J-S01017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                             Appellee

                       v.

KERRY JOHN SIBBLE

                             Appellant                      No. 545 WDA 2014


                Appeal from the PCRA Order December 30, 2013
               In the Court of Common Pleas of Venango County
              Criminal Division at No(s): CP-61-CR-0000118-2012
                                          CP-61-CR-0000157-2011


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                              FILED JANUARY 30, 2015

        Kerry John Sibble (“Appellant”) appeals from the order of the Venango

County Court of Common Pleas denying his petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. We remand

to the PCRA court for further proceedings consistent with this opinion.

        On March 22, 2011, Appellant was charged at CP-61-CR-0000157-

2011 with driving under the influence/general impairment (2nd offense),1

driving    under    the     influence/highest   rate   of   alcohol   (2nd   offense),2

restrictions of alcoholic beverages,3 and careless driving.4            On March 8,
____________________________________________


1
    75 Pa.C.S. § 3802(a)(1).
2
    75 Pa.C.S. § 3802(c).
3
    75 Pa.C.S. § 3809(a).
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2012, Appellant pled guilty to all charges.       He requested a continuance of

his sentencing hearing because he had a separate case pending and wanted

to be sentenced for both cases at the same hearing.

        The charges in the second case, CP-61-CR-0000118-2012, stemmed

from an April 1, 2011 criminal information, alleging criminal conspiracy to

manufacture a controlled substance (methamphetamine)5 and possessing

precursors with intent to manufacture.6 On April 12, 2012, Appellant pled

guilty to the conspiracy to manufacture count and the Commonwealth nolle

prossed the possessing precursors count.

        On April 12, 2012, the trial court granted Appellant’s motion to change

the sentencing date to April 27, 2012 and to impose sentence for both

convictions at the same hearing.

        On April 27, 2012, the trial court sentenced Appellant at CP-61-CR-

0000157-2011 (the March 8, 2012 conviction) to one to five years’

incarceration for DUI/highest rate and imposed $25.00 fines for the

summary offenses of restrictions of alcoholic beverages and careless driving.

The trial court did not impose a sentence for DUI/general impairment, which

it found merged with DUI/highest rate. The trial court sentenced Appellant


                       _______________________
(Footnote Continued)
4
    75 Pa.C.S. § 3714(a).
5
    18 Pa.C.S. § 903(a)(1); 35 P.S. § 780-113(a)(30).
6
    35 P.S. § 780-113.1(a)(3).



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at CP-61-CR-0000118-2012 (the April 12, 2012 conviction) to 2 to 5 years’

incarceration for criminal conspiracy, which was to run consecutive to the

sentence imposed at CP-61-CR-0000118-2012.

        Appellant filed a motion to reconsider sentence, which the trial court

denied on May 7, 2012. Appellant did not appeal.

        On January 10, 2013, Appellant filed a PCRA petition. The PCRA court

appointed counsel7 and held a hearing on November 1, 2013. On December

30, 2013, the PCRA court denied the petition. Appellant filed a pro se notice

of appeal.8     On March 31, 2014, the court granted Appellant in forma

pauperis status. On April 30, 2014, Appellant filed a pro se statement of

errors complained of on appeal pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b).        On May 13, 2014, the PCRA court issued a 1925(a)

opinion adopting its December 30, 2013 opinion denying Appellant’s PCRA

petition.

        Appellant raises the following issue on appeal:


____________________________________________


7
    Counsel did not file an amended PCRA petition.
8
  The court issued the order denying his PCRA petition on December 30,
2013. Appellant’s proof of service states he mailed his notice of appeal on
January 23, 2014. The clerk of court did not docket the notice until March
25, 2014. Pursuant to the prisoner mailbox rule, the notice was timely.
Commonwealth v. Hopfer, 965 A.2d 270, 272 n.2 (Pa.Super.2009)
(“Pursuant to the ‘prisoner mailbox rule,’ we deem [an appellant’s]
documents filed on the date when he placed them in the hands of prison
authorities for mailing.”).



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           Did the lower court judge erred [sic] when he denied my
           ineffective counsel claims?

Appellant’s Brief at 1.

       We cannot review this claim.            We may not review pro se filings

submitted by a counseled appellant.            See Commonwealth v. Willis, 29

A.3d 393, 399 (Pa.Super.2011) (court erred in considering merits of pro se

amended PCRA petition where defendant had counsel); Commonwealth v.

Jette, 23 A.3d 1032, 1036 (Pa.2011) (Supreme Court of Pennsylvania has

“long-standing policy that precludes hybrid representation”).9      A defendant

has a right to representation by counsel for a first PCRA petition.

Commonwealth v. Stossel, 17 A.3d 1286, 1288 (Pa.Super.2011).                This

right exists “throughout the post-conviction collateral proceedings, including

any appeal from disposition of the petition for post-conviction collateral

relief.”   Pa.R.Crim.P. 904(F)(2); accord Commonwealth v. Brown, 836

A.2d 997, 998-99 (Pa.Super.2003).                Where 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.”             Brown, 836 A.2d at 999.   Further,

“[w]hen 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.”        Commonwealth v.
____________________________________________


9
  Hybrid representation is “self-representation together with counseled
representation.” Commonwealth v. Ellis, 626 A.2d 1137, 1138 (Pa.1993).



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Grazier, 713 A.2d 81, 82 (Pa.1998).               For waiver of the right to PCRA

counsel, the court must determine at the Grazier hearing whether Appellant

understands:      “(1) his right to be represented by counsel; (2) that if he

waived this right, he will still be bound by all normal procedural rules; and

(3) that many rights and potential claims may be permanently lost if not

timely asserted.”       Commonwealth v. Robinson, 970 A.2d 455, 459

(Pa.Super.2009).       A Grazier hearing is required even when neither party

challenges the lack of a hearing. See Stossel, 17 A.3d at 1290.

       Because Appellant filed a pro se notice of appeal of the denial of his

first PCRA petition, we remand this case to the PCRA court for a Grazier

hearing.    The PCRA court shall conduct the hearing within 30 days of the

date of this memorandum. If Appellant wishes to proceed pro se, the PCRA

court may permit Appellant’s counsel to withdraw, and the PCRA court shall

return the record to this Court for disposition of the appeal.        If, however,

Appellant does not waive his right to counsel, the PCRA court shall

determine whether Appellant’s counsel abandoned him and either appoint

new counsel to represent Appellant or direct his counsel to continue to

represent Appellant on appeal.10               If Appellant wishes to proceed with
____________________________________________


10
    If counsel continues to represent Appellant, counsel would have the
following three options:

           Counsel could resume his representation and file an
           advocate’s brief in appellant’s behalf, counsel could
           resume his representation and file a [brief pursuant to
(Footnote Continued Next Page)


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counsel, the PCRA court shall instruct counsel to file an amended Rule

1925(b) statement and the trial court shall issue a supplemental Rule

1925(a) opinion. The 1925(a) opinion shall be filed within 45 days of the

Grazier hearing.

      Case    remanded         for   further     proceedings   consistent   with   this

memorandum. Jurisdiction retained.




                       _______________________
(Footnote Continued)

          Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927
          (1988), and Commonwealth v. Finley, 379 Pa.Super.
          390, 550 A.2d 213 (1988),] or counsel could petition the
          PCRA court for leave to withdraw prior to the filing of a
          brief with this court.

Brown, 836 A.2d at 999 (quoting Commonwealth v. Quail, 729 A.2d 571,
573 n.2 (Pa.Super.1999)).



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