J-S82036-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                  Appellee                  :
          v.                                :
                                            :
MAURICE TARON JACKSON,                      :
                                            :
                  Appellant                 :    No. 977 WDA 2017

                  Appeal from the Order Entered May 23, 2017
                   in the Court of Common Pleas of Erie County
               Criminal Division at No(s): CP-25-CR-0003292-2015

BEFORE:        BENDER, P.J.E., STEVENS, P.J.E.,* and STRASSBURGER, J.**

MEMORANDUM BY STRASSBURGER, J.:                        FILED MARCH 6, 2018

      Maurice Taron Jackson (Appellant) appeals pro se from the May 23,

2017 order which denied his motion for reconsideration of an order denying

a motion for reconsideration of sentence nunc pro tunc.       Upon review, we

vacate that order and remand for proceedings consistent with this

memorandum.

      In 2013, Appellant was charged with numerous offenses related to his

role in a drug-trafficking enterprise.          Appellant entered into a plea

agreement, and on March 24, 2016, he was sentenced, consistent with the

agreement, to an aggregate term of four to ten years of incarceration.

Appellant was also to receive credit for time served when he was

incarcerated in Illinois.     On April 4, 2016, Appellant timely filed a post-

sentence motion.      That motion was denied on April 12, 2016.      No direct

appeal was filed.

* Former Justice specially assigned to the Superior Court.
**Retired Senior Judge assigned to the Superior Court.
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      On January 19, 2017, Appellant pro se filed a motion entitled motion

for time credit nunc pro tunc.     No action was taken on that motion.     On

February 21, 2017, Appellant pro se filed a motion entitled motion for

reconsideration nunc pro tunc. On March 1, 2017, the trial court denied that

motion. In March of 2017, Appellant pro se filed a motion entitled motion

for reconsideration of credit. No action was taken on that motion. On May

17, 2017, Appellant pro se filed a motion entitled motion for reconsideration

of sentence nunc pro tunc.     On May 23, 2017, the trial court denied that

motion, and also ordered Appellant “to refrain from filing repeated [m]otions

on the same issues that have already been ruled on.” Order, 5/23/2017.

      On May 30, 2017,1 Appellant pro se filed a notice of appeal from that

order. Appellant also requested in forma pauperis (IFP) status. On June 29,

2017, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement,

granted Appellant’s motion to proceed IFP, and informed Appellant that he

“has a right to assistance of counsel in the preparation of any appeal.     If

[Appellant] cannot afford an attorney, one will be assigned to represent him.

An application can be obtained and filed with the Erie County Public

Defender’s Office.” Order, 6/29/2017. Appellant filed a concise statement,

and the trial court filed an opinion in response.



1The envelope containing the notice of appeal has a postmark date of May
30, 2017. For reasons unclear from the record, that notice of appeal was
not docketed until June 29, 2017.


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       Before we reach the merits of Appellant’s issues, we sua sponte

consider whether Appellant is properly proceeding pro se. We observe that

“all motions filed after a judgment of sentence is final are to be construed as

[Post Conviction Relief Act (PCRA)2] petitions.”3 Commonwealth v. Taylor,

65 A.3d 462, 466 (Pa. Super. 2013). “[W]here an indigent, first-time PCRA

petitioner was denied his right to counsel—or failed to properly waive that

right[4]—this Court is required to raise this error sua sponte and remand for

the PCRA court to correct that mistake.” Commonwealth v. Stossel, 17

A.3d 1286, 1290 (Pa. Super. 2011).

       Instantly, the PCRA court granted Appellant’s petition to proceed IFP,

but did not appoint counsel. “[W]hen an unrepresented defendant satisfies

the judge that the defendant is unable to afford or otherwise procure

counsel, the judge shall appoint counsel to represent the defendant on the

defendant’s first petition for post-conviction collateral relief.” Pa.R.Crim.P.

904(C) (emphasis added).



2   See 42 Pa.C.S. §§ 9541-9546.

3 Here, Appellant’s judgment of sentence became final on May 13, 2016,
when he did not file a direct appeal after the denial of his timely-filed post-
sentence motion. Thus, his January 19, 2017 motion should have been
considered Appellant’s first PCRA petition.

4 The only way a PCRA petitioner can properly waive his right to counsel is
through an on-the-record colloquy conducted pursuant to Commonwealth
v. Grazier, 713 A.2d 81 (Pa. 1998). See Commonwealth v. Robinson,
970 A.2d 455, 459 (Pa. Super. 2009) (en banc).


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      Accordingly, we vacate the May 23, 2017 order and remand this case

to the PCRA court for the appointment of counsel. Counsel shall either file

an amended PCRA petition dating back to the January 17, 2017 motion or

comply with the mandates of Turner/Finley.5 If Appellant indicates at that

point a desire to proceed pro se, the PCRA court shall conduct a Grazier

hearing to ensure Appellant is waiving his right to counsel knowingly,

intelligently, and voluntarily.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 3/6/2018




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

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