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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                                        :
                 v.                     :
                                        :
                                        :
CHESTER A. LATCHFORD, JR.,              :
                                        :
                 Appellant              :     No. 1580 MDA 2015

               Appeal from the PCRA Order August 31, 2015
           In the Court of Common Pleas of Cumberland County
            Criminal Division at No.: CP-21-CR-0000006-2010

BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY DUBOW, J.:                        FILED OCTOBER 28, 2016

     Appellant, Chester A. Latchford, Jr., appeals from the Order entered in

the Cumberland County Court of Common Pleas dismissing his first Petition

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

9546, as untimely.    Additionally, Appellant’s counsel, Linda S. Hollinger,

Esquire (“Attorney Hollinger”), has filed a Petition to Withdraw and an

accompanying no-merit letter pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc). After careful review, we are constrained to vacate

the PCRA court’s Order and remand for further proceedings.
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        On November 4, 2010, Appellant entered a negotiated guilty plea to

one count of Aggravated Indecent Assault.1        On March 8, 2011, the trial

court imposed the negotiated sentence of 5 to 10 years’ incarceration.

Appellant did not file a direct appeal. His Judgment of Sentence, therefore,

became final on April 7, 2011. See 42 Pa.C.S. § 9545(b)(3).

        Appellant filed the instant pro se PCRA Petition, his first, on July 29,

2015.     Appellant claimed that his sentence is excessive and illegal.     The

PCRA court did not appoint counsel, and the PCRA court did not conduct a

Grazier2 hearing to determine whether Appellant desired to represent

himself pro se.

        On August 6, 2015, the PCRA court issued a Pa.R.Crim.P. 907 Notice

advising Appellant of its intent to dismiss his Petition, noting Appellant did

not receive a mandatory minimum sentence and concluding it lacked

jurisdiction to consider Appellant’s underlying claim because the Petition was

untimely and Appellant failed to plead and prove a timeliness exception.

Appellant filed a pro se Response on August 20, 2015.

        On August 31, 2015, the PCRA court dismissed Appellant’s Petition

without a hearing. Appellant filed a pro se Notice of Appeal on September

11, 2015. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.



1
    18 Pa.C.S. § 3125.
2
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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     On October 28, 2015, this Court remanded this matter to determine

whether Appellant desired appointed counsel on appeal or desired to waive

this right pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).

On remand, the PCRA court appointed Attorney Hollinger following a Grazier

hearing to represent Appellant on appeal. Attorney Hollinger did not file an

Amended PCRA Petition or a Turner/Finley letter with the PCRA court. The

PCRA court conducted no further proceedings.

     On May 27, 2016, Attorney Hollinger filed with this Court a Petition to

Withdraw, and an accompanying Turner/Finley no-merit letter, asserting

that there were no non-frivolous issues to be raised on appeal. Appellant did

not respond to Attorney Hollinger’s Petition to Withdraw as Counsel.

     “Pennsylvania Rule of Criminal Procedure 904(A) mandates that a

judge must appoint counsel for an indigent defendant to represent the

defendant on    his   first   petition for   post conviction   collateral relief.”

Commonwealth v. Powell, 787 A.2d 1017, 1019 (Pa. Super. 2001). The

rules of criminal procedure and our case law require the PCRA court to

conduct a full colloquy prior to allowing an appellant to proceed pro se. See

Pa.R.Crim.P. 121(A); Grazier, supra; Commonwealth v. Robinson, 970
A.2d 455, 460 (Pa. Super. 2009) (en banc) (stating that “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




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PCRA counsel has not properly withdrawn by complying with the dictates of

Turner/Finley.”).

      Here, Appellant was not represented by counsel when he filed his first

PCRA Petition.   The PCRA court did not subsequently appoint counsel, as

required, and did not conduct a Grazier hearing before dismissing

Appellant’s pro se PCRA Petition without an evidentiary hearing.     Although

the PCRA court appointed counsel to represent Appellant in his appeal

pursuant to this Court’s October 28, 2015 remand, the court should have

appointed counsel immediately after receiving Appellant’s first PCRA Petition.

Pa.R.Crim.P. 904; Powell, supra. See also Commonwealth v. Tedford,

781 A.2d 1167, 1171 (Pa. 2001) (holding that “where an appellant files his

first PCRA Petition without the assistance of counsel, the appellant shall be

permitted to file an amended PCRA Petition with the assistance of counsel.”).

      For the foregoing reason, we vacate the PCRA court’s Order denying

PCRA relief and remand to the PCRA court for further proceedings consistent

with this memorandum.




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      Order vacated.      Petition to Withdraw denied.   Case remanded with

instructions. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/28/2016




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