Com. v. Thomas, J.

Opinion

J-S45012-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEROME THOMAS : : Appellant : No. 1323 MDA 2023

Appeal from the PCRA Order Entered July 19, 2023 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0005255-2021

BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.: FILED: MARCH 13, 2025

Appellant, Jerome Thomas, appeals pro se from the July 19, 2023 order

entered in the Court of Common Pleas of York County that denied his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9542-9546. After careful consideration, we vacate the July 19, 2023 order

and remand this case for further proceedings in accordance with this

memorandum.

The record reveals that, on May 24, 2022, Appellant pleaded guilty to

four counts of manufacture, delivery, or possession with intent to manufacture

or deliver a controlled substance (cocaine) (Counts 1 – 4), and one count each

of knowingly or intentionally possessing a controlled substance (cocaine)

(Count 6), use of, or possession with intent to use, drug paraphernalia

(Count 7), and criminal conspiracy to commit the offense of manufacture,

delivery, or possession with the intent to manufacture or deliver a controlled J-S45012-24

substance (Count 5).1 On July 20, 2022, the trial court imposed an aggregate

sentence of 5 to 10 years’ incarceration.2 Appellant did not appeal the

judgment of sentence. As such, his judgment of sentence became final on

August 19, 2022. See 42 Pa.C.S.A. § 9543(b)(3) (stating, “[a] judgment

becomes final at the conclusion of direct review, including discretionary review

in the Supreme Court of the United States and the Supreme Court of

Pennsylvania, or at the expiration of the time for seeking the review”); see

also Pa.R.A.P. 903(a) (requiring a notice of appeal to be filed within 30 days

after entry of an order from which an appeal is taken).

On November 1, 2022, Appellant filed pro se a motion for sentence

status consideration.3 In his motion, Appellant asked the trial court to modify

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1 35 P.S. §§ 780-113(a)(30) (4 counts), (a)(16), and (a)(32), as well as 18

Pa.C.S.A. § 903(a)(1), respectively.

2 On Count 1, Appellant was sentenced to 45 to 90 months’ incarceration. On Counts 2 and 3, Appellant was sentenced as to each count to 52 to 104 months’ incarceration. On Counts 4 and 5, Appellant was sentenced as to each count to 60 to 120 months’ incarceration. On Count 6, Appellant was sentenced to 18 to 36 months’ incarceration. On Count 7, Appellant was sentenced to 6 to 12 months’ incarceration. Each of Appellant’s sentences were set to run concurrently to each other. The aggregate sentence was 5 to 10 years’ incarceration. Appellant was credited for 287 days of time served (October 7, 2021, to July 20, 2022) and ordered to pay the costs of prosecution. Appellant was also found to be eligible for a state drug treatment program, the recidivism risk reduction incentive program, and boot camp. N.T., 7/20/22, at 23-25, 33-34.

3 Appellant’s pro se motion for sentence status consideration, which was dated

November 2, 2022, was timestamped as having been received by the PCRA court on November 4, 2022. The envelope that Appellant used to mail his

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his July 20, 2022 sentence so it would run concurrently with all previously

imposed sentences Appellant was serving, including any sentence Appellant

was ordered to serve for a parole violation.4 Motion for Sentence Status

Consideration, 11/4/22. The PCRA court treated Appellant’s pro se motion as

a PCRA petition, his first. See PCRA Court Opinion, 7/27/23, at 2 (stating,

Appellant “filed a pro se ‘motion for sentence status consideration’ which [the

PCRA] court treated as a timely first [PCRA] petition” (extraneous

capitalization omitted)). On November 22, 2022, the PCRA court appointed

counsel to represent Appellant and subsequently granted counsel an extension

to file an amended PCRA petition. PCRA Court Order, 11/22/22; see also

PCRA Court Order, 1/9/23. ____________________________________________

motion reveals a postage mark dated November 1, 2022. Therefore, pursuant to the “prisoner mailbox rule,” we deem Appellant’s motion to have been filed on November 1, 2022, the date on which Appellant deposited the motion in the prison mailbox as evidenced by the postage date. See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (explaining that, pursuant to the “prisoner mailbox rule,” a document is deemed filed on the date an inmate deposits the mailing with prison authorities or places it in the prison mailbox). The fact that Appellant dated the motion for November 2, 2022, is of no consequence, as the postmark demonstrates that the motion was deposited in the prison mailbox on the day prior.

Moreover, from here forward, we deem Appellant’s pro se filings to be filed on the date Appellant deposited the filing in the prison mailbox as evidenced by the postage mark date. Id.

4 At the time he committed the aforementioned criminal offenses, Appellant

was on parole for other drug-related convictions. His conviction of the aforementioned offenses constituted a parole violation, and Appellant was ordered to serve 18 months’ incarceration as back-time due to his parole violation. N.T., 7/20/22, at 10-11.

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On February 21, 2023, PCRA counsel filed a petition to withdraw as

counsel for Appellant. In his petition to withdraw, counsel stated that he sent

Appellant a Turner/Finley5 no-merit letter, which was also dated February

21, 2023. A copy of the Turner/Finley no-merit letter was attached to the

petition to withdraw. Petition to Withdraw, 2/21/23, at ¶7. In the

Turner/Finley no-merit letter, counsel outlined his review of the case,

ultimately concluding that Appellant’s request for collateral relief was of no

merit.6 Id. at Exhibit A. Counsel advised Appellant that, if the petition to

withdraw is granted, Appellant had the right to proceed pro se or with new

counsel. Id.

5 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); see also Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

6 In the Turner/Finley no-merit letter, PCRA counsel identified that the issue

Appellant sought to raise in his first PCRA petition (motion for sentence status consideration) was “to have the [trial c]ourt direct [] the Pennsylvania Board of Probation and Parole [to] run the sentence of 18 months[’] recommitment in [Appellant’s parole violation] case concurrent[ly] with the sentence in the present case[.]” Turner/Finley No-Merit Letter, 2/21/23, at 2 (unpaginated). PCRA counsel explained that Section 6138(5) of the Prisons and Parole Code stated that, “If a new sentence is imposed on the parolee, the service of the balance of the term originally imposed by a Pennsylvania court shall precede the commencement of the new term imposed [when] a person is paroled from a [s]tate correctional institution and the new sentence imposed on the person is to be served in [a s]tate correctional institution.” Id. at 3 (unpaginated), citing 61 Pa.C.S.A. § 6138(a)(5)(i). PCRA counsel opined that Appellant’s issue was, therefore, of no merit because “the Court of Common Pleas of York County has no authority to order such a directive that is contrary to Pennsylvania statutes relating to state parole and probation[.]” Turner/Finley No-Merit Letter, 2/21/23, at 3.

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That same day, February 21, 2023, Appellant filed pro se a motion

requesting a Grazier7 hearing. Appellant’s Pro Se Motion for Grazier Hearing,

2/21/23, at 1, 3 (unpaginated). In his motion, Appellant also raised a new

substantive claim, alleging that PCRA counsel was ineffective for failing to file

an amended PCRA petition that, in turn, asserted a claim of ineffective

performance by trial counsel for failure to challenge Appellant’s arrest and

seek a suppression of evidence. Id. at 2 (unpaginated). In Appellant’s view,

the police failed to obtain, and serve Appellant with, a valid arrest warrant

prior to his arrest, and the evidence seized as a result of executing the search

warrant was obtained as a result of Appellant being entrapped into selling

illegal contraband to a confidential informant. Id.

On February 23, 2023, the PCRA court scheduled an evidentiary hearing

on Appellant’s first PCRA petition. PCRA Court Order, 2/23/23. On March 2,

2023, the PCRA court entered a scheduling order, cancelling the hearing on

Appellant’s first PCRA petition.8 On March 7, 2023, the PCRA court granted

PCRA counsel’s petition to withdraw as counsel for Appellant. That same day,

the PCRA court provided Appellant with notice pursuant to Pennsylvania Rule

of Criminal Procedure 907 of its intent to dismiss his first PCRA petition without

a hearing within 20 days of the notice. Rule 907 Notice, 3/7/23. The Rule

7 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

8 The PCRA court explained that the PCRA evidentiary hearing was scheduled

in error. PCRA Court Order, 4/12/23.

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907 notice instructed Appellant that he had 20 days to file objections, if any,

to the Rule 907 notice. Id. Appellant filed two requests for an extension of

time to file an objection. On March 30, 2023, the PCRA court extended

Appellant’s deadline to file objections to the Rule 907 notice until May 1, 2023.

PCRA Court Order, 3/30/23.

In its March 30, 2023 order, the PCRA court also informed Appellant that

it was not aware of Appellant’s February 21, 2023 pro se motion requesting a

Grazier hearing until Appellant filed a motion for an extension of time to file

objections. Id. The PCRA court stated that it considered Appellant’s pro se

motion requesting a Grazier hearing to be a second PCRA petition. Id. The

PCRA court informed Appellant that it was unable to consider the second PCRA

petition because Appellant filed the petition pro se while represented by PCRA

counsel and such filings are “considered a nullity.” Id.

On April 6, 2023, Appellant filed pro se a “petition contesting

cancellation of PCRA notice of hearing without justification.” In his petition,

Appellant asserted, inter alia, that

[PCRA counsel] filed a [Turner/Finley no-merit] letter on [February] 21, 2023[, pertaining] to [Appellant’s first pro se PCRA petition,] which challenges trial counsel’s failure to ask [] the [trial c]ourt to run [Appellant’s] sentence concurrently with prior sentences of probation following [Appellant’s] recommitment, pursuant to 42 Pa.C.S.A. § 9761 and the ruling in Commonwealth v. Dorian, 460 A.2d 2232 [(]Pa. Super. 1983[)], but [PCRA] counsel claims there’s no merit to this claim. This is a false accusation by counsel, which is contrary to law and appellate decision.

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Appellant’s Pro Se Petition Contesting Cancellation of PCRA Notice of Hearing

without Justification, 4/6/23, at ¶1. On April 17, 2023, Appellant filed pro se

a motion to vacate the PCRA court’s March 30, 2023 order on the ground that

Appellant believed he was not represented by PCRA counsel at the time he

filed his pro se motion requesting a Grazier hearing (which the PCRA court

treated as a second PCRA petition) because PCRA counsel filed a motion to

withdraw. Appellant’s Pro Se Motion to Vacate Order, 4/17/23.

On July 19, 2023, the PCRA court denied Appellant’s first PCRA petition.9

PCRA Court Order, 7/19/23. On July 26, 2023, Appellant filed pro se a notice

of appeal challenging the July 19, 2023 order. On September 28, 2023, the

PCRA court appointed counsel to represent Appellant. The PCRA court also

directed Appellant to file a concise statement of errors complained of on appeal

9 In its July 19, 2023 order, the PCRA court stated it denied Appellant’s petition

for the reasons set forth in the opinion attached to the order. An opinion was not attached to the July 19, 2023 order.

On July 27, 2023, the PCRA court issued a second order denying Appellant’s petition, this time with an opinion explaining its decision. The PCRA court did not vacate its July 19, 2023 order.

We find that the July 19, 2023 order is the order denying Appellant’s PCRA petition. The second order entered on July 27, 2023 is, therefore, moot. The opinion attached to the July 27, 2023 order, however, sets forth the rationale for the PCRA court’s denial of Appellant’s petition and may be considered.

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pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) or an Anders

brief.10 PCRA Court Order, 9/28/23.

On October 17, 2023, Appellant filed pro se, inter alia, a request for a

Grazier hearing, asking the PCRA court to permit him to proceed pro se in his

appeal challenging the July 19, 2023 order denying his PCRA petition. The

PCRA court conducted a Grazier hearing on December 4, 2023. At the

conclusion of the Grazier hearing, the PCRA court granted Appellant’s request

to proceed pro se, finding that Appellant made a “knowing, voluntary, and

intelligent waiver [of] his right to counsel.” PCRA Court Order, 12/4/23. The

PCRA court informed Appellant that he had 21 days to file a Rule 1925(b)

statement. Id. The record does not reveal that Appellant filed a Rule 1925(b)

statement. On January 3, 2024, the PCRA court filed its Rule 1925(a) opinion.

Appellant raises pro se the following issues for our review:11

[1.] Whether the [] PCRA court erred in not finding PCRA counsel ineffective for [failing to raise a claim of] trial counsel’s ineffective assistance of counsel for failure to [challenge] Appellant’s [award of credit for time served]?

[2.] Whether the [] PCRA court erred [] in not finding PCRA counsel ineffective for [failing to raise a claim of] trial

10 Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).

11 We note that, in a July 18, 2024 per curiam order, this Court, upon granting

an extension of time, ordered Appellant to file his appellate brief on or before September 20, 2024. Per Curiam Order, 7/18/24. Appellant filed his appellate brief on September 30, 2024.

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counsel’s ineffective assistance of counsel for failure to [challenge] the defective arrest warrant?

[3.] Whether the [] PCRA court erred in not finding PCRA counsel ineffective for [failing to raise a claim of] trial counsel’s ineffective assistance of counsel for failure to [challenge] the trial court’s failure to [first assess] whether Appellant could pay the court fines imposed?

[4.] Whether the [] PCRA court erred in not finding PCRA counsel ineffective for [failing to raise a claim of] trial counsel’s ineffective assistance of counsel for failure [to challenge the] defective guilty plea colloquy?

Appellant’s Brief at 4 (extraneous capitalization omitted).

As a prefatory matter, we must examine the procedural posture of the

case sub judice as it implicates our jurisdiction to consider Appellant’s claims.

See Forrester v. Hanson, 901 A.2d 548, 545 (Pa. Super. 2006) (stating, an

issue of jurisdiction may be raised by this Court sua sponte). Here, the record

reveals that Appellant was sentenced on July 20, 2022, and because Appellant

did not seek an appeal, his judgment of sentence became final on August 19,

2022. See 42 Pa.C.S.A. § 9543(b)(3); see also Pa.R.A.P. 903(a).

As discussed supra, on November 1, 2022, Appellant filed pro se a

“motion for sentence status consideration,” which the PCRA court treated as

Appellant’s first PCRA petition. In his motion, Appellant asked the trial court

to modify the aforementioned sentence so the newly-imposed sentence would

run concurrently to any sentence Appellant was then serving or any sentence

Appellant received for violating his parole, which was triggered by his

conviction in the case sub judice. Appellant’s objective in filing the motion

was to shorten his release date after serving all sentences. Motion for

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Sentence Status Consideration, 11/1/22. The essence of Appellant’s motion

was a request for an illegal sentence. If the trial court imposed a new sentence

in the case sub judice that was set to run concurrently to the sentence

Appellant received as a result of violating his parole, the newly-imposed

sentence would violate Section 6138(5) of the Prisons and Parole Code. See

61 Pa.C.S.A. § 6138(a)(5)(i) (requiring a state parolee to serve the back-time

on a parole violation resentence before serving a new sentence that is to be

served in a state correctional institution, thus, negating a sentencing court’s

authority to impose a sentence that would run concurrently with a parole

violation resentence).

Our first inquiry is whether Appellant’s motion for sentence status

conference constituted a PCRA petition. It is well-settled that “the PCRA is

intended to be the sole means of achieving post-conviction [collateral] relief.”

Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013). If an issue

is cognizable under the PCRA, the issue must be raised in a timely PCRA

petition. Id. at 465-466. Regardless of how a petition is titled, courts are to

treat a petition filed after a judgment of sentence becomes final as a PCRA

petition if it requests relief contemplated by the PCRA. Commonwealth v.

Wrecks, 934 A.2d 1287, 1289 (Pa. Super. 2007); see also Commonwealth

v. Torres, 223 A.3d 715, 716 (Pa. Super. 2019) (stating, “so long as a

pleading falls within the ambit of the PCRA, the [PCRA] court should treat any

pleading filed after the judgment of sentence is final as a PCRA petition”

(citation omitted)); Commonwealth v. Hromek, 232 A.3d 881, 884

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(Pa. Super. 2020) (affirming the Wrecks’ holding that regardless of how a

filing is titled, a petition should be treated as filed under the PCRA if it is filed

after the judgment of sentence becomes final and seeks relief provided under

the PCRA).

A request for sentencing relief that implicates a trial court’s authority to

grant the requested sentencing relief compared to a trial court’s discretionary

sentencing powers fits within the broader definition of a legality of sentence

claim cognizable under the PCRA. See Commonwealth v. Prinkey, 277

A.3d 554, 561 (Pa. 2022) (stating, “where the sentencing court’s authority to

act has been infringed upon, the sentence is ‘illegal’ for issue-preservation

purposes” (citation and quotation marks omitted)); see also

Commonwealth v. Burton, 290 A.3d 706, 2022 WL 17986518, at *8

(Pa. Super. 2022) (unpublished memorandum); Commonwealth v. Fahy,

737 A.2d 214, 223 (Pa. 1999) (stating that, a timely challenge to the “legality

of [a] sentence is always subject to review within the PCRA”);

Commonwealth v. Foster, 17 A.3d 332, 344-345 (Pa. 2011) (stating that,

when a trial court’s “inherent, discretionary authority to wield its statutorily

prescribed sentencing powers [has been] supplanted, abrogated, or otherwise

limited,” a defendant’s challenge to a mandated sentencing feature implicates

the legality of that sentence).

In his motion for sentence status conference, Appellant asked the trial

court to modify the aforementioned sentence so the newly-imposed sentence

would be set to run concurrently with the back-time Appellant was serving on

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his sentence for revocation of parole. If Appellant were granted the

sentencing relief he requested, the new sentence would result in an illegal

sentence because under Section 6138(a)(5)(i) of the Prisons and Parole Code,

a trial court would not have the inherent authority to impose a concurrent

sentence under Appellant’s circumstances. See 61 Pa.C.S.A. § 6138(a)(5)(i).

Therefore, we find that because Appellant’s motion for sentence status

conference implicated the trial court’s authority to impose a sentence,

Appellant’s motion involves an illegal sentence claim cognizable under the

PCRA. As such, we concur with the PCRA court that Appellant’s motion for a

sentence status conference was a PCRA petition.

We cannot, however, concur with the PCRA court that Appellant’s

subsequent pro se motion requesting a Grazier hearing was a second PCRA

petition, for which the PCRA court lacked jurisdiction to address. See PCRA

Court Opinion, 7/27/23, at 3; see also PCRA Court Order, 3/30/23. The

purpose of a Grazier hearing is to allow a trial court to make an on-the-record

determination as to whether, or not, a defendant intended to waive his or her

right to counsel knowingly, intelligently, and voluntarily. Grazier, 713 A.2d

at 82. A request for a Grazier hearing does not request relief cognizable

under the PCRA. See generally, 42 Pa.C.S.A. § 9543(a)(2). Because a

request for a Grazier hearing does not fall within the ambit of the PCRA,

Appellant’s motion requesting the same was incorrectly determined to be a

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PCRA petition.12 Instead of treating the motion as a second PCRA petition,

the PCRA court was required to conduct a Grazier hearing to determine

whether, or not, Appellant intended to knowingly, intelligently, and voluntarily

waive his right to counsel on his first PCRA petition. Because the PCRA court

did not act upon Appellant’s request and conduct a Grazier hearing, we are

constrained to vacate the PCRA court’s July 19, 2023 order denying Appellant’s

petition. We remand this case so the PCRA court can conduct a proper

Grazier hearing and determine whether, or not, Appellant intended to

knowingly, intelligently, and voluntarily waive his right to counsel on his first

PCRA petition.13

12 The fact that Appellant’s motion requesting a Grazier hearing included allegations of PCRA counsel’s ineffectiveness did not require the PCRA court to treat Appellant’s motion as a PCRA petition. Our Supreme Court in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021) stated that a petitioner may raise claims of PCRA counsel’s ineffectiveness at the first opportunity to do so, even if on appeal. Bradley, 261 A.3d at 401.

13 We are cognizant that, on December 4, 2023, the PCRA court conducted a

Grazier hearing and determined that Appellant knowingly, voluntarily, and intelligently waived his right to counsel for purpose of his appeal. The December 2023 Grazier hearing, and the PCRA court’s determination therein, does not, however, satisfy the PCRA court’s obligation to conduct a Grazier hearing to determine if Appellant intended to knowingly, voluntarily, and intelligently waive his right to counsel for purpose of pursuing the issues raised in Appellant’s first PCRA petition.

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Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 3/13/2025

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