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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 : : : : : : : : : 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, A ppellant 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. Appel lant 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 he ld a hearing on March 23, 2017, directed PCRA counsel to file an amended PCRA petition ,J

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and denied Appellant’s request for new counsel. On May 30, 2017, Appellant filed a pro se memorand um 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 becaus e 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 . O n August 28, 2017, PCRA counsel filed a motion to withdraw. On September 6, 2017, the court held a Grazier 1 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 re lief 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

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“ P ursuant to the rules of criminal procedure and interpr etive 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

_________________ __________ ______ ____ _______ 1 Commonwealth v. Grazier , 552 Pa. 9, 713 A.2d 81 (1998).J

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- derivation. In the post

- conviction setting, the defendant normally is seeking redress for trial co unsel’s errors and omissions. Given the current time constraints of [the PCRA] , a defendant’s first PCRA petition, where the rule

based 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

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. 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 App ellant 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 c onclude 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 , i t 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

_________________ __________ ______ ____ _______ 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.J

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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 b e 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