J-A14039-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                Appellee                  :
                                          :
                    v.                    :
                                          :
STEPHEN E. JILES,                         :
                                          :
                Appellant                 :   No. 1641 MDA 2014


             Appeal from the PCRA Order Entered August 28, 2014,
                  in the Court of Common Pleas of York County,
    Criminal Division, at Nos.: CP-67-CR-0002718-2009; CP-67-CR-0002719-
           2009; CP-67-CR-0002745-2010; CP-67-CR-0003039-2009

BEFORE:      BENDER, P.J.E., JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                 FILED AUGUST 17, 2015

       Stephen E. Jiles (Appellant) appeals pro se from the order entered

August 28, 2014,1 which denied his “Motion to Re-Instate Appeal Rights or,

in the Alternative, to Have Docketed Notice of Appeal Processed by the Clerk

of Courts.” For the reasons that follow, we vacate the court’s order denying

Appellant’s motion and remand for further proceedings consistent with this

memorandum.


1
  This order was dated August 26, 2014, docketed August 27, 2014, and
sent to the parties on August 28, 2014. We observe that “‘[i]n a criminal
case, the date of entry of an order is the date the clerk of courts enters the
order on the docket, furnishes a copy of the order to the parties, and records
the time … of notice on the docket.’” Commonwealth v. Parks, 768 A.2d
1168,    1171    (Pa.    Super.    2001)     (emphasis     omitted)   (quoting
Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000); see
also Pa.R.Crim.P. 114. Many of the orders in this case were signed,
docketed, and served on different dates. Going forward, we will refer to the
date appearing on the particular filing for ease of discussion.

*Retired Senior Judge assigned to the Superior Court.
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        Following his convictions for numerous counts of robbery and other

related offenses at the above docket numbers, Appellant was sentenced to

an aggregate term of nine to twenty-one years’ imprisonment.                In a

consolidated appeal, this Court affirmed Appellant’s judgment of sentence on

April 4, 2012.    Commonwealth v. Jiles, 48 A.3d 469 (Pa. Super. 2012)

(unpublished memorandum).

        On January 4, 2013, Appellant pro se timely filed a petition pursuant

to the Post Conviction Relief Act (PCRA),2 raising, inter alia, a claim that

counsel was ineffective for failing to file a petition for allowance of appeal to

the Supreme Court of Pennsylvania from this Court’s affirmance of his

judgment of sentence. The PCRA court appointed John Hamme, Esquire, as

counsel.    On April 24, 2013, following a hearing, the PCRA court granted

Appellant’s petition with respect to that claim and reinstated Appellant’s

right to file a petition for allowance of appeal nunc pro tunc. The PCRA court

denied the petition in all other respects.

        On May 16, 2013, Appellant filed a counseled notice of appeal to this

Court from the PCRA court’s April 24, 2013 order.           On May 23, 2013,

Appellant filed a counseled petition for allowance of appeal to our Supreme

Court, which was denied on October 2, 2013. Commonwealth v. Jiles, 76

A.3d 539 (Pa. 2013).      On March 5, 2014, Appellant pro se filed another

2
    42 Pa.C.S. §§ 9541-9546.



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PCRA petition.   Appellant also requested the appointment of counsel.       On

April 15, 2014, this Court affirmed the PCRA court’s April 24, 2013 order. 3,4

Commonwealth v. Jiles, 102 A.3d 533 (Pa. Super. 2014).             On May 1,

2014, the PCRA court appointed William Graff, Esquire, to represent

Appellant for purposes of his March 5, 2014 PCRA petition.

      On June 26, 2014, the PCRA court held a hearing on Appellant’s

petition. At the hearing, Attorney Graff presented two issues to the PCRA

court, but rather than advocate for his client, Attorney Graff essentially

informed the PCRA court that the issues did not warrant relief.           N.T.,

6/26/2014, at 2-7.      Following the hearing, the PCRA court dismissed

Appellant’s PCRA petition.

       Notwithstanding the procedural irregularities already outlined above,

at this point, the procedural posture of this case begins to fall into complete

disarray.   A review of the record clearly reveals that Appellant sought to

appeal the dismissal of his March 5, 2014 petition, but the clerk of courts

3
  This Court also granted Attorney Hamme’s application to withdraw.
Commonwealth v. Jiles, 102 A.3d 533 (Pa. Super. 2014).
4
  The appeal from the portions of the April 24, 2013 order denying relief
should not have proceeded because that order also granted Appellant the
right to file a petition for allowance of appeal nunc pro tunc.        See
Commonwealth v. O’Neil, 573 A.2d 1112, 1116 (Pa. Super. 1990)
(quashing the appeal because “a [PCRA] petition filed while a defendant’s
direct appeal remains pending is premature”). However, by the time the
appeal was decided by this Court, the petition for allowance of appeal had
been denied. Apparently, the panel believed that in the interest of judicial
economy, the appeal should be entertained.


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and PCRA court failed to handle appropriately his pro se filings evidencing

that fact,5 and his appointed counsel failed to act altogether. As a result,

Appellant was denied his right to appeal the PCRA court’s June 26, 2014

order dismissing his petition.

      Appellant then filed his “Motion to Re-Instate Appeal Rights or, in the

Alternative, to Have Docketed Notice of Appeal Processed by the Clerk of

Courts” on August 20, 2014. On August 28, 2014, the PCRA court denied

Appellant’s motion. This appeal followed.

      Appellant presents the following issues for our consideration:

      [1.] Whether [A]ppellant was denied his right to appeal the
      dismissal of his PCRA petition when his pro se notice of appeal
      and related documents were not processed by the clerk of courts
      after appointed counsel did not respond to the notice that the
      appeal had been filed?

      [2.] Did the [PCRA] court commit error by not re-instating
      [A]ppellant’s right to appeal the dismissal of his PCRA petition
      when the filing of the notice of appeal evidenced a clear and
5
  These filings included a July 17, 2014 pro se notice of appeal and a July 28,
2014 request to proceed pro se on appeal. According to the PCRA court, the
clerk of courts, inter alia, docketed Appellant’s pro se notice of appeal, but it
was not processed to this Court until September 25, 2014. PCRA Court
Opinion, 12/8/2014, at 5. With respect to Appellant’s request to proceed
pro se on appeal, the PCRA court explained that it sent a letter informing
Appellant that because he was represented by counsel, the PCRA could not
take any further action regarding his request, but it would forward the
request to counsel.       Id. at 4.    We note that in Commonwealth v.
Robinson, 970 A.2d 455 (Pa. Super. 2009), this Court held that “in any
case where a defendant seeks self-representation in a PCRA proceeding and
where counsel has not properly withdrawn, a hearing [pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998)] must be held.”
Robinson, 970 A.2d at 456.



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      obvious intent and desire to appeal said decision and was
      appointed counsel, William H. Graff, Jr., ineffective for not taking
      the appropriate steps to further such appeal?

      [3.] Whether trial counsel, Kevin Hoffman, rendered ineffective
      assistance by failing to move for dismissal of case No. CP-67-CR-
      2745-2010, based on a denial of due process and prosecutorial
      misconduct?

      [4.] Whether trial counsel, Kevin Hoffman, was ineffective for
      offering erroneous advice with regard to accepting or rejecting a
      plea offered by the Commonwealth that was significantly less
      onerous than the prison time imposed following trial?

      [5.] Whether [A]ppellant was subjected to structural error when
      a judge who decided pre-trial motions was involved in an
      intimate relationship with the assistant district attorney who
      prepared and submitted said motions resulting in a denial of due
      process?

      [6.] Whether trial and direct appeal counsel, Kevin Hoffman,
      was ineffective for failing to file an application for relief in the
      appellate court when he discovered that Judge Kelley was
      intimately involved with the assistant district attorney who
      prepared and submitted several pre-trial motions decided by
      Judge Kelley?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      Preliminarily, we observe that the PCRA court characterizes Appellant’s

March 5, 2014 PCRA petition as his second, while Appellant characterizes

that petition as his first.    We agree with Appellant.        “This Court has

explained that when a PCRA petitioner’s direct appeal rights are reinstated

nunc pro tunc in his first PCRA petition, a subsequent PCRA petition will be

considered a first PCRA petition for timeliness purposes.” Commonwealth

v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 2013). Because the PCRA court



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reinstated Appellant’s right to file a petition for allowance of appeal with our

Supreme Court in connection to his PCRA petition filed January 4, 2013,

Appellant’s judgment of sentence was not final until 90 days after our

Supreme Court denied it, and his March 5, 2014 PCRA petition was his first

collateral attack on that judgment of sentence.

      Rule 904 of the Rules of Criminal Procedure requires the appointment

of counsel for an indigent petitioner on his or her first PCRA petition.

Pa.R.Crim.P. 904(C). In this regard, this Court has stated as follows:

            An indigent petitioner is entitled to representation by
      counsel for a first petition filed under the PCRA. This right to
      representation     exists    throughout     the   post-conviction
      proceedings, including any appeal from disposition of the petition
      for post-conviction relief. Once counsel has entered an
      appearance on a defendant’s behalf, counsel is obligated to
      continue representation until the case is concluded or counsel is
      granted leave by the court to withdraw his appearance.

Commonwealth v. Brown, 836 A.2d 997, 998-99 (Pa. Super. 2003)

(citations and internal quotation marks omitted); see also Commonwealth

v. Peterson, 683 A.2d 908, 911 (Pa. Super. 1996) (holding that a PCRA

petitioner is entitled to counsel for his first PCRA petition, regardless of the

merits of his claims).

            Moreover, [t]his rule [has not been] limited to the mere
      naming of an attorney to represent an accused, but also
      envisions that counsel so appointed shall have the opportunity
      and in fact discharge the responsibilities required by his
      representation.

                                      ***



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             In addressing the petitioner’s right to counsel under the
      precursor to the PCRA, we admonished that [w]hen appointed
      counsel fails to amend an inarticulately drafted pro se [post
      conviction]   petition,   or   fails  otherwise   to    participate
      meaningfully, this [C]ourt will conclude that the proceedings
      were, for all practical purposes, uncounseled and in violation of
      the representation requirement …. Both this Court and our
      Supreme Court have recognized that a post conviction petition is
      effectively uncounseled under a variety of circumstances
      whenever omissions of record demonstrate that counsel’s
      inaction deprived the petitioner the opportunity of legally trained
      counsel to advance his position in acceptable legal terms.

Commonwealth v. Karanicolas, 836 A.2d 940, 946 (Pa. Super. 2003)

(citations and internal quotation marks omitted); see also Commonwealth

v. Wiley, 966 A.2d 1153, 1158-59 (Pa. Super. 2009) (remanding for court

to permit petitioner to file a counseled PCRA petition where petitioner was

“chronically unrepresented by appointed counsel, there was never an

amended counseled PCRA petition filed, and [petitioner] apparently [was]

forced to act on his own”).

      Herein, we conclude that Appellant’s first petition was uncounseled for

all practical purposes.    Once appointed, Attorney Graff did not file an

amended petition on Appellant’s behalf. Moreover, although Attorney Graff

appeared at the June 26, 2014 hearing, a review of the transcript reveals

that he failed to fulfill his responsibility to represent Appellant diligently and

competently, regardless of the merits of Appellant’s claims. 6 Furthermore,



6
 As noted by Appellant, if Attorney Graff believed Appellant’s issues were
without merit, he should have followed the procedure for withdrawing his


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J-A14039-15


Attorney Graff did not pursue an appeal on behalf of Appellant following the

dismissal of his March 5, 2014 petition.      The effect of Attorney Graff’s

inaction is only compounded by Appellant’s unsuccessful attempt at pursuing

his appeal pro se.

      Because Appellant effectively was denied his right to representation by

counsel in his first PCRA petition and the proper procedure was not followed

in determining whether Appellant waived his right to counsel,7 we vacate

both the PCRA court’s August 28, 2014 order denying Appellant’s August 20,

2014 motion and its June 26, 2014 order dismissing Appellant’s March 5,

2014 petition. We remand for the appointment of new counsel to provide

the representation to which Appellant is entitled under Pa.R.Crim.P. 904(c),

beginning with the filing of an amended PCRA petition or a no-merit letter

which satisfies all of the requirements of Turner and Finley.          Should

Appellant indicate that he wishes to proceed pro se on his petition, the PCRA




representation pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc).
7
  “[W]here 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).



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court shall hold a proper hearing pursuant to Grazier to determine if such

waiver is voluntary, intelligent, and knowing.8

      Orders vacated.     Case remanded with instructions.     Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/17/2015




8
  In light of our disposition above, we need not address Appellant’s
substantive issues.


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