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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDY BUXTON :
:
Appellant : No. 952 WDA 2022
Appeal from the PCRA Order Entered August 2, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0012834-2013
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY OLSON, J.: FILED: SEPTEMBER 19, 2023
Appellant, Andy Buxton, appeals from the order entered on August 2,
2022, dismissing his first petition pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we vacate and
remand for additional proceedings.
We briefly summarize the facts and procedural history of this case as
follows. On July 14, 2016, a jury convicted Appellant of one count of criminal
use of a communications facility, one count of corrupt organizations, three
counts of possession with intent to deliver heroin (“PWID”), three counts of
delivery of heroin, and three counts of simple possession of heroin.1 This
Court affirmed Appellant’s judgment of sentence on March 13, 2020. See
____________________________________________
1 18 Pa.C.S.A. § 7512(a), 18 Pa.C.S.A. § 911(b)(3), 35 P.S.
§ 780-113(a)(30), 35 P.S. § 780-113(a)(30), and 35 P.S. § 780-113(a)(16),
respectively.
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Commonwealth v. Buxton, 229 A.3d 346 (Pa. Super. 2020) (unpublished
memorandum). On December 31, 2020, our Supreme Court denied further
review. See Commonwealth v. Buxton, 243 A.3d 735 (Pa. 2020).
Appellant filed a timely pro se PCRA petition on December 17, 2021. On
June 28, 2022, the PCRA court filed notice of its intent to dismiss the petition
under Pa.R.Crim.P. 907. The PCRA court ultimately dismissed Appellant’s pro
se PCRA petition on August 2, 2022. Appellant filed a timely pro se notice of
appeal on August 16, 2022. On August 30, 2022, the PCRA court ordered
Appellant to file a pro se concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b) and Appellant complied timely. On appellate
review, however, this Court recognized that Appellant proceeded entirely
without the assistance of counsel during his first PCRA petition. Accordingly,
on September 23, 2022, we ordered the PCRA court to determine whether to
appoint counsel or colloquy Appellant pursuant to Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998) to determine if he knowingly, voluntarily,
and intelligently wished to continue to represent himself pro se. See Order,
9/23/2022, at *1, citing Pa.R.Crim. 904(C) (“[W]hen 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.”).
On September 29, 2022, the PCRA court ordered the Public Defender to
represent Appellant. On October 27, 2022, the PCRA court directed
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newly-appointed counsel for Appellant to file a Rule 1925(b) concise
statement. Counsel for Appellant complied timely and subsequently filed a
timely appellate brief with this Court raising the following issue for review:
1. Since [Appellant] was not appointed counsel for his first, timely
PCRA petition, should this Court remand the case to the lower
court for the appointment of new counsel who will file a new
[a]mended PCRA petition on [Appellant’s] behalf?
Appellant’s Brief at 5.
This Court has previously determined:
We review the denial of a PCRA [p]etition to determine whether
the record supports the PCRA court's findings and whether its
[o]rder is otherwise free of legal error. Commonwealth v.
Fears, 86 A.3d 795, 803 (Pa. 2014).
Defendants have a general rule-based right to the assistance of
counsel for their first PCRA [p]etition. Pa.R.Crim.P. 904(C);
Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super.
2009) (en banc) (stating, “a criminal defendant has a right to
representation of counsel for purposes of litigating a first PCRA
petition through the entire appellate process[ ]”). “The indigent
petitioner's right to counsel must be honored regardless of the
merits of his underlying claims, even where those claims were
previously addressed on direct appeal, so long as the petition in
question is his first.” Commonwealth v. Powell, 787 A.2d 1017,
1019 (Pa. Super. 2001) (citation omitted). “Moreover, once
counsel is appointed, he [or she] must take affirmative steps to
discharge his [or her] duties.” Id.
When appointed, counsel's duty is to either (1) amend the
petitioner's pro se [p]etition and present the petitioner's claims in
acceptable legal terms, or (2) certify that the claims lack merit by
complying with the mandates of [Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc)]. “If appointed counsel fails
to take either of these steps, our courts have not hesitated to find
that the petition was effectively uncounseled.” Powell, 787 A.2d
at 1019 (citation omitted).
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Commonwealth v. Cherry, 155 A.3d 1080, 1082–1083 (Pa. Super. 2017)
(original footnote incorporated).
Here, upon appeal following the denial of Appellant’s first PCRA petition,
we directed the PCRA court to appoint counsel to represent Appellant, which
it did. Appointed counsel, however, neither filed an amended PCRA petition
on Appellant’s behalf nor certified that Appellant’s claims lacked merit
pursuant to Turner/Finley. Appellant has not asked to proceed pro se and
the PCRA court did not conduct a Grazier hearing. As such, Appellant was
not afforded his right to the assistance of counsel on his first PCRA petition.
Accordingly, we are constrained to remand for additional proceedings. Upon
remand, and within 30 days of this decision, appointed PCRA counsel shall be
permitted to file an amended PCRA petition or comply with the dictates of
Turner/Finley.
Order vacated. Case remanded for additional proceedings consistent
with this decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2023
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