Com. v. O'Doherty, B., 1011 MDA 2017

Background

Appellant Brian J. O’Doherty was sentenced on November 30, 2015 after probation revocations to consecutive terms of 5–12 months at two dockets, for an aggregate 10–24 months (min. 9/30/2016; max. 11/30/2017).
On December 23, 2015 (before the direct-appeal period expired), O’Doherty filed a counseled motion seeking credit for time served; the trial court issued a Rule to show cause and denied the motion on January 22, 2016.
O’Doherty filed a pro se PCRA petition on June 16, 2017 seeking relief based on counsel’s ineffectiveness in litigating the time-credit motion and the legality of the sentence.
The PCRA court dismissed the petition as untimely and as an improper attempt to relitigate the time-credit issue, and noted O’Doherty had declined counsel without holding a Grazier hearing.
The Superior Court treated the June 2017 filing as O’Doherty’s first PCRA petition, concluded the PCRA court erred by not conducting a Grazier hearing before permitting a first-time petitioner to proceed pro se, vacated the dismissal, and remanded for further proceedings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the PCRA court properly dismissed pro se petition as untimely/merely relitigating time-credit motion	O’Doherty argued trial counsel was ineffective re: time-credit and sentence legality; sought PCRA review	PCRA court said issue already decided on merits by trial court and time served unrelated; dismissed as untimely	Superior Court vacated dismissal and remanded; treated petition as first PCRA and required proper procedural protections
Whether the December 23, 2015 time-credit motion equated to a PCRA petition	O’Doherty treated earlier filing as substantive collateral petition	Commonwealth/trial court treated it as a pre-final-judgment motion decided before finality	Court held the pre-appeal time-credit motion was not a PCRA petition because judgment was not then final
Whether the PCRA court had to conduct a Grazier hearing before permitting pro se representation	O’Doherty indicated he did not want counsel in his pro se PCRA petition	PCRA court accepted pro se status without holding a Grazier hearing	Court held that for a first-time PCRA petitioner who elects to proceed pro se, the court must conduct a Grazier hearing before permitting waiver of counsel
Whether the petitioner remains eligible for PCRA relief given sentence expiration dates	O’Doherty seeks relief while claiming still subject to sentence	Commonwealth relies on sentencing orders showing possible expiration Nov. 30, 2017	Court instructed PCRA court on remand to determine eligibility (serving sentence); if no longer serving, dismiss for lack of jurisdiction

Key Cases Cited

Commonwealth v. Martz, 926 A.2d 514 (Pa. Super. 2007) (trial court has inherent power to correct patent sentence mistakes)
Commonwealth v. Davis, 852 A.2d 392 (Pa. Super. 2004) (time-credit challenges implicate legality of sentence cognizable under PCRA)
Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super. 2007) (post-conviction relief framework: filings after finality are treated as PCRA petitions)
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (requirements for waiver of counsel and proceeding pro se)
Commonwealth v. Stossel, 17 A.3d 1286 (Pa. Super. 2011) (Grazier hearing required when first-time PCRA petitioner seeks to proceed pro se)
Commonwealth v. Turner, 80 A.3d 754 (Pa. 2013) (PCRA eligibility requires petitioner be currently serving sentence)
Commonwealth v. Ahlborn, 699 A.2d 718 (Pa. 1997) (PCRA petition must be denied if petitioner not serving a sentence)
Commonwealth v. Plunkett, 151 A.3d 1108 (Pa. Super. 2016) (PCRA relief unavailable once sentence fully served)
Commonwealth v. Robinson, 970 A.2d 455 (Pa. Super. 2009) (Grazier/Robinson considerations for waiver of counsel)
Commonwealth v. Smith, 818 A.2d 494 (Pa. 2003) (indigent first-time PCRA petitioners are entitled to counsel even if petition appears untimely)