J-S18042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DWAYNE HENRY
Appellant No. 165 EDA 2016
Appeal from the PCRA Order December 4, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0805831-2004
BEFORE: PANELLA, SOLANO, and FITZGERALD,* JJ.
JUDGMENT ORDER BY FITZGERALD, J.: FILED MARCH 23, 2017
Appellant, Dwayne Henry, appeals from an order dismissing his first
petition1 for relief under the Post Conviction Relief Act (“PCRA”). 2 We
remand this case for the PCRA court to conduct a hearing in accordance with
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
The PCRA court recounts the factual and procedural history of this case
as follows:
On June 22, 2004, at approximately 11:30 p.m., Appellant
. . . and another man, robbed William Sizemore at the
point of a shotgun and struck him in his face. Appellant
was arrested shortly thereafter.
*
Former Justice specially assigned to the Superior Court.
1
As discussed below, Appellant timely filed his first petition in 2009 and
amended it four times between 2009 and 2015.
2
42 Pa.C.S. §§ 9541-9546.
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On October 24, 2006, a jury trial commenced before the
Honorable Joseph A. Dych. Appellant was represented by
Troy Wilson, Esquire. On October 25, 2006, the jury found
Appellant guilty of robbery, possession of an instrument of
crime, and criminal conspiracy. On February 9, 2007,
Appellant was sentenced to seven and one-half . . . to
fifteen . . . years’ imprisonment.
On February 22, 2007, Appellant appealed to the Superior
Court, arguing that his sentence was excessive. On
August 7, 2008, the Superior Court affirmed the [t]rial
[c]ourt’s judgment of sentence. Our Supreme Court
denied Appellant’s Petition for Allowance of Appeal on April
15, 2009.
On June 15, 2009, Appellant filed a pro se PCRA Petition.
John Cotter, Esquire, was subsequently appointed to
represent Appellant. Mr. Cotter filed an Amended PCRA
Petition on February 4, 2010; he filed a Supplemental
Amended PCRA Petition on July 12, 2010. On June 15,
2011, Appellant filed a pro se “Motion to Waive Counsel
And Proceed Pro Se Due to Ineffectiveness And
Dishonesty.” On September 15, 2011, this [c]ourt
dismissed Appellant’s PCRA Petition and permitted Mr.
Cotter to withdraw as counsel.
On October 13, 2011, Appellant filed a pro se [n]otice of
[a]ppeal to the Superior Court from this Court’s dismissal
of his PCRA Petition. On November 23, 2011, Appellant
filed a pro se [m]otion for [a]ppointment of [c]ounsel with
the Superior Court. On July 24, 2012, the Superior Court
remanded with instructions; it directed this [c]ourt to
conduct a Grazier hearing to determine whether Appellant
wanted new counsel appointed to assist with his claims of
PCRA counsel’s ineffectiveness. On January 15, 2014, a
Grazier hearing was conducted, during which Appellant
unequivocally stated that he wanted Mark Mungello,
Esquire, who had been previously appointed by this
[c]ourt, to represent him in the PCRA matter.
Mr. Mungello filed a Third Amended PCRA Petition on
behalf of Appellant on February 21, 2014. Appellant
subsequently advised Mr. Mungello that the issues raised
in this [p]etition were not precisely correct. He asked Mr.
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Mungello to file a Fourth Amended PCRA Petition to include
all issues Appellant wished to raise. Per Appellant’s
request, Mr. Mungello filed a Fourth Amended PCRA
Petition on June 25, 2015. The Commonwealth filed a
Motion to Dismiss on September 27, 2015; this Court
granted the Commonwealth’s Motion on October 30, 2015
and issued a Pa.R.Crim.P. 907 notice. Appellant’s Fourth
Amended PCRA Petition was formally dismissed on
December 4, 2015.[3]
On December 7, 2015, Douglas P. Earl, Esquire, was
appointed to represent Appellant for purposes of appeal.
Despite having counsel of record, Appellant filed a pro se
[n]otice of [a]ppeal to the Superior Court on January 4,
2016.[4] On January 12, 2016, this Court ordered
Appellant to file a [c]oncise [s]tatement of [e]rrors
[c]omplained of on [a]ppeal pursuant to Pa.R.A.P. 1925(b)
within twenty-one days. Appellant filed a pro se 1925(b)
[s]tatement on February 12, 2016, eight days after the
specified deadline.
PCRA Ct. Op., 7/19/16, at 1-3. The PCRA court’s docket states that (1) on
March 17, 2016, Mr. Earl filed a motion to withdraw as counsel for Appellant;
and (2) on April 6, 2016, the PCRA court granted Mr. Earl’s motion to
withdraw without first holding a Grazier hearing. Neither of these
3
In the same order, the PCRA court dismissed Mr. Mungello as counsel for
Appellant.
4
The Rules of Appellate Procedure provide that the appellant must file his
notice of appeal within thirty days after a final order. See Pa.R.A.P. 903(a).
Here, however, the thirtieth day after the dismissal of Appellant’s petition,
January 3, 2016, fell on a Saturday. Therefore, Appellant timely filed his
appeal on Monday, January 4, 2016. See 1 Pa.C.S. § 1908 (when last day
of any period of time referred to in any statute falls on Saturday, Sunday, or
legal holiday, such day shall be omitted from computation).
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documents are in the certified record, so we cannot tell whether Mr. Earl’s
letter was a Turner/Finley5 “no merit” letter.
Appellant has filed a pro se brief and reproduced record in this Court,
and the Commonwealth has filed a responsive brief.
The Rules of Criminal Procedure and our case law nevertheless require
a full colloquy prior to allowing an appellant to proceed pro se if counsel has
not filed a Turner/Finley letter. See Pa.R.Crim.P. 121(A); Grazier, 713
A.2d at 82; Commonwealth v. Robinson, 970 A.2d 455, 460 (Pa. Super.
2009) (en banc) (“a colloquy [under Pa.R.Crim.P. 121(A)] must be held by
the PCRA court of its own accord . . . once the defendant has expressed a
desire to proceed pro se as long as PCRA counsel has not properly withdrawn
by complying with the dictates of Turner/Finley”). “When a waiver of the
right to counsel is sought at the post-conviction and appellate stages, an on-
the-record determination should be made that the waiver is a knowing,
intelligent, and voluntary one.” Grazier, 713 A.2d at 82.
Because the PCRA court did not conduct a Grazier hearing prior to
allowing Mr. Earl to withdraw as appellate PCRA counsel, we vacate the
PCRA court’s April 6, 2016 order and remand to the PCRA court for a
Grazier hearing as to whether Appellant’s decision to proceed pro se in this
appeal is knowing, intelligent and voluntary. The PCRA court shall hold the
5
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Grazier hearing and enter its decision within forty-five days of the date of
this order.
April 6, 2016 order vacated. Case remanded for further proceedings in
accordance with this memorandum. Panel jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2017
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Com. v. Henry, D.
Combined Opinion