J-S26030-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RAYMOND MCLAUGHLIN :
:
Appellant : No. 2770 EDA 2018
Appeal from the PCRA Order Entered September 11, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006564-2007
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.
JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED JUNE 17, 2019
Appellant, Raymond McLaughlin, appeals pro se from the order entered
in the Philadelphia County Court of Common Pleas, which dismissed as
untimely his first petition filed under the Post Conviction Relief Act (“PCRA”),
at 42 Pa.C.S.A. §§ 9541-9546. On May 8, 2008, Appellant entered a
negotiated guilty plea to attempted murder, burglary, recklessly endangering
another person, and kidnapping; and the court imposed the negotiated
aggregate sentence of 15 to 30 years’ imprisonment, concurrent to a federal
sentence Appellant was serving. Appellant did not file a direct appeal.
On December 6, 2017, Appellant filed a counseled first PCRA petition,
claiming his federal sentence had recently been reduced due to a change in
federal law, and seeking to reduce his state sentence based on the belief that
his federal and state sentences were to run “totally concurrent.” The court
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S26030-19
issued appropriate notice per Pa.R.Crim.P. 907 on August 10, 2018. Appellant
filed a counseled response on August 15, 2018. On September 11, 2018, the
court dismissed the petition as untimely and let counsel withdraw. Appellant
timely filed a pro se notice of appeal on September 22, 2018. The court did
not order, and Appellant did not file, a Pa.R.A.P. 1925(b) statement.
Preliminarily: “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.” Commonwealth v. Robinson, 970 A.2d 455, 457
(Pa.Super. 2009) (en banc).
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
omissions. Given the current time constraints of [the
PCRA], 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.
Id. at 458-59. See also Pa.R.Crim.P. 904(C), (F)(2) (stating indigent
defendant is entitled to counsel for litigation of first PCRA petition, including
on appeal); Commonwealth v. Williams, 167 A.3d 1 (Pa.Super. 2017)
(vacating and remanding where appellant did not receive appointment of
counsel through all stages of litigating first PCRA petition). Importantly,
“[a]n indigent petitioner is entitled to appointment of counsel on his first PCRA
-2-
J-S26030-19
petition, even where the petition appears untimely on its face.”
Commonwealth v. Perez, 799 A.2d 848, 851 (Pa.Super. 2002).
Instantly, Appellant retained private PCRA counsel, who represented
Appellant before the PCRA court. When the court dismissed the petition as
untimely, it allowed counsel to withdraw. Appellant claims he could not afford
to pay for counsel’s services on appeal. The record confirms Appellant is
indigent. As this is Appellant’s first PCRA petition, he is entitled to
appointment of counsel for appeal. See Pa.R.Crim.P. 904(C), (F)(2);
Robinson, supra; Williams, supra; Perez, supra. Under these
circumstances, the best resolution is to vacate and remand for the court to
conduct a full Grazier1 hearing. If the court is convinced Appellant wants to
proceed pro se on appeal, then the court can reinstate its PCRA order; and
Appellant can file a notice of appeal. If Appellant does not want to proceed
pro se or fails to show a valid waiver of counsel, then the court shall appoint
counsel for the appeal and reinstate its PCRA order; and Appellant can proceed
with a counseled appeal. See Robinson, supra (vacating order denying
PCRA relief, remanding for Grazier hearing, and relinquishing jurisdiction;
stating once appropriate proceedings are conducted, order denying PCRA relief
can be reinstated, and appellant or counsel can appeal).
Order vacated; case remanded. Jurisdiction is relinquished.
____________________________________________
1 Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).
-3-
J-S26030-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/17/19
-4-