J-S18042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

DWAYNE HENRY

                                  Appellant            No. 165 EDA 2016


                Appeal from the PCRA Order December 4, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0805831-2004

BEFORE: PANELLA, SOLANO, and FITZGERALD,* JJ.

JUDGMENT ORDER BY FITZGERALD, J.:                     FILED MARCH 23, 2017

        Appellant, Dwayne Henry, appeals from an order dismissing his first

petition1 for relief under the Post Conviction Relief Act (“PCRA”). 2        We

remand this case for the PCRA court to conduct a hearing in accordance with

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

        The PCRA court recounts the factual and procedural history of this case

as follows:

           On June 22, 2004, at approximately 11:30 p.m., Appellant
           . . . and another man, robbed William Sizemore at the
           point of a shotgun and struck him in his face. Appellant
           was arrested shortly thereafter.


*
    Former Justice specially assigned to the Superior Court.
1
 As discussed below, Appellant timely filed his first petition in 2009 and
amended it four times between 2009 and 2015.
2
    42 Pa.C.S. §§ 9541-9546.
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       On October 24, 2006, a jury trial commenced before the
       Honorable Joseph A. Dych. Appellant was represented by
       Troy Wilson, Esquire. On October 25, 2006, the jury found
       Appellant guilty of robbery, possession of an instrument of
       crime, and criminal conspiracy. On February 9, 2007,
       Appellant was sentenced to seven and one-half . . . to
       fifteen . . . years’ imprisonment.

       On February 22, 2007, Appellant appealed to the Superior
       Court, arguing that his sentence was excessive.         On
       August 7, 2008, the Superior Court affirmed the [t]rial
       [c]ourt’s judgment of sentence.        Our Supreme Court
       denied Appellant’s Petition for Allowance of Appeal on April
       15, 2009.

       On June 15, 2009, Appellant filed a pro se PCRA Petition.
       John Cotter, Esquire, was subsequently appointed to
       represent Appellant. Mr. Cotter filed an Amended PCRA
       Petition on February 4, 2010; he filed a Supplemental
       Amended PCRA Petition on July 12, 2010. On June 15,
       2011, Appellant filed a pro se “Motion to Waive Counsel
       And Proceed Pro Se Due to Ineffectiveness And
       Dishonesty.”     On September 15, 2011, this [c]ourt
       dismissed Appellant’s PCRA Petition and permitted Mr.
       Cotter to withdraw as counsel.

       On October 13, 2011, Appellant filed a pro se [n]otice of
       [a]ppeal to the Superior Court from this Court’s dismissal
       of his PCRA Petition. On November 23, 2011, Appellant
       filed a pro se [m]otion for [a]ppointment of [c]ounsel with
       the Superior Court. On July 24, 2012, the Superior Court
       remanded with instructions; it directed this [c]ourt to
       conduct a Grazier hearing to determine whether Appellant
       wanted new counsel appointed to assist with his claims of
       PCRA counsel’s ineffectiveness. On January 15, 2014, a
       Grazier hearing was conducted, during which Appellant
       unequivocally stated that he wanted Mark Mungello,
       Esquire, who had been previously appointed by this
       [c]ourt, to represent him in the PCRA matter.

       Mr. Mungello filed a Third Amended PCRA Petition on
       behalf of Appellant on February 21, 2014.          Appellant
       subsequently advised Mr. Mungello that the issues raised
       in this [p]etition were not precisely correct. He asked Mr.


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        Mungello to file a Fourth Amended PCRA Petition to include
        all issues Appellant wished to raise.    Per Appellant’s
        request, Mr. Mungello filed a Fourth Amended PCRA
        Petition on June 25, 2015. The Commonwealth filed a
        Motion to Dismiss on September 27, 2015; this Court
        granted the Commonwealth’s Motion on October 30, 2015
        and issued a Pa.R.Crim.P. 907 notice. Appellant’s Fourth
        Amended PCRA Petition was formally dismissed on
        December 4, 2015.[3]

        On December 7, 2015, Douglas P. Earl, Esquire, was
        appointed to represent Appellant for purposes of appeal.
        Despite having counsel of record, Appellant filed a pro se
        [n]otice of [a]ppeal to the Superior Court on January 4,
        2016.[4]    On January 12, 2016, this Court ordered
        Appellant to file a [c]oncise [s]tatement of [e]rrors
        [c]omplained of on [a]ppeal pursuant to Pa.R.A.P. 1925(b)
        within twenty-one days. Appellant filed a pro se 1925(b)
        [s]tatement on February 12, 2016, eight days after the
        specified deadline.

PCRA Ct. Op., 7/19/16, at 1-3. The PCRA court’s docket states that (1) on

March 17, 2016, Mr. Earl filed a motion to withdraw as counsel for Appellant;

and (2) on April 6, 2016, the PCRA court granted Mr. Earl’s motion to

withdraw without first holding a Grazier hearing.          Neither of these




3
 In the same order, the PCRA court dismissed Mr. Mungello as counsel for
Appellant.
4
  The Rules of Appellate Procedure provide that the appellant must file his
notice of appeal within thirty days after a final order. See Pa.R.A.P. 903(a).
Here, however, the thirtieth day after the dismissal of Appellant’s petition,
January 3, 2016, fell on a Saturday. Therefore, Appellant timely filed his
appeal on Monday, January 4, 2016. See 1 Pa.C.S. § 1908 (when last day
of any period of time referred to in any statute falls on Saturday, Sunday, or
legal holiday, such day shall be omitted from computation).




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documents are in the certified record, so we cannot tell whether Mr. Earl’s

letter was a Turner/Finley5 “no merit” letter.

      Appellant has filed a pro se brief and reproduced record in this Court,

and the Commonwealth has filed a responsive brief.

      The Rules of Criminal Procedure and our case law nevertheless require

a full colloquy prior to allowing an appellant to proceed pro se if counsel has

not filed a Turner/Finley letter.   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 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 PCRA court did not conduct a Grazier hearing prior to

allowing Mr. Earl to withdraw as appellate PCRA counsel, we vacate the

PCRA court’s April 6, 2016 order and 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


5
  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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Grazier hearing and enter its decision within forty-five days of the date of

this order.

      April 6, 2016 order vacated. Case remanded for further proceedings in

accordance with this memorandum. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/23/2017




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