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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN E. GAERTTNER
Appellant No. 1178 WDA 2015
Appeal from the PCRA Order May 18, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001418-2013
CP-25-CR-0001518-2013
CP-25-CR-0002301-2013
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED MAY 23, 2016
Appellant, John E. Gaerttner, appeals pro se from the May 18, 2015
order dismissing, without a hearing, his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
review, we are compelled to vacate the PCRA order and remand for further
proceedings.
We summarize the pertinent procedural history of this case as follows.
On January 8, 2014, Appellant entered guilty pleas pursuant to a plea
agreement at three dockets, to wit, driving while operating privilege is
suspended (DUI related) at CP-25-CR-0001418-2013, criminal mischief at
CP-25-CR-0001518-2013, and conspiracy to commit theft at CP-25-CR-
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0002301-2013.1 The plea agreement indicated that amounts for restitution
claimed at dockets CR-1518-2013 and CR-2301-2013 would be determined
at a restitution hearing. The sentencing and restitution hearings were
scheduled for March 26, 2014. N.T., 1/8/14, at 13-14. On that day,
Appellant failed to appear and the trial court proceeded to sentence
Appellant in abstentia. N.T., 3/26/14, at 4. The trial court imposed an
aggregate judgment of sentence of 30 to 60 months’ incarceration. The trial
court also received the Commonwealth’s evidence in support of restitution
and the trial court imposed an obligation for Appellant to pay restitution of
$10,400.00 at CR-1518-2013, and $1,500.00 at CR-2301-2013. Appellant
filed a motion for reconsideration of sentence on April 7, 2014, which the
trial court denied on April 10, 2014.2 Appellant did not file a direct appeal.
On January 16, 2015, Appellant filed a timely first pro se PCRA
petition. On January 23, 2015, the PCRA court appointed William J.
Hathaway, Esquire, to represent Appellant. On March 23, 2015, Attorney
Hathaway filed a document titled “Supplement to Motion for Post Conviction
Relief.” Therein, Attorney Hathaway included a section titled “Partial
Statement of No-Merit” and a section titled “Supplemental Statement in
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1
75 Pa.C.S.A. §1543(b)(1)(1.1)(i), Millcreek Township Ordinance §92-36(1),
18 Pa.C.S.A. §§ 3304(a)(5), and 903, respectively.
2
The 10th day following the judgment of sentence, April 5, 2014, fell on a
Saturday. Accordingly, Appellant’s post-sentence motion was timely filed on
Monday, April 7, 2014. See 1 Pa.C.S.A. § 1908.
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Support of Claim Possessed of Arguable Merit.” Supplement to Motion for
Post Conviction Relief, 3/23/15, at 4, 5 (pagination added). Attorney
Hathaway did not file a motion to withdraw. On April 16, 2015, the PCRA
court filed a notice of its intent to dismiss Appellant’s PCRA petition without a
hearing pursuant to Pennsylvania Rule of Criminal Procedure 907(1). A final
order dismissing Appellant’s PCRA petition was entered on May 18, 2015.
Appellant filed a pro se notice of appeal on June 5, 2015.3 The PCRA
court did not require Appellant to file a concise statement of errors
complained of on appeal under Pennsylvania Rule of Appellate Procedure
1925(b). The PCRA court filed a statement in compliance with Rule 1925(a)
wherein it referenced its April 16, 2015 notice of intent to dismiss as
containing the reasons for its decision. Counsel has not entered an
appearance with this Court and Appellant has filed a pro se brief in support
of his appeal.
This Court has long held that “a criminal defendant has a right to
representation of counsel for purposes of litigating a first PCRA petition
through the entire appellate process.” Commonwealth v. Robinson, 970
A.2d 455, 457 (Pa. Super. 2009) (en banc), appeal denied, 842 A.2d 406
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3
The record does not evidence compliance by the clerk of courts with
Pennsylvania Rule of Criminal Procedure 576(A)(4), which requires the clerk
of courts to time stamp any pro se filing by a represented defendant and
forward a copy of the same to defendant’s attorney and the attorney for the
Commonwealth. See Pa.R.Crim.P. 576(A)(4). Instantly, Appellant’s pro se
notice of appeal was time-stamped but not forwarded to Attorney Hathaway.
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(Pa. 2003). Appellant also is “entitled to a counseled amended petition and
representation before the PCRA court.” Commonwealth v. Figueroa, 29
A.3d 1177, 1182 (Pa. Super. 2011), appeal denied, 46 A.3d 715. Further,
“where an indigent, first-time PCRA petitioner was denied his right to
counsel—or failed to properly waive that right—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). “[I]n any case where a defendant seeks self-representation in a
PCRA proceeding and where counsel has not properly withdrawn, a
[Grazier4] hearing must be held.” Robinson, supra at 456.
Given the ambiguous and contradictory nature of PCRA counsel’s
March 23, 2015 “Supplement to Motion for Post Conviction Relief,” it is
unclear whether it was counsel’s intention to withdraw or to file an amended
PCRA petition. Because this raises a question of whether Appellant received
“a counseled amended petition and representation before the PCRA court,”
we conclude it is prudent to vacate the May 18, 2015 PCRA dismissal order
and remand for further proceedings. See Figueroa, supra.
Upon remand, the PCRA court shall ascertain the status of Appellant’s
representation. If Appellant expresses a desire to waive his right to counsel
and proceed pro se, the PCRA court shall conduct a Grazier hearing. See
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4
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988) (prescribing the
appropriate procedure and colloquy necessary to determine if a defendant’s
choice to proceed pro se is intelligent, knowing, and voluntary).
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Pa.R.Crim.P. 121(A). If the Grazier waiver standards are met, the PCRA
court shall permit Appellant to proceed pro se. If Appellant does not express
a desire to waive his right to counsel, or the Grazier waiver standards are
not met, the PCRA court shall ascertain what the intentions of PCRA counsel
were when filing his March 23, 2015, partial no-merit letter. The PCRA court
will then ensure that either a proper amended PCRA petition, or a no-merit
letter and petition to withdraw, in compliance with Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc) and their progeny, is filed. The PCRA court
shall then conduct a hearing, or issue a new Rule 907(1) notice of intent,
and proceed accordingly.
For all the foregoing reasons, we vacate the PCRA court’s May 18,
2015 order and remand for further proceedings consistent with this
memorandum.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2016
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