J-S36023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMES GREGORY COOPER

                            Appellant                No. 1655 WDA 2014


             Appeal from the Judgment of Sentence August 8, 2012
                In the Court of Common Pleas of Clarion County
              Criminal Division at No(s): CP-16-CR-0000345-2011


BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.:                             FILED JULY 10, 2015

        Appellant James Gregory Cooper appeals from the judgment of

sentence1 entered in the Clarion County Court of Common Pleas following his

jury trial convictions for possession of a controlled substance with intent to

deliver (“PWID”) and two counts of conspiracy for PWID.2 For the reasons

stated in this memorandum, we vacate his judgment of sentence, and

remand for resentencing.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   This was originally docketed as an appeal from the order denying
Appellant’s petition for relief pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. However, for the reasons stated in this
memorandum, we conclude that this is a timely direct appeal, not an appeal
from the denial of PCRA relief.
2
    35 P.S. § 780-113(a)(30), 18 Pa.C.S. § 903, respectively.
J-S36023-15



       The relevant facts and procedural history of this appeal are as follows.

On June 10, 2011, police arrested Appellant, his wife, and their son after

executing a search warrant of their house, garage, and motor home and

discovering seven pounds of marijuana, a jar of marijuana seeds, digital

scales, zip lock bags, a grow light, Miracle Grow, money from controlled drug

buys between an undercover police officer and Appellant’s son, and

weapons. On June 27, 2012, a jury convicted Appellant of PWID and two

counts of conspiracy.3 On August 8, 2012, the court imposed sentences of

five (5) to ten (10) years’ incarceration for PWID, the mandatory minimum

pursuant to the weapons enhancement in 42 Pa.C.S. § 9712.1 and one (1)

to   two   (2)   years’    incarceration       for   each   of   Appellant’s   conspiracy

convictions.4

       On August 16, 2012, Appellant’s counsel filed a motion to withdraw

and to extend the time in which Appellant could file a timely post-sentence

motion.     On August 22, 2012, the court granted counsel’s motion to

withdraw and extended the time for Appellant to file a timely post-sentence

motion to August 28, 2012.            The court did not appoint new counsel to




____________________________________________


3
  The jury acquitted Appellant of possession of a firearm, persons not to
possess firearms. 18 Pa.C.S. § 6105.
4
  The court imposed both of Appellant’s conspiracy sentences concurrent to
his PWID sentence.



                                           -2-
J-S36023-15



represent Appellant on direct appeal or conduct a Grazier5 hearing to

determine whether Appellant waived his right to counsel on direct appeal.

       On September 4, 2012, Appellant filed a notice of appeal and another

request for an extension of time to file his post-sentence motion.6           On

September 10, 2012, Appellant sent a letter to the Superior Court indicating

his intention to appeal his judgment of sentence. The next day, this Court

forwarded the letter to the trial court.         On September 13, 2012, the trial

court accepted Appellant’s filings as a timely notice of appeal, but not as a

post-trial motion, because the court did not receive the motion for extension

of time until Appellant’s extended time period to file a post-sentence motion

had expired. That same day, the court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On September 17, 2012, this Court sent a letter to the trial court requesting

it return the notice of appeal to this Court after Appellant amended it to

conform to the Rules of Appellate Procedure.           On October 16, 2012, this

Court sent Appellant a letter with copies of Pa.R.A.P. 904, 905, and 906 to

assist him in perfecting his appeal.




____________________________________________


5
    Commonwealth v. Grazier, 713 A.2d 81 (Pa.1998).
6
 This request was dated August 28, 2012 and stamped as mailed on August
31, 2012.




                                           -3-
J-S36023-15



       Appellant did not file a Pa.R.A.P. 1925(b) statement, the trial court did

not file a Pa.R.A.P. 1925(a) opinion, and this Court never addressed or

dismissed Appellant’s direct appeal.

       On July 11, 2014, Appellant filed a pro se PCRA petition. On July 28,

2014, the trial court appointed counsel to assist Appellant with his first PCRA

petition. Counsel filed a “no merit” letter pursuant to Turner7 and Finley8

and a motion to withdraw as counsel on September 2, 2014. On September

4, 2014, the court granted counsel’s petition to withdraw and issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s PCRA petition.

On September 29, 2014, the court dismissed Appellant’s PCRA petition.

Appellant filed a timely notice of appeal on October 8, 2014. On October 10,

2014, the court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one

(21) days, and he timely complied.

       We must first consider the propriety of Appellant’s direct appeal

because the “timeliness of an appeal and compliance with the statutory

provisions granting the right to appeal implicate an appellate court’s

jurisdiction and its competency to act.” Commonwealth v. Williams, 106

A.3d 583, 587 (Pa.2014) (citation omitted).           Our Rules of Appellate

Procedure provide, in pertinent part:
____________________________________________


7
    Commonwealth v. Turner, 544 A.2d 927 (Pa.1988).
8
    Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988).



                                           -4-
J-S36023-15


        Rule 902. Manner of Taking Appeal

        An appeal permitted by law as of right from a lower court
        to an appellate court shall be taken by filing a notice of
        appeal with the clerk of the lower court within the time
        allowed by Rule 903 (time for appeal). Failure of an
        appellant to take any step other than the timely filing of a
        notice of appeal does not affect the validity of the appeal,
        but it is subject to such action as the appellate court
        deems appropriate, which may include, but is not limited
        to, remand of the matter to the lower court so that the
        omitted procedural step may be taken.

Pa.R.A.P. 902. We observe:

        [Pa.R.A.P. 902] “eliminates the ‘trap’ of failure to perfect
        an appeal” by making timely notices of appeal “self-
        perfecting.” Pa.R.A.P. 902, Note. Thus, to perfect an
        appeal from a lower court order, an appellant need only
        file a notice of appeal with the clerk of the lower court
        within the applicable time period allotted by Rule 903. A
        timely notice of appeal triggers the jurisdiction of the
        appellate court, notwithstanding whether the notice of
        appeal is otherwise defective.

        In the event of a defective notice of appeal, Rule 902
        encourages, though it does not require, appellate courts to
        remand the matter to the lower court so that the
        procedural defect may be remedied. As the note following
        Rule 902 explains, the rule creates a preference for
        correcting procedurally defective, albeit timely, notices of
        appeal so that appellate courts may reach the merits of
        timely appeals. See Pa.R.A.P. 902, Note. The note further
        indicates that dismissal of a defective appeal remains an
        alternative where the appellate court determines that an
        appellant has failed to take the necessary steps to correct
        an identified defect.

Williams, 106 A.3d at 587-88.

     Here, the court imposed Appellant’s judgment of sentence on August

8, 2012. On September 4, 2012, Appellant filed a timely pro se notice of


                                   -5-
J-S36023-15


appeal. Although Appellant did not comply with the trial court’s order to file

a Pa.R.A.P. 1925(b) statement or our order to perfect his appeal, we never

dismissed this appeal.     Thus, Appellant’s direct appeal remains pending,

rendering all PCRA proceedings in the trial court null and void.

      Because Appellant filed a timely notice of appeal and because the trial

court failed to appoint appellate counsel or conduct a Grazier hearing before

or after permitting trial counsel to withdraw, we will not dismiss this appeal.

      “When an appellate court, including this Court, has been presented

with a timely request to proceed pro se on appeal, the court generally has

remanded for a ‘Grazier hearing’ to determine if the waiver of counsel is

knowing, intelligent, and voluntary.” Commonwealth v. Staton, 12 A.3d

277, 280 (Pa.2010).       To ensure that a waiver of counsel is knowing,

voluntary,   and   intelligent,   a   defendant   must   be   colloquied   on   his

understanding of the following six (6) elements:

         (1) whether the defendant understands that he has a right
         to be represented by counsel and the right to free counsel
         if he is indigent, (2) whether the defendant understands
         the nature of the charges against him and the elements of
         each of those charges, (3) whether the defendant is aware
         of the permissible range of sentences and/or fines for the
         offenses charged, (4) whether the defendant understands
         that if he waives the right to counsel he will still be bound
         by all the normal rules of procedure and that counsel
         would be familiar with these rules (5) whether the
         defendant understands that there are possible defenses to
         these charges [of] which counsel might be aware, and if
         these defenses are not raised they may be lost
         permanently, and (6) whether the defendant understands
         that, in addition to defenses, the defendant has other
         rights that, if not timely asserted, may be lost permanently

                                        -6-
J-S36023-15


        and that if errors occur and are not objected to or
        otherwise timely raised by the defendant, the objection to
        these errors may be lost permanently.

Commonwealth v. Houtz, 856 A.2d 119, 123 (Pa.Super.2004) (citation

omitted).

     During Appellant’s sentencing hearing, the following transpired:

        [DEFENSE COUNSEL]: I would like to note for the record
        that [Appellant] has advised me even though he would
        prefer not to represent himself he doesn’t trust any lawyer
        in the area to represent him so I think that he would prefer
        to represent himself in light of the fact that there aren’t
        any trustworthy lawyers in the area. I don’t know if that
        would –

        [APPELLANT]: I explained it all in the 36-page document.

        THE COURT: You heard me say at the beginning of the
        day you have certain post-sentence rights. You have a
        right to file post-sentence motion within 10 days from
        today and the right to appeal within 30 days.

        [APPELLANT]: I don’t understand some of those things.

        THE COURT: That’s what was spelled out for you in the
        written document that you are refusing to sign. You need
        to understand those rights and as you, I think, are aware
        you have the right to raise issues concerning ineffective
        assistance of counsel and Post-Conviction Relief Act
        petition. Those are further in the day, not today.

        [APPELLANT]: My questions on that I understand those
        rights I just don’t understand what they are. What is a
        post-sentence motion is that like for a new trial or is that
        only reason those would be post-sentence motion.

        THE COURT: Right. That would be the value of having an
        attorney represent you to be able to explain procedurally
        how this all works, what the time frame is, what needs to
        be stated in these sorts of filings. If you do it yourself you
        are running the risk of missing what the requirements are.

                                    -7-
J-S36023-15



           [APPELLANT]: There is a lot of explanations in that. I
           have asked for standby counsel in that petition. I have
           made it clear it is really not my desire of what the
           situations are and I give a lot of particulars and facts in
           that statement.

           THE COURT:     All right.   Anything further concerning the
           sentencing?

N.T., August 8, 2012 at 13-14.

      Appellant’s sentencing hearing demonstrates that the trial court failed

to hold a Grazier hearing to determine whether Appellant knowingly,

intelligently and voluntarily waived his right to counsel.   Further, although

Appellant filed a pro se notice of appeal, the court failed to appoint appellate

counsel.

      Ordinarily, the proper procedure at this point would be to remand for a

Grazier hearing. Here, however, before remanding, we vacate Appellant’s

judgment of sentence as illegal under Alleyne v. United States, __ U.S.

__, 133 S.Ct 2151, 186 L.Ed 2d 341 (2013).

      Questions regarding the legality of a sentence “are not waivable and

may be raised sua sponte by this Court.” Commonwealth v. Watley, 81

A.3d 108, 118 (Pa.Super.2013) (en banc), appeal denied, 95 A.3d 277

(Pa.2014).       Further, Alleyne issues directly implicate the legality of

sentence. Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa.Super.2014).

      Our standard of review of questions involving the legality of a sentence

is as follows:


                                        -8-
J-S36023-15


         A challenge to the legality of a sentence…may be
         entertained as long as the reviewing court has jurisdiction.
         It is also well-established that if no statutory authorization
         exists for a particular sentence, that sentence is illegal and
         subject to correction. An illegal sentence must be vacated.
         Issues relating to the legality of a sentence are questions
         of law. Our standard of review over such questions is de
         novo and our scope of review is plenary.

Wolfe, 106 A.3d at 801-02 (citations omitted).

      In this case, Appellant was sentenced under 42 Pa.C.S. § 9712.1,

which provides, in relevant part:

         § 9712.1.   Sentences for certain drug offenses
         committed with firearms


         (a)       Mandatory sentence.–Any person who is
         convicted of violation of section [1]13(a)(30) of [] The
         Controlled Substance, Drug, Device, and Cosmetic Act,
         when at the time of the offense the person or the person’s
         accomplice is in physical possession or control of a firearm,
         whether visible, concealed about the person or the
         person’s accomplice or within the actor’s or accomplice’s
         reach or in close proximity to the controlled substance
         shall likewise be sentenced to a minimum sentence of at
         least five years of total confinement.

                                    *    *    *

         (c)       Proof at sentencing.--Provisions of this section
         shall not be an element of the crime, and notice thereof to
         the defendant shall not be required prior to conviction, but
         reasonable notice of the Commonwealth's intention to
         proceed under this section shall be provided after
         conviction and before sentencing. The applicability of this
         section shall be determined at sentencing. The court shall
         consider any evidence presented at trial and shall afford
         the Commonwealth and the defendant an opportunity to
         present any necessary additional evidence and shall
         determine, by a preponderance of the evidence, if this
         section is applicable.

                                        -9-
J-S36023-15



42 Pa.C.S. § 9712.1.

       In Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.2014) (en

banc), we held that the preponderance of the evidence standard in section

9712.1(c) is unconstitutional under Alleyne.9         Therefore, Appellant’s

judgment of sentence is illegal, and the trial court must resentence Appellant

without consideration of any mandatory minimum sentence provided by

section 9712.1.       Thus, in the interest of judicial economy, we vacate

Appellant’s judgment of sentence and remand for resentencing.10, 11

       Judgment of sentence vacated; case remanded for further proceedings

consistent with this memorandum. Jurisdiction is relinquished.




____________________________________________


9
  In Commonwealth v. Hopkins, our Supreme Court affirmed our holding
that the preponderance of the evidence standard in 18 Pa.C.S. § 6317(a) is
unconstitutional and that the “violative provisions [are] not severable.” 98
MAP 2013, [J-78-2014]-2, filed June 15, 2015.
10
   Our decision today renders the defects in Appellant’s September 4, 2012
notice of appeal moot. In the future, Appellant should be careful to comply
with the Rules of Appellate Procedure, as we could have dismissed his appeal
for being defective.
11
   At sentencing, the trial court shall inquire whether Appellant desires
representation by counsel or wishes to represent himself. If Appellant
desires counsel, the trial court shall appoint new counsel for Appellant. If
Appellant wishes to represent himself, the trial court shall conduct a Grazier
hearing to determine whether Appellant’s waiver of counsel is knowing,
voluntary and intelligent.



                                          - 10 -
J-S36023-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2015




                          - 11 -
