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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. MARK ANTHONY NATICCHIONE , Appellant :

: : : : : : : : : IN THE SUPERIOR COURT

OF PENNSYLVANIA

No. 1637 EDA 2017
Appeal from the Judgment of Sentence April 21, 2017 i n the Court of Common Pl eas of Bucks County Criminal Divi sion at No(s): CP

- 09

- CR

- 0006877

- 2016 BEFORE: SHOGAN , J., NICHOLS , J. and STRASSBURGER, J.* MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 16, 2019 Mark Anthony Naticchione (Appellant) appeals pro se from his judgment of sentence imposed on April 21, 2017 , after a jury found him guilty of escape. Upon review, we vacate Appellant’s judg ment of sentence and remand for proceedings consistent with this memorandum

. During his April 20 to 21, 2017 jury trial, Appellant was represented by appointed counsel, Attorney Daniel Schatz. On April 21, 2017, Appellant was found guilty of escape, and the case proceeded directly to sentencing the same day. The trial court sentenced Appellant , in excess of the aggravatedJ

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range , to 42 months to seven years of incarceration. 1 Th e trial court also ordered that Appellant be given credit for time served. Appellant , through Attorney Schatz, timely filed a motion for reconsideration of his sentence, arguing that his sentence was excessive. Motion for Reconsideration of Sentence, 5/1/ 2017. That motion was denied on May 5, 2017. On May 18, 2017, Appellant pro se filed a notice of appeal to this Court. 2
On Jun e 12, 2017, the trial court ordered Appellant to file a concise statement of errors complained of on ap peal pursuant to Pa.R.A. P. 1925. On June 30, 2017, Attorney Schatz filed notice of intention to file an Anders / McClendon brief pursuant to Pa.R.A.P. 1925(c)(4). 3 O n July 10, 2017, the trial court wrote a letter to the Clerk of Courts of Bucks County, which stated the following. Appellate Counsel has reviewed the record and has determined that there are no meritorious issues to support an appeal. Pursuant to Pa.R.A.P. 1925(c)(4), counsel has filed a statement of intent to file an Anders / McClendon brief with the Superior Court in lieu of a Concise Statement of Matters Complained of on Appeal. Please forward the complete record to the Superior Court f or review.

_________________ __________ ______ ____ _______ 1 According to the t rial court, the standard range wa s 34 to 36 months of incarcera tion, and the aggravated range wa s 39 months of i ncarceration. N.T., 4/21/2017, at 82.

2 A pro se notice of appeal is an exception to the general rule prohibiting hybrid representation. See Commonwealth v. Williams , 151 A.3d 621 (Pa. Super. 2016) (citing 210 Pa. Code § 65.24).

3 See Ande rs v. California , 386 U.S. 738 (1967) , and Commonwealth v. McClendon , 434 A.2d 1185 (Pa. 1981).J

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Letter, 7/10/2017. The Clerk of Courts complied with the trial court’ s directive and transmitted the record to this Court. On July 20, 2017, Appellant pro se filed an application with this Court to proceed pro se . On August 25, 2017, this Court entered an order directing the t rial court “to conduct an on

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- record determination as to whether the Appellant’s waiver of counsel is knowing, intelligent and voluntary pursuant to Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1988), and to provide written notice of its determination to the Prothonotary of this Court within sixty [] days.” Per Curiam Order, 8/25/2017. The trial court scheduled a Grazier hearing for October 20, 2017. At that hearing, Appellant stated that although he did not wish to represent himself, he did not agree with Attorney Schatz’s position that there was no
merit to t he issues he wished to raise on appeal. N.T., 10/20/2017, at 4. The trial court explained to Appellant that Attorney Schatz fulfilled his obligations by filing his statement of intent to file an Anders brief. Id . at 5. The trial court stated that if Att orney Schatz were to continue to represent Appellant, he would file a brief stating the issues do not have merit, and then it would be up to the Superior Court to review the issues. Id . at 6. Appellant maintained that he did not wish for Attorney Schatz t o represent him. Id

. Appellant stated that he wished to proceed “on [his] own” because Attorney Schatz “is not helping” him. Id . at 7. According to Appellant, “ [t] hat’s the only reason why [he is] going to proceed on [his] own.” Id . at 7

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trial court elected not to colloquy Appellant regarding his waiver of counsel. The trial court gave Appellant two options: (1) proceed with Attonrey Schatz, who would file an Anders brief, or (2) proceed pro se . Id . at 10. Appellant chose to proceed pro se . Id . at 11. Based on the foregoing, the trial court entered an order concluding that Appellant’s decision to proceed pro se “is knowing, intelligent and voluntary.” Trial Court Order, 10/20/2017. Subsequently, Appellant filed pro se an amended conci se statement of errors complained of on appeal. Appellant suggested that ( 1) his sentence is illegal because the trial court did not make a determination as to Appellant’s eli gi bility for the Recidivism Risk Reduction Incentive ( RRRI ) program, 4 ( 2) the tr ial court abused its discretion by sentencing Appellant in excess of the aggravated range, and ( 3) the trial court erred by not calculating his credit for time served in a proper manner. Amended Concise Statement, 5/9/2018. T he trial court authored an opi nion in response, where it did not address Appellant’s RRRI

- related claim, but did address the other issues and concluded Appellant was not entitled to relief. On October 7, 2018, the trial court authored an amended opinion wherein it agreed with Appellan t that his sentence was illegal because the court “did not make a determination as to [Appellant’s] eligibility under the RRRI Act as required.” Supplemental Opinion, 10/7/2018, at 1. Moreover, according to the trial court, “[t]he record developed at the time [the] sentence was imposed is not sufficiently clear to

_________________ __________ ______ ____ _______ 4 See 61 Pa.C.S. §§ 4501

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establish whether Appellant would be an ‘eligible offender’ under 61 Pa.C.S. § 4503.” Id

. Thus, the trial court now requests “that the matter be remanded for purposes of resentencing in accordance with [s ub ]ection 4505(a).” Id

. On appeal, Appellant advances the same three issues he set forth in his amended concise statement. Under normal circumstances, we would first determi ne whether Appellant is properly proceeding pro se . However, because the trial court and the Commonwealth 5 have requested we vacate Appellant’s sentence and remand for a new sentencing hearing due to the
RRRI

- related issue, we will first address that issu e. It is well settled that at the time of sentencing, the trial court must make a determination as to a defendant’s RRRI eligibility. See 61 Pa.C.S. § 4505(a); 42 Pa.C.S. § 9756; Commonwealth v. Robinson , 7 A.3d 868, 871 (Pa. Super. 2010). Here, the tria l court and Commonwealth concede this did not occur, and our review of the sentencing transcript confirms the omission. Accordingly, we vacate Appellant’s judgment of sentence and remand for a new sentencing hearing. Having concluded that Appellant is en titled to a new sentencing hearing, we also conclude that the trial court shall appoint new counsel, not Attorney Schatz, to represent Appellant. It is clear that Appellant wished to have counsel for his appeal, but disagreed with Attorney Schatz as to th e merit of the issues he wished to raise on appeal. Generally speaking, a defendant

_________________ __________ ______ ____ _______ 5 See Commonwealth’s Brief at 18

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is not entitled to appointed counsel of his choosing. See Commonwealth v. Cook , 952 A.2d 594, 617 ( Pa. 2008) (“ While an indigent [defendant] is entitled to free counsel, he is not entitled to free counsel of his own choosing .”). However, a change of counsel is permitted, and can be warranted, where there are irreconcilable differences between a defendant and counsel. Id . Here, Appellant was correct that there is merit to at least one of issues he wished to present on appeal. Accordingly, it is appropriate under these circumstances that the trial court appoint new counse l for Appellant’s re

- sentencing and any further proceedings

. 6 Judgment of sentence vacated. Case remanded for proceedings consistent with this memorandum. Jurisdiction relinquished

. Judge Shogan joins this memorandum. Judge Nichols concurs in the result. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/16/19

_________________ __________ ______ ____ _______ 6 Because we are vacating Appellant’s judgment of sentence, we need not reach either his dis cretionary

- aspects
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- sentence issue or credit

- time issue at this juncture. However, those issues may be raised in a new post

- sentence motion or direct appeal following re

- sentencing.