J-S53012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 SHAWN WILLIAMS                            :
                                           :
                    Appellant              :   No. 2825 EDA 2018

           Appeal from the PCRA Order Entered August 22, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0012558-2010


BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                           FILED OCTOBER 23, 2019

      Appellant, Shawn Williams, appeals from an order entered on August

22, 2018, which dismissed his first petition for collateral relief filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We

vacate and remand to allow the PCRA court to conduct a Grazier hearing and

determine whether Appellant knowingly, voluntarily, and intelligently waived

his right to a counseled PCRA appeal. Commonwealth v. Grazier, 713 A.2d

81, 82 (Pa. 1998); see Commonwealth v. Robinson, 970 A.2d 455, 457

(Pa. Super. 2009) (en banc).

      On previous appeal, we summarized the facts of this case as follows.

      The victim, A.H., was thirteen[-]years[-]old on August 17, 2010,
      the day of the attack. [On t]he evening of August 16, 2010, A.H.
      was at the Philadelphia[, Pennsylvania] home [that] her sister,
      [M.K.], shared with her husband, Appellant, and their baby
      daughter. At approximately 11:00 p.m., Appellant and [M.K.]
      began to argue, and about an hour later, Appellant evicted [M.K.]
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     from the house. She was not permitted to take either the baby or
     her sister with her.

     A.H. was watching television with her niece. Shortly after [M.K.]
     left, A.H. put her niece to bed. As A.H. was returning to the first
     floor to turn off the television, Appellant came into the hallway.
     A.H. described what occurred next, as follows. Appellant “grabbed
     my right arm and had pulled me into the [bed]room, and he put
     both hands on my shoulder[s] and pushed me on the bed.” A.H.
     told him to “get off” and pushed him away. Appellant rebuked the
     child’s attempt to avoid the attack. A.H. testified that she refused
     Appellant’s demand to remove her clothing, so Appellant “took
     them off for me. I kept trying to pull them up.” Appellant inserted
     his finger into the victim’s vagina, and then placed his mouth on
     her vagina. A.H. continued to push and scratch Appellant and tell
     him to get off her. Appellant ignored A.H., and then inserted his
     penis into her vagina. A.H. said, “[i]t hurt and it was a lot of
     pressure.” A.H. reported that the pain from Appellant’s penis was
     a nine on a scale of one to ten. Appellant also placed his hands
     and mouth on her breasts. At that point, Appellant placed a pillow
     over A.H.’s face, and she ceased screaming at him.

     When Appellant stopped his assault, A.H. dressed herself and
     retrieved her niece, who had been crying and screaming during
     the crime. She went downstairs with the child and began to watch
     television. Then, Appellant “came downstairs and said if I tell
     anybody, he’s going to kill me and he said that he’s going to kill
     my family.” Eventually, A.H. fell asleep in her niece’s room.

     A.H.’s mother came to pick her up at approximately 7:00 a.m. on
     August 17th. After Appellant left the house, A.H. immediately told
     her mother about the assault, and they went to the police station.
     Police transported the victim to the hospital, where she was
     physically examined. Her vagina still hurt and she “could [not]
     use the bathroom.” A.H. reported that, at the hospital, the pain
     continued to be a nine.

                                     ***

     [Following a non-jury trial conducted on May 24-25, 2011,]
     Appellant was convicted of [rape, unlawful contact with a minor,
     unlawful restraint, and endangering the welfare of a child].




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Commonwealth v. Williams, __A.2d__, 2388 EDA 2012 (Pa. Super. 2014)

(unpublished memorandum), at 1-4 (citations omitted).

      The trial court sentenced Appellant to an aggregate term of 15 to 30

years’ incarceration on July 12, 2011. Id. Subsequently, Appellant appealed

to this Court and we affirmed his judgment of sentence on August 28, 2014.

Id. Appellant filed a timely pro se PCRA petition on June 15, 2015. Appellant’s

PCRA Petition, 6/15/15, at 1-29.      Thereafter, Appellant retained private

counsel and an amended PCRA petition was filed on his behalf. Appellant’s

Amended PCRA Petition, 12/15/16, at 1-4. On July 17, 2018, the PCRA court

provided Appellant with notice that it intended to dismiss his PCRA petition in

20 days without holding a hearing because it determined that Appellant’s

claims lacked merit.   PCRA Court Order, 7/17/18, at 1; see Pa.R.Crim.P.

907(1). The PCRA court dismissed Appellant’s petition on August 22, 2018.

PCRA Court Order, 8/22/18, at 1. On September 14, 2018, Appellant filed a

timely pro se notice of appeal to this Court, even though he was still

represented by counsel.      Appellant’s Notice of Appeal, 9/14/18, at 1.

Appellant then filed his brief and reproduced record in this Court pro se. To

date, however, Appellant’s counsel has neither requested nor received

permission to withdraw.

      The current procedural posture does not permit this Court to reach the

merits of Appellant’s appeal. Throughout the entire PCRA appellate process,

Appellant has proceeded pro se – even though there has been no Grazier

hearing and even though Appellant’s counsel of record has neither requested

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nor received leave to withdraw from representation.       We must therefore

vacate the court’s dismissal order and remand this case to the PCRA court.

      At the outset, we note that Appellant’s counsel has not properly

withdrawn in this case and is, thus, still Appellant’s counsel of record. This

Court has held that, for “both privately retained and court appointed” counsel,

“once an appearance is entered, the attorney is responsible to diligently and

competently represent the client until his or her appearance is withdrawn.

This responsibility includes filing an appeal when the client so requests.”

Commonwealth v. Librizzi, 810 A.2d 692, 693 (Pa. Super. 2002) (internal

citation omitted). Moreover, “an appearance may be withdrawn only by leave

of court.” Id.; Pa.R.Crim.P. 120. Here, Appellant retained a private attorney

to prosecute his PCRA petition and this attorney never received leave of court

to withdraw his appearance. Therefore, throughout this appeal, Appellant’s

PCRA counsel has remained Appellant’s attorney of record.

      Further, the PCRA court did not hold a Grazier hearing to determine

whether Appellant sought to waive his right to counsel and whether such

waiver was “knowing, intelligent, and voluntary.” Grazier, 713 A.2d at 82.

This was error.

      A post-conviction petitioner has a rule-based “right to representation of

counsel for purposes of litigating a first PCRA petition through the entire

appellate process.”   Robinson, 970 A.2d at 457; see also Pa.R.Crim.P.

904(C).   To protect this right, we have held that “in any case where a

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

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has not properly withdrawn,” the PCRA court must hold a Grazier hearing to

determine whether “the defendant’s waiver of the right to counsel is knowing,

voluntary, and intelligent.”   Id. at 456 and 459. As the Robinson Court

held, this demands that the PCRA court hold an on-the-record colloquy with

the petitioner and, “at a minimum . . . elicit the following information from”

the petitioner:

        (a) that the [petitioner] understands that he or she has the
        right to be represented by counsel, and the right to have free
        counsel appointed if the [petitioner] is indigent;

        [(b)] that the [petitioner] understands that if he or she
        waives the right to counsel, the [petitioner] will still be bound
        by all the normal rules of procedure and that counsel would
        be familiar with these rules;

        [(c)] that the [petitioner] understands that there are possible
        defenses to these charges that counsel might be aware of,
        and if these defenses are not raised at trial, they may be lost
        permanently; and

        [(d)] that the [petitioner] understands that, in addition to
        defenses, the [petitioner] has many rights that, if not timely
        asserted, may be lost permanently; and that if errors occur
        and are not timely objected to, or otherwise timely raised by
        the [petitioner], these errors may be lost permanently.

Id. at 459-460; Pa.R.Crim.P. 121(A)(2).

      No such colloquy occurred in this case and, thus, there has been no

showing that Appellant “knowingly, voluntarily, and intelligently” waived his

right to counsel. Robinson, 970 A.2d at 460. This constitutes error on the

part of the PCRA court. Commonwealth v. Davido, 868 A.2d 431, 437-438




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(Pa. 2005) (“it is up to the trial court, not counsel, to ensure that a colloquy

is performed if the defendant has invoked his right to self-representation”).

       Even though Appellant has not raised the issue of abandonment by

counsel or questioned his pro se status on appeal, we have an obligation to

sua sponte raise and address these issues. As we held in Commonwealth v.

Stossel, where a first-time PCRA petitioner fails to properly waive his right to

counsel, “this Court is required to raise this error sua sponte and remand for

the PCRA court to correct that mistake.” Commonwealth v. Stossel, 17

A.3d 1286, 1290 (Pa. Super. 2011).

       We therefore vacate the PCRA court’s dismissal order and remand so

the PCRA court may conduct a Grazier hearing within 30 days to determine

whether, during these PCRA proceedings, Appellant knowingly, voluntarily,

and intelligently requested waiver of his right to counsel. If Appellant does

not wish to waive this right,1 the PCRA court must then determine whether

Appellant is entitled to court-appointed counsel or whether Appellant can

afford to engage counsel at his own expense. If the PCRA court desires the

filing of a Rule 1925(b) concise statement, it must permit newly-appointed or

retained counsel to file a supplemental statement, and the PCRA court must

then address those issues in a supplemental Rule 1925(a) opinion. If counsel



____________________________________________


1We note that on October 15, 2018, Appellant filed a motion for appointment
of counsel with this Court. See Appellant’s Motion for Appointment of Counsel,
10/15/18, at 1.

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is appointed or retained, the filing of any Rule 1925(b) statement and a

supplemental Rule 1925(a) opinion shall be done forthwith.

     Order vacated.   Case remanded for proceedings consistent with this

memorandum decision. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/19




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