Case Information

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA Appellee

v.

ARMONI M. JOHNSON,

Appellant No. 2092 MDA 2016

Appeal from the Order November 9, 2016 the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0002713-2011

BEFORE: BENDER, P.J.E., OTT, and STRASSBURGER,* JJ. FILED AUGUST 01, 2017

MEMORANDUM BY STRASSBURGER, J.: Armoni M. Johnson (Appellant) appeals from the November 9, 2016 order denied filed pursuant Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We vacate the remand for proceedings consistent with this memorandum.

In 2013, convicted of two counts of aggravated assault sentenced aggregate term 156 months imprisonment. This Court affirmed Appellant's judgment of sentence our Supreme Court denied petition for allowance of appeal. v. Johnson, 2015), appeal denied, A.3d 490

On April 2016, Appellant timely petition. order of May appointed Jeffrey A. as *Retired Senior Judge assigned to the Superior Court. and scheduled a hearing to take place on October 31, 2016. On July

21, 2016, Attorney Yelen a motion withdraw indicating that Appellant "has no claim under the therefore, case has no merit."1 Motion to Withdraw as Counsel, 7/21/2016, at ¶ 2. August 5, court scheduled hearing on counsel's motion also to take place on October 31, 2016.

The docket reflects was held on October 2016. Although the court cites notes of testimony from hearing, no transcript included the certified record. In opinion, the PCRA offered the following summary of the hearing:

At the held on October 2016[,] the [PCRA c]ourt first required Attorney state record his seeking withdrawal of review, findings and reason representation.

Thereafter, the court having independently reviewed [Appellant's] allegations the contents of Attorney Yelen's letter along with Yelen's reasons, granted Attorney Yelen's withdraw as counsel.

The indicated [Appellant] he could represent [Appellant] indicated that himself or hire independent counsel. he chose to represent himself ready to proceed to hearing.

The inquired as whether [Appellant] needed more time to proceed [Appellant] indicated he stood In the motion, indicated he attached no -merit letter as required by Turner, 544 A.2d 1988), and Commonwealth Finley, A.2d 213 1988) (en banc). Motion to Withdraw as Counsel, ¶ However, no letter is attached to the copy of the motion included the certified record.

- - submissions which he had previously filed and forwarded in support of his PCRA motion. PCRA Court Opinion, at (citations unnecessary capitalization as omitted). docketed on November PCRA court denied Appellant's petition. Appellant timely filed notice of appeal. The opinion February 2017.

It is not clear to us from Appellant's pro se brief what issues he wishes this Court review. As the Commonwealth aptly notes, Appellant's "appellate issues are raised in such confusing, rambling, incoherent fashion as be devoid of slightest discernibility." Commonwealth's Brief at 4. However, need not undergo the laborious task of attempting construe Appellant's claims, as it appears he has been denied his right to counsel.2 904 of Rules of Criminal Procedure requires the appointment for an indigent petitioner3 on his or her first petition. "[W]here indigent, first-time petitioner was denied to

counsel-or failed to properly waive right-this Court required to raise this error sua sponte remand for correct that mistake." Stossel, 1286, 1290 Super. Appellant, who appointed at trial has been incarcerated years, alleged indigency in petition. Petition, 4/12/2016, The court apparently determined indeed remained indigent, as it appointed represent him litigating his petition. Thus, although Appellant failed to allege indigency to proceed in forma pauperis appeal, this Court denied belated

- 3 - "This to representation exists throughout

Pa.R.Crim.P. 904(C). post -conviction proceedings[.]" Commonwealth Brown, 836 A.2d 997, 998 Super. 2003) (internal quotation marks citations omitted). Further, 908, which governs hearings, provides: "The judge shall permit the defendant to appear person at the hearing shall provide the defendant an opportunity to have counsel." Pa.R.Crim.P. 908(C) (emphasis added). Indeed, if evidentiary is required, the Rules mandate the appointment of counsel to represent criminal defendant even second or subsequent PCRA petition, where the defendant otherwise has no entitlement counsel. Pa.R.Crim.P. 904(D).

Here, the PCRA appears to have taken the mutually exclusive positions that (1) the claims Appellant wished make were devoid of merit,4 but (2) there were material issues of fact which be resolved before ruling upon the merits of Appellant's claims.5 In its opinion this Court, the explains that dismissal of Appellant's petition was proceed IFP without prejudice for Appellant seek relief the court, presume the purposes of this discussion that is indigent. ^[4] Before granting counsel's withdraw, "[t]he court... must conduct its own independent evaluation of the record agree with counsel" the issues which the petitioner wishes to raise lack merit. Rykard, Compare Pa.R.Crim.P. (providing court shall give notice of intent to dismiss without if it determines there are no issues material fact the defendant not entitled relief) with Pa.R.Crim.P. 908(A) (providing judge shall a hearing when the petition raises material issues fact).

warranted because he, acting pro se, failed to satisfy the evidentiary requirements necessary to support his claims of, inter a/ia, ineffective assistance of counsel violation Brady Maryland, U.S. 83 (1963). Court Opinion, This suggests that the PCRA of the opinion there may have been evidentiary showing which, if made, could have entitled Appellant relief. Under such circumstances, 908(C) required Appellant have opportunity to have counsel.

Therefore, we hold erred holding on Appellant's first after allowing counsel to withdraw. At the October 31, 2016 hearing, Appellant rule -based right the assistance attempting prove claims. Accordingly, remand case correct error by appointing prior to holding new Appellant's petition.6

Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished. If wishes to waive to counsel proceed pro se, the court must conduct an on -the -record colloquy pursuant Grazier, 81 (Pa. 1998), to ensure

waiver knowing voluntary.

Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 8/1/2017