J-S25024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

JOHN E. GAERTTNER

                        Appellant                 No. 1178 WDA 2015


                Appeal from the PCRA Order May 18, 2015
               In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0001418-2013
                                       CP-25-CR-0001518-2013
                                       CP-25-CR-0002301-2013


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                             FILED MAY 23, 2016

     Appellant, John E. Gaerttner, appeals pro se from the May 18, 2015

order dismissing, without a hearing, his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.       After careful

review, we are compelled to vacate the PCRA order and remand for further

proceedings.

     We summarize the pertinent procedural history of this case as follows.

On January 8, 2014, Appellant entered guilty pleas pursuant to a plea

agreement at three dockets, to wit, driving while operating privilege is

suspended (DUI related) at CP-25-CR-0001418-2013, criminal mischief at

CP-25-CR-0001518-2013, and conspiracy to commit theft at CP-25-CR-
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0002301-2013.1 The plea agreement indicated that amounts for restitution

claimed at dockets CR-1518-2013 and CR-2301-2013 would be determined

at a restitution hearing.         The sentencing and restitution hearings were

scheduled for March 26, 2014.             N.T., 1/8/14, at 13-14.   On that day,

Appellant failed to appear and the trial court proceeded to sentence

Appellant in abstentia.       N.T., 3/26/14, at 4.    The trial court imposed an

aggregate judgment of sentence of 30 to 60 months’ incarceration. The trial

court also received the Commonwealth’s evidence in support of restitution

and the trial court imposed an obligation for Appellant to pay restitution of

$10,400.00 at CR-1518-2013, and $1,500.00 at CR-2301-2013. Appellant

filed a motion for reconsideration of sentence on April 7, 2014, which the

trial court denied on April 10, 2014.2 Appellant did not file a direct appeal.

       On January 16, 2015, Appellant filed a timely first pro se PCRA

petition.    On January 23, 2015, the PCRA court appointed William J.

Hathaway, Esquire, to represent Appellant.         On March 23, 2015, Attorney

Hathaway filed a document titled “Supplement to Motion for Post Conviction

Relief.”    Therein, Attorney Hathaway included a section titled “Partial

Statement of No-Merit” and a section titled “Supplemental Statement in

____________________________________________
1
 75 Pa.C.S.A. §1543(b)(1)(1.1)(i), Millcreek Township Ordinance §92-36(1),
18 Pa.C.S.A. §§ 3304(a)(5), and 903, respectively.
2
 The 10th day following the judgment of sentence, April 5, 2014, fell on a
Saturday. Accordingly, Appellant’s post-sentence motion was timely filed on
Monday, April 7, 2014. See 1 Pa.C.S.A. § 1908.


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Support of Claim Possessed of Arguable Merit.”       Supplement to Motion for

Post Conviction Relief, 3/23/15, at 4, 5 (pagination added). Attorney

Hathaway did not file a motion to withdraw. On April 16, 2015, the PCRA

court filed a notice of its intent to dismiss Appellant’s PCRA petition without a

hearing pursuant to Pennsylvania Rule of Criminal Procedure 907(1). A final

order dismissing Appellant’s PCRA petition was entered on May 18, 2015.

       Appellant filed a pro se notice of appeal on June 5, 2015.3 The PCRA

court did not require Appellant to file a concise statement of errors

complained of on appeal under Pennsylvania Rule of Appellate Procedure

1925(b). The PCRA court filed a statement in compliance with Rule 1925(a)

wherein it referenced its April 16, 2015 notice of intent to dismiss as

containing the reasons for its decision.         Counsel has not entered an

appearance with this Court and Appellant has filed a pro se brief in support

of his appeal.

       This Court has long held that “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), appeal denied, 842 A.2d 406

____________________________________________
3
  The record does not evidence compliance by the clerk of courts with
Pennsylvania Rule of Criminal Procedure 576(A)(4), which requires the clerk
of courts to time stamp any pro se filing by a represented defendant and
forward a copy of the same to defendant’s attorney and the attorney for the
Commonwealth. See Pa.R.Crim.P. 576(A)(4). Instantly, Appellant’s pro se
notice of appeal was time-stamped but not forwarded to Attorney Hathaway.


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(Pa. 2003). Appellant also is “entitled to a counseled amended petition and

representation before the PCRA court.”           Commonwealth v. Figueroa, 29

A.3d 1177, 1182 (Pa. Super. 2011), appeal denied, 46 A.3d 715. Further,

“where an indigent, first-time PCRA petitioner was denied his right to

counsel—or failed to properly waive that right—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).    “[I]n any case where a defendant seeks self-representation in a

PCRA proceeding and where counsel has not properly withdrawn, a

[Grazier4] hearing must be held.” Robinson, supra at 456.

       Given the ambiguous and contradictory nature of PCRA counsel’s

March 23, 2015 “Supplement to Motion for Post Conviction Relief,” it is

unclear whether it was counsel’s intention to withdraw or to file an amended

PCRA petition. Because this raises a question of whether Appellant received

“a counseled amended petition and representation before the PCRA court,”

we conclude it is prudent to vacate the May 18, 2015 PCRA dismissal order

and remand for further proceedings. See Figueroa, supra.

       Upon remand, the PCRA court shall ascertain the status of Appellant’s

representation. If Appellant expresses a desire to waive his right to counsel

and proceed pro se, the PCRA court shall conduct a Grazier hearing. See
____________________________________________
4
  Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988) (prescribing the
appropriate procedure and colloquy necessary to determine if a defendant’s
choice to proceed pro se is intelligent, knowing, and voluntary).


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Pa.R.Crim.P. 121(A).   If the Grazier waiver standards are met, the PCRA

court shall permit Appellant to proceed pro se. If Appellant does not express

a desire to waive his right to counsel, or the Grazier waiver standards are

not met, the PCRA court shall ascertain what the intentions of PCRA counsel

were when filing his March 23, 2015, partial no-merit letter. The PCRA court

will then ensure that either a proper amended PCRA petition, or a no-merit

letter and petition to withdraw, in compliance with Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc) and their progeny, is filed. The PCRA court

shall then conduct a hearing, or issue a new Rule 907(1) notice of intent,

and proceed accordingly.

      For all the foregoing reasons, we vacate the PCRA court’s May 18,

2015 order and remand for further proceedings consistent with this

memorandum.

      Order vacated.       Case remanded with instructions.      Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2016



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