J-S10014-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TROY BAYLOR
Appellant No. 50 EDA 2015
Appeal from the PCRA Order December 15, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007889-2009
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
JUDGMENT ORDER BY GANTMAN, P.J.: FILED JANUARY 20, 2016
Appellant, Troy Baylor, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas, which denied his first petition
filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-
9546. On February 12, 2010, a jury convicted Appellant of corrupt
organizations, theft by deception, conspiracy to commit theft, forgery, and
tampering with public records. The court sentenced him on April 30, 2010,
to an aggregate term of 9-20 years’ imprisonment, plus 7 years’ probation.
On May 23, 2012, this Court affirmed the judgment of sentence. See
Commonwealth v. Baylor, 50 A.3d 247 (Pa.Super. 2012). Appellant
timely filed pro se his first and current PCRA petition on April 2, 2013, and
an amended petition on November 25, 2013. Counsel entered his
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*Retired Senior Judge assigned to the Superior Court.
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appearance on December 19, 2013. On January 28, 2014, Appellant asked
to proceed pro se. The court conducted a Grazier1 hearing on March 27,
2014, after which it permitted Appellant to proceed pro se and counsel to
withdraw. Appellant filed amended PCRA petitions on April 14, 2014, and
June 10, 2014. On November 14, 2014, the court issued notice per
Pa.R.Crim.P. 907. Appellant responded on December 10, 2014. On
December 15, 2014, the court denied PCRA relief. Appellant timely filed a
pro se notice of appeal that day and requested appointment of counsel for
the appeal. On March 6, 2015, the court ordered Appellant to file a
Pa.R.A.P. 1925(b) statement; Appellant pro se timely complied.
As a significant, prefatory matter, Appellant’s current pro se status
presents a question of whether Appellant was effectively deprived of his
rule-based right to counsel on this appeal.
Pursuant to the rules of criminal procedure and interpretive
case law, a criminal defendant has a right to
representation of counsel for purposes of litigating a first
PCRA petition through the entire appellate process. …
* * *
While the right to legal representation in the PCRA context
is not constitutionally derived, the importance of that right
cannot be diminished merely due to its rule-based
derivation. In the post-conviction setting, the defendant
normally is seeking redress for trial counsel’s errors and
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1
Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998) (holding court
must determine on record that indigent defendant wants to proceed pro se,
to ensure waiver of counsel is knowing, intelligent and voluntary).
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omissions. Given the current time constraints of 42
Pa.C.S. § 9545, a defendant’s first PCRA petition, where
the rule-based right to counsel unconditionally attaches,
may well be the defendant’s sole opportunity to seek
redress for such errors and omissions. Without the input
of an attorney, important rights and defenses may be
forever lost.
Commonwealth v. Robinson, 970 A.2d 455, 457-59 (Pa.Super. 2009) (en
banc) (setting standard to require Grazier colloquy, before petitioner
surrenders significant rule-based right to counsel in PCRA cases). See also
Pa.R.Crim.P. 904(C), (F)(2) (stating when unrepresented defendant shows
he is unable to afford or procure counsel, court shall appoint counsel to
represent defendant on first PCRA petition; appointment shall continue on
appeal from disposition of first PCRA petition).
Instantly, the record confirms Appellant is indigent. Appellant sought
to proceed pro se to litigate his first PCRA petition before the PCRA court.
Following a Grazier hearing, the court granted Appellant’s request and
permitted counsel to withdraw. The court ultimately denied PCRA relief on
December 15, 2014, and Appellant timely filed a pro se notice of appeal that
day. Importantly, Appellant’s notice of appeal expressly requested
appointment of counsel. Nevertheless, the PCRA court did not appoint
counsel or determine if Appellant wanted to waive his rule-based right to
counsel for this appeal. Therefore, the best resolution of this case is to
vacate and remand the case for further proceedings. Upon remand, the
court must conduct a full Grazier hearing, to determine if Appellant wants
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to proceed pro se on appeal. If the court is convinced Appellant wants to
proceed pro se, it can reinstate its order denying PCRA relief; and Appellant
can file a notice of appeal. If Appellant does not want to proceed pro se or
fails to demonstrate a valid waiver of counsel, then the court shall appoint
new counsel to assist Appellant on appeal, reinstate its PCRA order, and
Appellant can proceed with a counseled appeal. Accordingly, we vacate and
remand for further proceedings. See Robinson, supra at 460 (vacating
order denying PCRA relief, remanding for Grazier hearing, and relinquishing
jurisdiction; stating: “Once the appropriate proceedings are conducted, the
order denying PCRA relief can be reinstated, and Appellant, or his counsel,
can file an appeal”).
Order vacated; case remanded with instructions. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2016
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