J-A14015-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

SCOTT MIGNOGNA

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3890 EDA 2017

Appeal from the PCRA Order October 25, 2017

In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-09-CR-0000085-2015

BEFORE: GANTMAN, P.J., SHOGAN, J., and PLATT*, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED JULY 13, 2018

Appellant, Scott Mignogna, appeals pro se from the order entered in the 

Bucks County Court of Common Pleas, which denied his first petition per the 

Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. On March 

11, 2015, Appellant entered an open guilty plea to three counts of persons 

not to possess firearms. The court sentenced him on May 11, 2015, to 3 to 

10 years’ imprisonment. Appellant timely filed post-sentence motions, which 

the court denied on June 4, 2015. Appellant did not file a direct appeal. On 

June 6, 2016, Appellant timely filed a pro se PCRA petition. The court 

appointed counsel on August 12, 2016. On January 25, 2017, Appellant filed 

a pro se motion claiming PCRA counsel was ineffective for failing to file an 

amended PCRA petition, and seeking new counsel. The court held a hearing 

on March 23, 2017, directed PCRA counsel to file an amended PCRA petition,
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and denied Appellant’s request for new counsel. On May 30, 2017, Appellant 

filed a pro se memorandum of law regarding his claim that PCRA counsel was 

ineffective and renewing his request for new counsel. Appellant filed another 

pro se motion on July 17, 2017, to proceed pro se, again asserting PCRA 

counsel’s ineffectiveness and claiming Appellant was forced to proceed pro se

because the court refused to appoint new counsel. On July 26, 2017, the 

court directed PCRA counsel to file an amended PCRA petition by September 

8, 2017. On August 28, 2017, PCRA counsel filed a motion to withdraw. On 

September 6, 2017, the court held a Grazier1 hearing, let Appellant proceed 

pro se, and allowed counsel to withdraw. Appellant filed a pro se amended 

PCRA petition on September 11, 2017. The court held a PCRA hearing on 

October 25, 2017, and denied relief that day. Appellant timely filed a pro se

notice of appeal. On November 22, 2017, the court ordered Appellant to file 

a Pa.R.A.P. 1925(b) statement, which Appellant filed after an extension. 

“Pursuant to the rules of criminal procedure and interpretive case law, 

a criminal defendant has a right to representation of counsel for purposes of 

litigating a first PCRA petition through the entire appellate process.” 

Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa.Super. 2009) (en 

banc). 

While the right to legal representation in the PCRA context 

is not constitutionally derived, the importance of that right 

cannot be diminished merely due to its rule-based 

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1 Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998). 
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derivation. In the post-conviction setting, the defendant 

normally is seeking redress for trial counsel’s errors and 

omissions. Given the current time constraints of [the 

PCRA], a defendant’s first PCRA petition, where the rulebased right to counsel unconditionally attaches, may well be 

the defendant’s sole opportunity to seek redress for such 

errors and omissions. Without the input of an attorney, 

important rights and defenses may be forever lost.

Id. at 458-59. See also Pa.R.Crim.P. 904 (stating indigent defendant is 

entitled to counsel for litigation of first PCRA petition). 

Instantly, Appellant is indigent. He sought to proceed pro se only after 

repeated claims his PCRA counsel had failed to file an amended PCRA petition, 

and because the court would not appoint new counsel. Following a Grazier

hearing, the court allowed Appellant to proceed pro se and let counsel 

withdraw. The court denied PCRA relief on October 25, 2017, and Appellant 

timely appealed pro se. But the PCRA court did not determine if Appellant 

wanted to waive his rule-based right to counsel on appeal.2 We conclude the 

best resolution is to vacate and remand for further proceedings. Upon 

remand, the court must conduct a full Grazier hearing to determine whether

Appellant wants counsel on appeal. If the court is convinced Appellant wants 

to proceed pro se, it can reinstate its PCRA order; and Appellant can file a 

notice of appeal. If Appellant does not want to proceed pro se or fails to show

a valid waiver of counsel, then the court shall appoint new counsel for the 

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2 Notably, the PCRA court then deemed Appellant’s issues waived for a 

deficient Rule 1925(b) statement; Appellant’s brief also fails to comply with 

the Rules of Appellate Procedure. 
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appeal and reinstate its PCRA order; and Appellant can proceed with a 

counseled appeal. See Robinson, supra (vacating order denying PCRA relief, 

remanding for Grazier hearing, and relinquishing jurisdiction; stating once 

appropriate proceedings are conducted, order denying PCRA relief can be 

reinstated, and appellant or counsel can appeal). 

Order vacated; case remanded with instructions. Jurisdiction is 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/13/18