J-S14037-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                  Appellee                :
                                          :
          v.                              :
                                          :
DANIEL L. COLON,                          :
                                          :
                  Appellant               :   No. 1399 MDA 2016

                   Appeal from the Order Entered July 26, 2016,
                 in the Court of Common Pleas of Snyder County,
               Criminal Division, at No(s): CP-55-CR-2100030-2000

BEFORE:        GANTMAN, P.J., SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                    FILED APRIL 27, 2017

     Daniel L. Colon (Appellant) appeals pro se from the July 26, 2016

order that denied his petition for a writ of habeas corpus.   We vacate the

order and remand for further proceedings consistent with this memorandum.

     In 2001, Appellant pled nolo contendere to drug charges and was

sentenced to an aggregate term of six to 30 years of imprisonment.      This

Court affirmed his judgment of sentence on October 3, 2002, and our

Supreme Court denied his petition for allowance of appeal on June 24, 2003.

Commonwealth v. Colon, 815 A.2d 1124 (Pa. Super. 2002) (unpublished

memorandum), appeal denied, 825 A.2d 1259 (Pa. 2003).

     Appellant took no further action until he filed a petition for writ of

habeas corpus on June 10, 2016. Therein, Appellant (1) claimed that he is

serving an illegal sentence based upon the application of an unconstitutional


*Retired Senior Judge assigned to the Superior Court.
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mandatory minimum provision, Petition, 6/10/2016, at ¶ 9; (2) stated that

his petition was not filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546, id. at ¶ 2; requested to proceed in forma

pauperis, id. at ¶ 12; forswore the appointment of counsel, id. at ¶ 13; and

asked to proceed pro se. Id.

      After the Commonwealth filed an answer to the petition, the trial court

scheduled a hearing which Appellant attended via teleconference from state

prison.   The trial court proceeded to the merits of Appellant’s claim,

determined that he had not been sentenced under a mandatory minimum

statute, and denied the petition. N.T., 7/26/2016, at 9-10.

      Appellant timely filed a notice of appeal, and both Appellant and the

trial court complied with Pa.R.A.P. 1925.1    In his appellate brief, Appellant

argues that his sentence is illegal, and also makes a number of allegations

about the ineffectiveness of his plea counsel. Appellant’s Brief at 2.

      Before we consider the substance of Appellant’s claims, we must

determine the proper framework for our review. The first principle of note is

that “the PCRA subsumes all forms of collateral relief, including habeas

corpus, to the extent a remedy is available under such enactment.”


1
  Although Appellant’s concise statement of errors complained of on appeal
was filed more than 21 days after the order directing him to do so, it
appears from the record that it was timely filed under the prisoner mailbox
rule. See, e.g., Commonwealth v. Wilson, 911 A.2d 942, 944 (Pa.
Super. 2006) (indicating that under the prisoner mailbox rule, a document is
deemed to have been filed when it was placed in the hands of prison
authorities for mailing).

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J-S14037-17


Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007). Claims of an

illegal sentence and the ineffective assistance of counsel are cognizable

under the PCRA.     Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa.

Super. 2011); 42 Pa.C.S. § 9543(a)(2)(ii), (vii).         Accordingly, despite

Appellant’s protestations to the contrary, his habeas corpus petition should

have been treated as his first PCRA petition.

      Second, “before the trial court disposes of a post conviction petition, it

must first make a determination as to the petitioner’s indigence and if the

petitioner is indigent, the court must appoint counsel to assist in the

preparation of said petition.”    Commonwealth v. Hampton, 718 A.2d

1250, 1253 (Pa. Super. 1998) (quoting Commonwealth v. Van Allen, 597

A.2d 1237, 1239 (Pa. Super. 1991)) (emphasis omitted).

      [I]f a PCRA defendant indicates a desire to represent himself, it
      is incumbent upon the PCRA court to elicit information from the
      defendant that he understands the items outlined in Pa.R.Crim.P.
      121(A)(2)(a), (d), (e), and (f). A court must explain to a
      defendant that he has the right to counsel, in accordance with
      (a), that he is bound by the rules as outlined in (d), and that he
      may lose rights, as indicated in (f). Subsection (e) must be
      appropriately tailored so that a defendant is informed that “there
      are possible defenses to these charges that counsel might be
      aware of, and if these defenses are not raised [in a PCRA
      petition], they may be lost permanently.”

Commonwealth v. Robinson, 970 A.2d 455, 459-60 (Pa. Super. 2009).

      Here, the trial court opened the hearing with the following exchange

with Appellant:




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      THE COURT:        [Appellant], do you understand, sir, that you
      do have the right to be represented by an attorney?

      [APPELLANT]:        Yes, I do, Your Honor.

      THE COURT:        Okay. Have you applied for any representation
      by the Public Defender?

      [APPELLANT]:        No.

      THE COURT:       Do you wish to proceed in this matter with or
      without an attorney?

      [APPELLANT]:        I will proceed without, Your Honor.

      THE COURT:          Okay. …

N.T., 7/26/2016, at 2.

      Clearly,   the   trial   court’s   colloquy   failed   to   satisfy   all   of   the

requirements of Rule 121 as discussed in Robinson, 970 A.2d at 459-60.

      Furthermore, the apparent untimeliness of Appellant’s petition does

not render harmless the failure to appoint counsel or to hold a proper waiver

colloquy.   See, e.g., Commonwealth v. Smith, 818 A.2d 494, 501 (Pa.

2003) (“[A]n indigent petitioner, whose first PCRA appears untimely, is

entitled to the assistance of counsel in order to determine whether any of

the exceptions to the one-year time limitation appl[ies].”); Commonwealth

v. Kutnyak, 781 A.2d 1259, 1262 (Pa. Super. 2001) (holding it was error to

dismiss the PCRA petition before appointing counsel, “despite any apparent

untimeliness of the petition or the apparent non-cognizability of the claims

presented”).



                                         -4-
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     Thus, because “[t]he denial of PCRA relief cannot stand unless the

petitioner was afforded the assistance of counsel,” Commonwealth v.

Albrecht, 720 A.2d 693, 699 (Pa. 1998), remand is necessary for

appointment of counsel or a waiver colloquy that satisfies Pa.R.Crim.P. 121.

     Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 4/27/2017




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