not be quashed due to an apparent untimely appeal from the

PCRA court’s September 26, 2018 order. Appellant filed a response enclosing

his pro se October 2018 notice of appeal, but did not enclose any proof of

mailing. As a result, this Court quashed Appellant’s appeal on September 20,

2019.

        On October 7, 2019, Appellant filed a pro se application for

reconsideration of this Court’s September 20, 2019 order.            Appellant’s

application attached proof of mailing of his October 2018 notice of appeal.

Meanwhile, the PCRA court also transmitted a supplemental record to this

Court on August 20, 2019, enclosing Appellant’s timestamped October 2018

notice of appeal, which the PCRA court stated was inadvertently omitted from



____________________________________________


and send the transcript of the August 31, 2018 PCRA evidentiary hearing to
this Court within forty-five days.


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the docket. As a result, on October 11, 2019, this Court vacated its quashal

and reinstated Appellant’s appeal as timely filed on October 15, 2018.

Appellant filed a pro se appellate brief with this Court, and the Commonwealth

filed a responsive brief.

       Initially, “Pennsylvania courts have recognized expressly that every

post-conviction litigant is entitled to at least one meaningful opportunity to

have issues reviewed, at least in the context of an ineffectiveness claim.”

Commonwealth v. Karanicolas, 836 A.2d 940, 945 (Pa. Super. 2003)

(citation and some formatting omitted). Therefore, for the petitioner’s first

PCRA petition, the Rules of Criminal Procedure and our case law require a full

colloquy prior to allowing a petitioner to proceed pro se if counsel has not filed

a Turner/Finley3 letter and petition to withdraw. See Pa.R.Crim.P. 121(A);

Grazier, 713 A.2d at 82; Commonwealth v. Robinson, 970 A.2d 455, 460

(Pa. Super. 2009) (en banc) (“a colloquy [under Pa.R.Crim.P. 121(A)] must

be held by the PCRA court of its own accord . . . once the defendant has

expressed a desire to proceed pro se as long as PCRA counsel has not properly

withdrawn by complying with the dictates of Turner/Finley”).            “When a

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




____________________________________________


3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


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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.

      Because the record (1) does not reflect Attorney Zimmerman filed a

motion to withdraw before the PCRA court or this Court, and (2) does not

include a transcript of a Grazier hearing, we remand to the PCRA court for a

Grazier hearing as to whether Appellant’s decision to proceed pro se in this

appeal is knowing, intelligent, and voluntary. The PCRA court shall hold the

Grazier hearing and enter its decision within forty-five days of the date of this

decision. Should Appellant not wish to proceed pro se, the PCRA court may

permit Attorney Zimmerman to represent Appellant on appeal, or appoint new

PCRA counsel. The PCRA court must also send the transcript of the August

31, 2018 PCRA evidentiary hearing to this Court within forty-five days.

      Case remanded for further proceedings in accordance with this

memorandum. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/20




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