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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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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
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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.
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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.
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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.
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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:
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7
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988).
8
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988).
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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
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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
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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.
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[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:
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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.
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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.
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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.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2015
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