J-S78032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

DONALD RAYE CHANEY JR.

                             Appellant                 No. 447 WDA 2016


                 Appeal from the PCRA Order February 23, 2016
         in the Court of Common Pleas of Erie County Criminal Division
                       at No(s): CP-25-CR-0000067-2012

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 15, 2017

        Appellant, Donald Raye Chaney, Jr., appeals pro se from the order

entered in the Erie County Court of Common Pleas dismissing his first Post

Conviction Relief Act1 (“PCRA”) petition. Appellant contends the PCRA court

disregarded the prisoner mailbox rule and Pa.R.Crim.P. 907 by not granting

his timely filed pro se motion for extension of time to object to the PCRA

court’s Rule 907 notice.     He also asserts trial counsel’s ineffectiveness for

not cross-examining two Commonwealth witnesses who Appellant contends

were paid for their false testimony.           We vacate and remand with

instructions.




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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        The relevant facts and procedural history of this case are as follows. A

jury convicted Appellant on November 13, 2012, of simple assault, 2

possessing an instrument of crime,3 and two counts of aggravated assault.4

On January 3, 2013, the court sentenced Appellant to an aggregate sentence

of six-and-one-half to thirteen years’ imprisonment.       This Court affirmed

Appellant’s judgment of sentence on March 7, 2014. See Commonwealth

v. Chaney, 492 WDA 2013 (Pa. Super. Mar. 7, 2014) (unpublished

memorandum). Appellant did not file a petition for allowance of appeal.

        Appellant timely filed a pro se PCRA petition on March 18, 2015. The

PCRA court appointed counsel, who filed a petition to withdraw and a

Turner/Finley5 “no merit” letter on June 10, 2015. On January 27, 2016,

the PCRA court issued notice of its intent to dismiss Appellant’s petition

without a hearing after February 16, 2016, pursuant to Pa.R.Crim.P. 907.

        Appellant submitted a pro se motion for extension of time to object to

the PCRA court’s Rule 907 notice on February 13, 2016.6          Appellant also


2
    18 Pa.C.S. § 2701(a)(1).
3
    18 Pa.C.S. § 907(a).
4
    18 Pa.C.S. § 2702(a)(1), (4).
5
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
6
 See generally Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa.
Super. 2006) (discussing prisoner mailbox rule). As set forth below, the
PCRA court did not address the applicability of the prisoner mailbox rule.



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included a cash slip dated February 13, 2016, and an envelope with a

postmark of February 16, 2016.

     On February 23, 2016, the PCRA court dismissed Appellant’s petition.

The PCRA court’s order also directed that Appellant’s pro se motion for

extension of time be forwarded to PCRA counsel and added the following in a

footnote:

        On February 19, 2016, this [c]ourt received a Pro Se
        Motion for Extension of Time to File Objection to Notice of
        Intent to Dismiss PCRA Pursuant to Pa.R.Crim.P.907. The
        [c]ourt cannot accept hybrid filings. See Commonwealth
        v. Jette, 23 A.3d 1032, 1036 (Pa. Super. 2011).
        Moreover, the filing is late pursuant . . . to the Notice of
        Intent to Dismiss of January 27, 2016[.] Objections to the
        Notice were due within 20 days, that is . . . by February
        16, 2016. Even if the Motion was not a hybrid filing, and
        the Motion had been filed before the deadline for filing
        Objections, the Motion would have been denied.

Order, 2/23/16, at 1 n.1 (unpaginated).

     On March 22, 2016, Appellant filed a pro se notice of appeal.     The

following day, the PCRA court forwarded Appellant’s pro se notice of appeal

to counsel, as the PCRA court had not granted counsel’s petition to

withdraw.   On March 23, 2016, the PCRA court also ordered that counsel

“and/or” Appellant comply with Pa.R.A.P. 1925(b), and served the order on

both counsel and Appellant.   On April 1, 2016,7 Appellant filed a pro se


7
  See Wilson, 911 A.2d at 944 n.2. The certificate of service reflects
service by mail on March 22, 2016. The court docketed the notice on April
1, 2016.




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“notice,” contending, inter alia, that the PCRA court failed to apply the

prisoner mailbox rule when it held his motion was filed late. Notice, 4/1/16,

at 1. The following day, Appellant filed a pro se document titled “Waiver of

Counsel,” in which he purported to waive his right to counsel.         Appellant

subsequently filed his timely Rule 1925(b) statement pro se on April 7,

2016.8

      On April 28, 2016, the PCRA court filed its Rule 1925(a) opinion, which

asserted that PCRA counsel’s petition to withdraw was denied by operation

of law. PCRA Ct. Op., 4/28/16, at 1. The PCRA court’s opinion cited no legal

authority in support of its assertion.

      Appellant filed a pro se appellate brief raising the following issues:

         Whether the trial court erred in ruling that [Appellant’s]
         motion for extension of time to file a[n] objection to the no
         merit letter of appointed counsel and order of the court to
         dismiss PCRA as not timely filed when the court ruled the
         motion was filed late and [did] not recogniz[e] the inmate
         mail box rule.

         Whether the trial court erred in ruling [Appellant’s] motion
         for extension of time was file[d] as [a] hybrid filing when
         appointed counsel notified [Appellant] to proceed pro se or
         to hire counsel and forwarded [Appellant] a copy of the
         motion to withdraw as counsel.

         Whether trial counsel was ineffective for not calling state
         witnesses for [their] receiving of payment for [their]
         testimony.


8
 The court also docketed an identical copy of Appellant’s pro se statement
on April 12, 2016.




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Appellant’s Brief at 8 (some capitalization and punctuation removed).

     As a prefatory matter, we address the status of Appellant’s legal

representation.   “[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) (citations omitted).       Furthermore, “a criminal

defendant has a constitutional right to represent himself[.]” Id. “When 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.” Id. (citations and quotation marks

omitted).   See Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998)

(requiring on-the-record determination of whether waiver of counsel was

knowing, intelligent, and voluntary). However, “mere execution of a waiver

of counsel form, without more, is insufficient to establish valid waiver.”

Commonwealth v. Brady, 741 A.2d 758, 762 (Pa. Super. 1999) (citations

omitted).

     In Robinson, the appellant filed a timely, first PCRA petition. Id. The

PCRA court appointed counsel who filed a supplemental petition and

represented the appellant at the evidentiary hearing.        Id.   After the

appellant’s PCRA petition was denied, he filed a pro se appeal, followed by a

petition expressing his desire to proceed pro se and requesting a waiver

colloquy. Id. Rather than conduct the colloquy, however, the PCRA court



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filed an order permitting counsel to withdraw when counsel neither

petitioned for withdrawal nor filed a Turner/Finley letter. Id.

      On appeal, this Court en banc held that “in any case where a

defendant seeks self-representation in a PCRA proceeding and where counsel

has not properly withdrawn, a [Grazier] hearing must be held.” Id. at 456.

The right to counsel during the litigation of a first PCRA petition is

particularly important because it “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.” Id. at

458-59.

      Here, PCRA counsel filed a petition to withdraw and a “no merit” letter

on June 10, 2015.    Rather than address counsel’s motion, the PCRA court

issued Rule 907 notice on January 27, 2016.      Believing he was no longer

represented by PCRA counsel, Appellant filed a pro se motion requesting an

extension of time to file an objection to the PCRA court’s Rule 907 notice.

This motion was timely filed on February 13, 2016, pursuant to the prisoner

mailbox rule. See Wilson, 911 A.2d at 944 n.2. On February 23, 2016, the

PCRA court dismissed Appellant’s PCRA petition.      Having disregarded the

prisoner mailbox rule and counsel’s petition to withdraw, the court also

deemed Appellant’s pro se motion requesting an extension of time to be an

untimely hybrid filing.   See Order at 1 n.1 (unpaginated).       Acting pro se,

Appellant timely filed a notice of appeal and complied with the PCRA court’s



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Rule 1925(b) order. Thereafter, on April 12, 2016, Appellant filed a pro se

waiver of counsel, which indicated he was doing so knowingly, intelligently,

and voluntarily. See Waiver of Counsel, filed 4/12/16.

      Nevertheless, this averment by itself is insufficient to establish a

waiver of Appellant’s right to counsel, and the PCRA court furthermore failed

to conduct a Grazier hearing.     See Robinson, 970 A.2d at 457; Brady,

741 A.2d at 762.     Moreover, rather than explicitly disposing of counsel’s

petition to withdraw, the PCRA court made an unsubstantiated claim that the

petition was denied by operation of law. See PCRA Ct. Op. at 1. However,

there is no evidence in the record that PCRA counsel’s petition to withdraw

from representation was ever addressed.        Therefore, even though PCRA

counsel remains counsel of record, the PCRA court’s oversight deprived

Appellant of his right to representation throughout the entire litigation of his

first PCRA petition. See Robinson, 970 A.2d at 457.

      Accordingly, we are constrained to vacate the dismissal of Appellant’s

PCRA petition and remand for the PCRA court to appoint new counsel or

conduct a Grazier hearing so that Appellant may respond to the PCRA

court’s Rule 907 notice.    See Robinson, 970 A.2d at 460 (stating “[i]f

[a]ppellant retracts his desire to act as his own counsel, new counsel must

be appointed. Once the appropriate proceedings are conducted, the order

denying PCRA relief can be reinstated, and [a]ppellant, or his counsel, can

file an appeal.”).



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      Order vacated.      Case remanded with instructions.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/15/2017




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