J-A13045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF                        :    IN THE SUPERIOR COURT
  PENNSYLVANIA,                          :       OF PENNSYLVANIA
                                         :
                         Appellee        :
                                         :
                    v.                   :
                                         :
  MARK ANTHONY NATICCHIONE,              :
                                         :
                         Appellant       :    No. 1637 EDA 2017


           Appeal from the Judgment of Sentence April 21, 2017
              in the Court of Common Pleas of Bucks County
           Criminal Division at No(s): CP-09-CR-0006877-2016

BEFORE:    SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                   FILED AUGUST 16, 2019

       Mark Anthony Naticchione (Appellant) appeals pro se from his

judgment of sentence imposed on April 21, 2017, after a jury found him guilty

of escape. Upon review, we vacate Appellant’s judgment of sentence and

remand for proceedings consistent with this memorandum.

       During his April 20 to 21, 2017 jury trial, Appellant was represented

by appointed counsel, Attorney Daniel Schatz. On April 21, 2017, Appellant

was found guilty of escape, and the case proceeded directly to sentencing the

same day. The trial court sentenced Appellant, in excess of the aggravated




* Retired Senior Judge assigned to the Superior Court.
J-A13045-19


range, to 42 months to seven years of incarceration.1 The trial court also

ordered that Appellant be given credit for time served. Appellant, through

Attorney Schatz, timely filed a motion for reconsideration of his sentence,

arguing that his sentence was excessive. Motion for Reconsideration of

Sentence, 5/1/2017. That motion was denied on May 5, 2017. On May 18,

2017, Appellant pro se filed a notice of appeal to this Court.2

         On June 12, 2017, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925. On

June 30, 2017, Attorney Schatz filed notice of intention to file an

Anders/McClendon brief pursuant to Pa.R.A.P. 1925(c)(4).3           On July 10,

2017, the trial court wrote a letter to the Clerk of Courts of Bucks County,

which stated the following.

       Appellate Counsel has reviewed the record and has determined
       that there are no meritorious issues to support an appeal.
       Pursuant to Pa.R.A.P. 1925(c)(4), counsel has filed a statement of
       intent to file an Anders/McClendon brief with the Superior Court
       in lieu of a Concise Statement of Matters Complained of on Appeal.
       Please forward the complete record to the Superior Court for
       review.


____________________________________________
1 According to the trial court, the standard range was 34 to 36 months of
incarceration, and the aggravated range was 39 months of incarceration. N.T.,
4/21/2017, at 82.

2A pro se notice of appeal is an exception to the general rule prohibiting hybrid
representation. See Commonwealth v. Williams, 151 A.3d 621 (Pa. Super.
2016) (citing 210 Pa. Code § 65.24).

3See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).

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Letter, 7/10/2017.

        The Clerk of Courts complied with the trial court’s directive and

transmitted the record to this Court. On July 20, 2017, Appellant pro se filed

an application with this Court to proceed pro se. On August 25, 2017, this

Court entered an order directing the trial court “to conduct an on-the-record

determination as to whether the Appellant’s waiver of counsel is knowing,

intelligent and voluntary pursuant to Commonwealth v. Grazier, 713 A.2d

81 (Pa. 1988), and to provide written notice of its determination to the

Prothonotary of this Court within sixty [] days.” Per Curiam Order, 8/25/2017.

        The trial court scheduled a Grazier hearing for October 20, 2017. At

that hearing, Appellant stated that although he did not wish to represent

himself, he did not agree with Attorney Schatz’s position that there was no

merit to the issues he wished to raise on appeal. N.T., 10/20/2017, at 4. The

trial court explained to Appellant that Attorney Schatz fulfilled his obligations

by filing his statement of intent to file an Anders brief. Id. at 5. The trial

court stated that if Attorney Schatz were to continue to represent Appellant,

he would file a brief stating the issues do not have merit, and then it would

be up to the Superior Court to review the issues. Id. at 6.            Appellant

maintained that he did not wish for Attorney Schatz to represent him. Id.

Appellant stated that he wished to proceed “on [his] own” because Attorney

Schatz “is not helping” him. Id. at 7. According to Appellant, “[t]hat’s the

only reason why [he is] going to proceed on [his] own.” Id. at 7-8. Thus, the


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trial court elected not to colloquy Appellant regarding his waiver of counsel.

The trial court gave Appellant two options: (1) proceed with Attonrey Schatz,

who would file an Anders brief, or (2) proceed pro se. Id. at 10. Appellant

chose to proceed pro se. Id. at 11. Based on the foregoing, the trial court

entered an order concluding that Appellant’s decision to proceed pro se “is

knowing, intelligent and voluntary.” Trial Court Order, 10/20/2017.

         Subsequently, Appellant filed pro se an amended concise statement of

errors complained of on appeal. Appellant suggested that (1) his sentence is

illegal because the trial court did not make a determination as to Appellant’s

eligibility for the Recidivism Risk Reduction Incentive (RRRI) program,4 (2)

the trial court abused its discretion by sentencing Appellant in excess of the

aggravated range, and (3) the trial court erred by not calculating his credit for

time served in a proper manner. Amended Concise Statement, 5/9/2018. The

trial court authored an opinion in response, where it did not address

Appellant’s RRRI-related claim, but did address the other issues and concluded

Appellant was not entitled to relief.          On October 7, 2018, the trial court

authored an amended opinion wherein it agreed with Appellant that his

sentence was illegal because the court “did not make a determination as to

[Appellant’s] eligibility under the RRRI Act as required.” Supplemental

Opinion, 10/7/2018, at 1. Moreover, according to the trial court, “[t]he record

developed at the time [the] sentence was imposed is not sufficiently clear to

____________________________________________
4   See 61 Pa.C.S. §§ 4501-4512.

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establish whether Appellant would be an ‘eligible offender’ under 61 Pa.C.S.

§ 4503.” Id. Thus, the trial court now requests “that the matter be remanded

for purposes of resentencing in accordance with [sub]ection 4505(a).” Id.

         On appeal, Appellant advances the same three issues he set forth in

his amended concise statement. Under normal circumstances, we would first

determine whether Appellant is properly proceeding pro se.            However,

because the trial court and the Commonwealth5 have requested we vacate

Appellant’s sentence and remand for a new sentencing hearing due to the

RRRI-related issue, we will first address that issue.

         It is well settled that at the time of sentencing, the trial court must

make a determination as to a defendant’s RRRI eligibility. See 61 Pa.C.S.

§ 4505(a); 42 Pa.C.S. § 9756; Commonwealth v. Robinson, 7 A.3d 868,

871 (Pa. Super. 2010). Here, the trial court and Commonwealth concede this

did not occur, and our review of the sentencing transcript confirms the

omission.     Accordingly, we vacate Appellant’s judgment of sentence and

remand for a new sentencing hearing.

         Having concluded that Appellant is entitled to a new sentencing

hearing, we also conclude that the trial court shall appoint new counsel, not

Attorney Schatz, to represent Appellant. It is clear that Appellant wished to

have counsel for his appeal, but disagreed with Attorney Schatz as to the merit

of the issues he wished to raise on appeal. Generally speaking, a defendant

____________________________________________
5   See Commonwealth’s Brief at 18-19.

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is not entitled to appointed counsel of his choosing. See Commonwealth v.

Cook, 952 A.2d 594, 617 (Pa. 2008) (“While an indigent [defendant] is

entitled to free counsel, he is not entitled to free counsel of his own

choosing.”).     However, a change of counsel is permitted, and can be

warranted, where there are irreconcilable differences between a defendant

and counsel. Id. Here, Appellant was correct that there is merit to at least

one of issues he wished to present on appeal. Accordingly, it is appropriate

under these circumstances that the trial court appoint new counsel for

Appellant’s re-sentencing and any further proceedings.6

         Judgment of sentence vacated.           Case remanded for proceedings

consistent with this memorandum. Jurisdiction relinquished.

Judge Shogan joins this memorandum.

Judge Nichols concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/19



____________________________________________
6 Because we are vacating Appellant’s judgment of sentence, we need not
reach either his discretionary-aspects-of-sentence issue or credit-time issue
at this juncture. However, those issues may be raised in a new post-sentence
motion or direct appeal following re-sentencing.

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