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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
DANIEL L. COLON, :
:
Appellant : No. 1399 MDA 2016
Appeal from the Order Entered July 26, 2016,
in the Court of Common Pleas of Snyder County,
Criminal Division, at No(s): CP-55-CR-2100030-2000
BEFORE: GANTMAN, P.J., SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 27, 2017
Daniel L. Colon (Appellant) appeals pro se from the July 26, 2016
order that denied his petition for a writ of habeas corpus. We vacate the
order and remand for further proceedings consistent with this memorandum.
In 2001, Appellant pled nolo contendere to drug charges and was
sentenced to an aggregate term of six to 30 years of imprisonment. This
Court affirmed his judgment of sentence on October 3, 2002, and our
Supreme Court denied his petition for allowance of appeal on June 24, 2003.
Commonwealth v. Colon, 815 A.2d 1124 (Pa. Super. 2002) (unpublished
memorandum), appeal denied, 825 A.2d 1259 (Pa. 2003).
Appellant took no further action until he filed a petition for writ of
habeas corpus on June 10, 2016. Therein, Appellant (1) claimed that he is
serving an illegal sentence based upon the application of an unconstitutional
*Retired Senior Judge assigned to the Superior Court.
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mandatory minimum provision, Petition, 6/10/2016, at ¶ 9; (2) stated that
his petition was not filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546, id. at ¶ 2; requested to proceed in forma
pauperis, id. at ¶ 12; forswore the appointment of counsel, id. at ¶ 13; and
asked to proceed pro se. Id.
After the Commonwealth filed an answer to the petition, the trial court
scheduled a hearing which Appellant attended via teleconference from state
prison. The trial court proceeded to the merits of Appellant’s claim,
determined that he had not been sentenced under a mandatory minimum
statute, and denied the petition. N.T., 7/26/2016, at 9-10.
Appellant timely filed a notice of appeal, and both Appellant and the
trial court complied with Pa.R.A.P. 1925.1 In his appellate brief, Appellant
argues that his sentence is illegal, and also makes a number of allegations
about the ineffectiveness of his plea counsel. Appellant’s Brief at 2.
Before we consider the substance of Appellant’s claims, we must
determine the proper framework for our review. The first principle of note is
that “the PCRA subsumes all forms of collateral relief, including habeas
corpus, to the extent a remedy is available under such enactment.”
1
Although Appellant’s concise statement of errors complained of on appeal
was filed more than 21 days after the order directing him to do so, it
appears from the record that it was timely filed under the prisoner mailbox
rule. See, e.g., Commonwealth v. Wilson, 911 A.2d 942, 944 (Pa.
Super. 2006) (indicating that under the prisoner mailbox rule, a document is
deemed to have been filed when it was placed in the hands of prison
authorities for mailing).
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Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007). Claims of an
illegal sentence and the ineffective assistance of counsel are cognizable
under the PCRA. Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa.
Super. 2011); 42 Pa.C.S. § 9543(a)(2)(ii), (vii). Accordingly, despite
Appellant’s protestations to the contrary, his habeas corpus petition should
have been treated as his first PCRA petition.
Second, “before the trial court disposes of a post conviction petition, it
must first make a determination as to the petitioner’s indigence and if the
petitioner is indigent, the court must appoint counsel to assist in the
preparation of said petition.” Commonwealth v. Hampton, 718 A.2d
1250, 1253 (Pa. Super. 1998) (quoting Commonwealth v. Van Allen, 597
A.2d 1237, 1239 (Pa. Super. 1991)) (emphasis omitted).
[I]f a PCRA defendant indicates a desire to represent himself, it
is incumbent upon the PCRA court to elicit information from the
defendant that he understands the items outlined in Pa.R.Crim.P.
121(A)(2)(a), (d), (e), and (f). A court must explain to a
defendant that he has the right to counsel, in accordance with
(a), that he is bound by the rules as outlined in (d), and that he
may lose rights, as indicated in (f). Subsection (e) must be
appropriately tailored so that a defendant is informed that “there
are possible defenses to these charges that counsel might be
aware of, and if these defenses are not raised [in a PCRA
petition], they may be lost permanently.”
Commonwealth v. Robinson, 970 A.2d 455, 459-60 (Pa. Super. 2009).
Here, the trial court opened the hearing with the following exchange
with Appellant:
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THE COURT: [Appellant], do you understand, sir, that you
do have the right to be represented by an attorney?
[APPELLANT]: Yes, I do, Your Honor.
THE COURT: Okay. Have you applied for any representation
by the Public Defender?
[APPELLANT]: No.
THE COURT: Do you wish to proceed in this matter with or
without an attorney?
[APPELLANT]: I will proceed without, Your Honor.
THE COURT: Okay. …
N.T., 7/26/2016, at 2.
Clearly, the trial court’s colloquy failed to satisfy all of the
requirements of Rule 121 as discussed in Robinson, 970 A.2d at 459-60.
Furthermore, the apparent untimeliness of Appellant’s petition does
not render harmless the failure to appoint counsel or to hold a proper waiver
colloquy. See, e.g., Commonwealth v. Smith, 818 A.2d 494, 501 (Pa.
2003) (“[A]n indigent petitioner, whose first PCRA appears untimely, is
entitled to the assistance of counsel in order to determine whether any of
the exceptions to the one-year time limitation appl[ies].”); Commonwealth
v. Kutnyak, 781 A.2d 1259, 1262 (Pa. Super. 2001) (holding it was error to
dismiss the PCRA petition before appointing counsel, “despite any apparent
untimeliness of the petition or the apparent non-cognizability of the claims
presented”).
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Thus, because “[t]he denial of PCRA relief cannot stand unless the
petitioner was afforded the assistance of counsel,” Commonwealth v.
Albrecht, 720 A.2d 693, 699 (Pa. 1998), remand is necessary for
appointment of counsel or a waiver colloquy that satisfies Pa.R.Crim.P. 121.
Order vacated. Case remanded for further proceedings consistent with
this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2017
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