J-S03028-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JUSTIN JAMES SCHILLING 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 573 WDA 2020

Appeal from the Order Entered May 11, 2020

In the Court of Common Pleas of Jefferson County Criminal Division at 

No(s): CP-33-CR-0000308-2011

COMMONWEALTH OF PENNSYLVANIA

v.

JUSTIN JAMES SCHILLING 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 574 WDA 2020

Appeal from the Order Entered May 7, 2020

In the Court of Common Pleas of Jefferson County Criminal Division at 

No(s): CP-33-CR-0000625-2017

BEFORE: DUBOW, J., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY MURRAY, J.: FILED: MARCH 18, 2021

In these consolidated appeals, Justin James Schilling (Appellant) 

appeals from the orders denying his pro se motion to vacate sentencing order 

and pro se motion for sentence modification. Because Appellant’s motions 

raise issues that are cognizable under the Post Conviction Relief Act (PCRA), 

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* Retired Senior Judge assigned to the Superior Court.
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42 Pa.C.S.A. §§ 9541-9546, we conclude the court erred by denying relief

without first appointing counsel. Therefore, we vacate the court’s orders and 

remand for further proceedings.

The details of Appellant’s underlying convictions are not pertinent. On 

October 5, 2011, Appellant pled guilty to theft by unlawful taking at docket 

CP-33-CR-308-2011 (CR 308). After conducting a pre-sentence investigation, 

the trial court sentenced Appellant to one to two years of incarceration, 

followed by two years of probation. 

After serving his sentence of incarceration and while on probation, 

Appellant was charged with burglary, theft, receiving stolen property and 

criminal mischief, docketed at CP-33-CR-625-2017 (CR 625). On February 7, 

2018, Appellant pled guilty to these crimes, and the trial court sentenced him 

to Drug and Alcohol Restrictive Intermediate Punishment, and ordered him to 

participate in Drug Court. That same day, the trial court also sentenced 

Appellant at CR 308 to one year of probation to run consecutive to his sentence 

at CR 625. 

On June 1, 2018, Appellant was arrested in Ohio where he was charged 

with additional crimes. As a result, the court convened a Gagnon I1 hearing, 

and found probable cause that Appellant had violated the terms of his 

supervision. On August 29, 2019, the court conducted a Gagnon II hearing. 

At the conclusion of the Gagnon II hearing, the court revoked Appellant’s 

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1 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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probation and re-sentenced him at both dockets to an aggregate 81⁄2 to 17 

years of incarceration. Appellant was RRRI eligible after 85 months and 

received credit for time served. 

On September 5, 2019, Appellant, who was represented by counsel,

filed a pro se motion for reconsideration, which the trial court denied the same 

day. On October 4, 2019, Appellant’s attorney filed a motion to withdraw as 

counsel, asserting that because the period to file a direct appeal had expired, 

he should be permitted to withdraw. The trial court granted counsel’s motion 

on October 7, 2019. 

In the year after Appellant’s judgment of sentence became final, 

Appellant filed numerous pro se pleadings that did not reference the PCRA, 

but sought relief that was only available under the PCRA. The trial court failed 

to treat these pleadings as PCRA petitions, and summarily denied them

without appointing counsel to represent Appellant or conducting a colloquy to 

determine whether Appellant wished to waive his right to counsel. 

Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011). 

In the two pro se pleadings underlying this appeal – Appellant’s motion 

to vacate sentencing order filed at CR 308 on May 7, 2020, and motion for 

sentence modification filed at CR 625 on May 4, 2020 – Appellant claimed he

received an illegal sentence. See Motion to Vacate Sentencing Order dated 

August 29, 2019, 5/7/20; Motion for Sentence Modification, 5/4/20; see also 

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“legality of 

sentence is always subject to review within the PCRA”).
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The trial court denied relief by orders dated May 11, 2020 and May 7, 

2020 respectively. Appellant appealed the denials on May 15, 2020, and May 

18, 2020. Both the trial court and Appellant have complied with Pennsylvania 

Rule of Appellate Procedure 1925.

On June 12, 2020, this Court consolidated the appeals sua sponte. The

same day, we issued a per curiam order remanding for the trial court to either 

appoint counsel for Appellant, or determine if Appellant was knowingly, 

intelligently, and voluntarily waiving his right to counsel under 

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

On July 1, 2020, the trial court informed this Court that it had conducted 

a Grazier hearing and appointed counsel to represent Appellant on appeal. 

Appellant, with the benefit of appellate counsel, now argues that the trial court 

“misapplied case law and should have accepted both the May 7, 2020 Motion 

to Vacate Sentencing Order Dated August 29, 2019 at CR 308 - 2011 and the 

May 4, 2020 Motion for Sentence Modification at CR 625 - 2017 as PCRA 

petitions.” Appellant’s Brief at 6. He further asserts:

Both the motion at CR 308 and at CR 625 should have been

regarded as PCRA petitions. [Appellant], then being pro se and 

very unschooled in any aspect of the law was denied the benefit 

of proper considerations of his motions. This Honorable Superior

Court can correct this injustice by now remanding these cases with

instruction to accept both motions as PCRA petitions and to have

counsel appointed.

Id. at 11.
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Appellant is correct. The law provides that a petitioner has an absolute 

right to counsel on his first PCRA petition, “regardless of the merits of his 

claim.” Commonwealth v. Lindsey, 687 A.2d 1144, 1145 (Pa. Super. 

1996); see also Pa.R.Crim.P. 904(C). “Where that right has been effectively 

denied by the action of court or counsel, the petitioner is entitled to a remand 

to the PCRA court for appointment of counsel to prosecute the PCRA petition.”

Commonwealth v. Kenney, 732 A.2d 1161, 1164 (Pa. 1999) (citation 

omitted); see also Commonwealth v. White, 871 A.2d 1291, 1294 (Pa. 

Super. 2005). “[W]here 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.” Commonwealth v. Tedford, 

781 A.2d 1167, 1170 (Pa. 2001) (citation omitted). “[T]he [PCRA] court’s 

power to dismiss a first PCRA petition must yield to the [a]ppellant’s rights to 

counsel.” Commonwealth v. Walker, 721 A.2d 380, 382 (Pa. Super. 1998).

The fact that the court conducted a colloquy to determine if Appellant 

was waiving his right to counsel on appeal does not excuse its failure to afford 

Appellant counsel to litigate his claims for PCRA relief. We have held, “where 

an indigent, first-time PCRA petitioner was denied his right to counsel - or 

failed to properly waive that right - this Court is required to raise this error 

sua sponte and remand for the PCRA court to correct that mistake.” 

Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011).
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Accordingly, we vacate the court’s orders and remand for the court to 

appoint PCRA counsel. If Appellant expresses a desire to litigate his petition 

pro se, the court shall conduct a Grazier hearing to ensure that his decision 

is knowing, intelligent, and voluntary.

Orders vacated. Case remanded for further proceedings. Jurisdiction 

relinquished.

Judge Dubow joins the memorandum.

Judge Strassburger did not participate.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/18/2021