Com. v. Baylor, T.

Opinion

J-S10014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

TROY BAYLOR

Appellant No. 50 EDA 2015

Appeal from the PCRA Order December 15, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007889-2009

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

JUDGMENT ORDER BY GANTMAN, P.J.: FILED JANUARY 20, 2016

Appellant, Troy Baylor, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas, which denied his first petition

filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546. On February 12, 2010, a jury convicted Appellant of corrupt

organizations, theft by deception, conspiracy to commit theft, forgery, and

tampering with public records. The court sentenced him on April 30, 2010,

to an aggregate term of 9-20 years’ imprisonment, plus 7 years’ probation.

On May 23, 2012, this Court affirmed the judgment of sentence. See

Commonwealth v. Baylor, 50 A.3d 247 (Pa.Super. 2012). Appellant

timely filed pro se his first and current PCRA petition on April 2, 2013, and

an amended petition on November 25, 2013. Counsel entered his

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*Retired Senior Judge assigned to the Superior Court. J-S10014-16

appearance on December 19, 2013. On January 28, 2014, Appellant asked

to proceed pro se. The court conducted a Grazier1 hearing on March 27,

2014, after which it permitted Appellant to proceed pro se and counsel to

withdraw. Appellant filed amended PCRA petitions on April 14, 2014, and

June 10, 2014. On November 14, 2014, the court issued notice per

Pa.R.Crim.P. 907. Appellant responded on December 10, 2014. On

December 15, 2014, the court denied PCRA relief. Appellant timely filed a

pro se notice of appeal that day and requested appointment of counsel for

the appeal. On March 6, 2015, the court ordered Appellant to file a

Pa.R.A.P. 1925(b) statement; Appellant pro se timely complied.

As a significant, prefatory matter, Appellant’s current pro se status

presents a question of whether Appellant was effectively deprived of his

rule-based right to counsel on this appeal.

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. …

* * *

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 ____________________________________________

1 Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998) (holding court must determine on record that indigent defendant wants to proceed pro se, to ensure waiver of counsel is knowing, intelligent and voluntary).

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omissions. Given the current time constraints of 42 Pa.C.S. § 9545, 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.

Commonwealth v. Robinson, 970 A.2d 455, 457-59 (Pa.Super. 2009) (en

banc) (setting standard to require Grazier colloquy, before petitioner

surrenders significant rule-based right to counsel in PCRA cases). See also

Pa.R.Crim.P. 904(C), (F)(2) (stating when unrepresented defendant shows

he is unable to afford or procure counsel, court shall appoint counsel to

represent defendant on first PCRA petition; appointment shall continue on

appeal from disposition of first PCRA petition).

Instantly, the record confirms Appellant is indigent. Appellant sought

to proceed pro se to litigate his first PCRA petition before the PCRA court.

Following a Grazier hearing, the court granted Appellant’s request and

permitted counsel to withdraw. The court ultimately denied PCRA relief on

December 15, 2014, and Appellant timely filed a pro se notice of appeal that

day. Importantly, Appellant’s notice of appeal expressly requested

appointment of counsel. Nevertheless, the PCRA court did not appoint

counsel or determine if Appellant wanted to waive his rule-based right to

counsel for this appeal. Therefore, the best resolution of this case is to

vacate and remand the case for further proceedings. Upon remand, the

court must conduct a full Grazier hearing, to determine if Appellant wants

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to proceed pro se on appeal. If the court is convinced Appellant wants to

proceed pro se, it can reinstate its order denying PCRA relief; and Appellant

can file a notice of appeal. If Appellant does not want to proceed pro se or

fails to demonstrate a valid waiver of counsel, then the court shall appoint

new counsel to assist Appellant on appeal, reinstate its PCRA order, and

Appellant can proceed with a counseled appeal. Accordingly, we vacate and

remand for further proceedings. See Robinson, supra at 460 (vacating

order denying PCRA relief, remanding for Grazier hearing, and relinquishing

jurisdiction; stating: “Once the appropriate proceedings are conducted, the

order denying PCRA relief can be reinstated, and Appellant, or his counsel,

can file an appeal”).

Order vacated; case remanded with instructions. Jurisdiction is

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/20/2016

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