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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PAUL BENEDICT WOLF :
:
Appellant : No. 2033 MDA 2016
Appeal from the PCRA Order November 28, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007563-2011
BEFORE: BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED MAY 17, 2017
Paul Benedict Wolf appeals pro se from the order entered November
28, 2016, in the Court of Common Pleas of York County, that denied his
petition filed pursuant to the Pennsylvania Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541–9546. Based on the following, we vacate the PCRA
court’s order denying Wolf’s petition and remand for further proceedings
consistent with this memorandum.
On June 14, 2014, Wolf was found guilty by a jury of persons not to
possess, use, or control a firearm, prohibited offensive weapons, and
possession of drug paraphernalia.1 On February 21, 2014, the trial court
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 6105(a)(1) and 908(a), and 35 P.S. § 780-113(a)(32),
respectively.
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sentenced Wolf to an aggregate term of five to ten years’ incarceration. A
timely appeal was filed.
On April 10, 2014, Wolf filed a motion stating he wanted to proceed
pro se, and this Court, on April 16, 2014, directed the trial court to hold a
hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).2
On June 26, 2014, the court held a Grazier hearing and determined present
counsel at that time, Chris Moore, Esquire, would continue to represent Wolf
on appeal. On August 18, 2014, the court appointed Seamus Dubbs,
Esquire, and permitted Attorney Moore to withdraw. On October 13, 2015,
Wolf filed a pro se “motion for correction of sentence.”3 Thereafter, on
October 23, 2015, this Court affirmed the judgment of sentence. See
Commonwealth v. Wolf, 134 A.3d 106 (Pa. Super. 2015).4
Wolf filed a timely PCRA petition pro se on April 7, 2016, along with a
request for counsel. The PCRA petition alleged, inter alia, issues of
ineffectiveness of counsel, insufficiency of the evidence, and double
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2
See Grazier, 713 A.2d at 82 (holding when a waiver of the right to
counsel is sought, “an on-the-record determination should be made that the
waiver is a knowing, intelligent, and voluntary one”).
3
This motion was of no legal effect. See Commonwealth v. Ali, 10 A.3d
282, 293 (Pa. 2010) (explaining that a pro se filing presented by an
appellant represented by counsel is a “legal nullity”).
4
On October 19, 2016, the Pennsylvania Supreme Court denied Wolf’s
Petition for Leave to File Petition for Allowance of Appeal Nunc Pro Tunc.
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jeopardy. On April 13, 2016, Wolf filed a pro se motion for counsel outside
York County.
On August 26, 2016, the PCRA court denied “Defendant’s Motion.”
However, the court did not indicate that it was addressing Wolf’s PCRA
petition. The August 26, 2016, order only discussed the issue of whether
Wolf should have been subject to a single Crime Victim’s Compensation Fund
fee and Victim Witness Services Fund fee when he was sentenced on
February 21, 2014, at the above docket number and three other docket
numbers. See Order, 8/26/2016.
On November 14, 2016, Wolf filed a pro se motion to vacate his
sentence and proceed pro se. Wolf requested his sentence be vacated and
he be given a new trial or the court hold an evidentiary hearing to inquire
further into his allegations. By order dated November 23, 2016, and entered
November 28, 2016, the PCRA court denied “Defendant’s request for Post
Conviction Relief.” See Order, 11/28/2016.
On November 30, 2016, the court entered an “Order Regarding Motion
for Pro Se Entry of Appearance and Request for Video Conference,” which
appears to respond to requests in Wolf’s November 14, 2016 PCRA petition.
The November 30, 2016 order granted Wolf permission to proceed pro se
and denied his request for a video conference because the PCRA petition had
already been dismissed.
On December 12, 2016, Wolf filed a pro se notice of appeal from the
PCRA court’s November 28, 2016 order.
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Although the PCRA court, in its Pa.R.A.P. 1925(a) opinion issued in
support of its November 28, 2016 order, explained that it denied Wolf’s April
7, 2016 petition on August 26, 2016, and treated Wolf’s November 14,
2016, motion as a second PCRA petition,5 it does not appear that Wolf’s April
7, 2016, PCRA petition was ever addressed by the PCRA court. In any
event, the PCRA court never appointed counsel for Wolf for his first PCRA
petition or held a Grazier hearing.6
Pennsylvania Rule of Criminal Procedure 904(C) provides, in pertinent
part, that “when an unrepresented defendant satisfies the judge that the
defendant is unable to afford or otherwise procure counsel, the judge shall
appoint counsel to represent the defendant on the defendant’s first petition
for post-conviction collateral relief.” Pa.R.Crim.P. 904(C) (emphasis added).
See also Commonwealth v. Quail, 729 A.2d 571 (Pa. Super. 1999)
(indigent first-time PCRA petitioner is entitled to representation by counsel).
As a first-time PCRA petitioner, upon a showing of indigence, Wolf is
entitled to the appointment of counsel to represent him throughout the post-
conviction collateral proceedings, including any appeal from the disposition
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5
See PCRA Court Opinion, 2/6/2017, at 2.
6
We may raise the issue of the PCRA court’s failure to appoint counsel for a
first PCRA petition sua sponte. See Commonwealth v. Stossel, 17 A.3d
1286, 1290 (Pa. Super. 2011) (discussing the right of Superior Court to
address the appellant’s lack of counsel sua sponte in PCRA matter).
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of his first PCRA petition. See Pa.R.Crim.P. 904(C), (F)(2). Accordingly, we
vacate the PCRA court’s order and remand for the appointment of PCRA
counsel, or a Grazier hearing if Wolf wishes to proceed pro se.
Order vacated. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished. Wolf’s motion to quash any
appellee brief that may be submitted by the Commonwealth is dismissed as
moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2017
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