Com. v. Wolf, P.

Opinion

J-S33019-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : PAUL BENEDICT WOLF : : Appellant : No. 2033 MDA 2016

Appeal from the PCRA Order November 28, 2016 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0007563-2011

BEFORE: BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.: FILED MAY 17, 2017

Paul Benedict Wolf appeals pro se from the order entered November

28, 2016, in the Court of Common Pleas of York County, that denied his

petition filed pursuant to the Pennsylvania Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541–9546. Based on the following, we vacate the PCRA

court’s order denying Wolf’s petition and remand for further proceedings

consistent with this memorandum.

On June 14, 2014, Wolf was found guilty by a jury of persons not to

possess, use, or control a firearm, prohibited offensive weapons, and

possession of drug paraphernalia.1 On February 21, 2014, the trial court ____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. §§ 6105(a)(1) and 908(a), and 35 P.S. § 780-113(a)(32), respectively. J-S33019-17

sentenced Wolf to an aggregate term of five to ten years’ incarceration. A

timely appeal was filed.

On April 10, 2014, Wolf filed a motion stating he wanted to proceed

pro se, and this Court, on April 16, 2014, directed the trial court to hold a

hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).2

On June 26, 2014, the court held a Grazier hearing and determined present

counsel at that time, Chris Moore, Esquire, would continue to represent Wolf

on appeal. On August 18, 2014, the court appointed Seamus Dubbs,

Esquire, and permitted Attorney Moore to withdraw. On October 13, 2015,

Wolf filed a pro se “motion for correction of sentence.”3 Thereafter, on

October 23, 2015, this Court affirmed the judgment of sentence. See

Commonwealth v. Wolf, 134 A.3d 106 (Pa. Super. 2015).4

Wolf filed a timely PCRA petition pro se on April 7, 2016, along with a

request for counsel. The PCRA petition alleged, inter alia, issues of

ineffectiveness of counsel, insufficiency of the evidence, and double

____________________________________________

2 See Grazier, 713 A.2d at 82 (holding when a waiver of the right to counsel is sought, “an on-the-record determination should be made that the waiver is a knowing, intelligent, and voluntary one”). 3 This motion was of no legal effect. See Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010) (explaining that a pro se filing presented by an appellant represented by counsel is a “legal nullity”). 4 On October 19, 2016, the Pennsylvania Supreme Court denied Wolf’s Petition for Leave to File Petition for Allowance of Appeal Nunc Pro Tunc.

-2- J-S33019-17

jeopardy. On April 13, 2016, Wolf filed a pro se motion for counsel outside

York County.

On August 26, 2016, the PCRA court denied “Defendant’s Motion.”

However, the court did not indicate that it was addressing Wolf’s PCRA

petition. The August 26, 2016, order only discussed the issue of whether

Wolf should have been subject to a single Crime Victim’s Compensation Fund

fee and Victim Witness Services Fund fee when he was sentenced on

February 21, 2014, at the above docket number and three other docket

numbers. See Order, 8/26/2016.

On November 14, 2016, Wolf filed a pro se motion to vacate his

sentence and proceed pro se. Wolf requested his sentence be vacated and

he be given a new trial or the court hold an evidentiary hearing to inquire

further into his allegations. By order dated November 23, 2016, and entered

November 28, 2016, the PCRA court denied “Defendant’s request for Post

Conviction Relief.” See Order, 11/28/2016.

On November 30, 2016, the court entered an “Order Regarding Motion

for Pro Se Entry of Appearance and Request for Video Conference,” which

appears to respond to requests in Wolf’s November 14, 2016 PCRA petition.

The November 30, 2016 order granted Wolf permission to proceed pro se

and denied his request for a video conference because the PCRA petition had

already been dismissed.

On December 12, 2016, Wolf filed a pro se notice of appeal from the

PCRA court’s November 28, 2016 order.

-3- J-S33019-17

Although the PCRA court, in its Pa.R.A.P. 1925(a) opinion issued in

support of its November 28, 2016 order, explained that it denied Wolf’s April

7, 2016 petition on August 26, 2016, and treated Wolf’s November 14,

2016, motion as a second PCRA petition,5 it does not appear that Wolf’s April

7, 2016, PCRA petition was ever addressed by the PCRA court. In any

event, the PCRA court never appointed counsel for Wolf for his first PCRA

petition or held a Grazier hearing.6

Pennsylvania Rule of Criminal Procedure 904(C) provides, in pertinent

part, that “when 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.” Pa.R.Crim.P. 904(C) (emphasis added).

See also Commonwealth v. Quail, 729 A.2d 571 (Pa. Super. 1999)

(indigent first-time PCRA petitioner is entitled to representation by counsel).

As a first-time PCRA petitioner, upon a showing of indigence, Wolf is

entitled to the appointment of counsel to represent him throughout the post-

conviction collateral proceedings, including any appeal from the disposition

5 See PCRA Court Opinion, 2/6/2017, at 2. 6 We may raise the issue of the PCRA court’s failure to appoint counsel for a first PCRA petition sua sponte. See Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011) (discussing the right of Superior Court to address the appellant’s lack of counsel sua sponte in PCRA matter).

-4- J-S33019-17

of his first PCRA petition. See Pa.R.Crim.P. 904(C), (F)(2). Accordingly, we

vacate the PCRA court’s order and remand for the appointment of PCRA

counsel, or a Grazier hearing if Wolf wishes to proceed pro se.

Order vacated. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished. Wolf’s motion to quash any

appellee brief that may be submitted by the Commonwealth is dismissed as

moot.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/17/2017

-5-