J-S22008-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANDY BUXTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 952 WDA 2022

Appeal from the PCRA Order Entered August 2, 2022

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

No(s): CP-02-CR-0012834-2013

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY OLSON, J.: FILED: SEPTEMBER 19, 2023

Appellant, Andy Buxton, appeals from the order entered on August 2, 

2022, dismissing his first petition pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we vacate and 

remand for additional proceedings.

We briefly summarize the facts and procedural history of this case as 

follows. On July 14, 2016, a jury convicted Appellant of one count of criminal 

use of a communications facility, one count of corrupt organizations, three 

counts of possession with intent to deliver heroin (“PWID”), three counts of 

delivery of heroin, and three counts of simple possession of heroin.

1

 This 

Court affirmed Appellant’s judgment of sentence on March 13, 2020. See 

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1

 18 Pa.C.S.A. § 7512(a), 18 Pa.C.S.A. § 911(b)(3), 35 P.S. 

§ 780-113(a)(30), 35 P.S. § 780-113(a)(30), and 35 P.S. § 780-113(a)(16), 

respectively.
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Commonwealth v. Buxton, 229 A.3d 346 (Pa. Super. 2020) (unpublished 

memorandum). On December 31, 2020, our Supreme Court denied further 

review. See Commonwealth v. Buxton, 243 A.3d 735 (Pa. 2020). 

Appellant filed a timely pro se PCRA petition on December 17, 2021. On 

June 28, 2022, the PCRA court filed notice of its intent to dismiss the petition 

under Pa.R.Crim.P. 907. The PCRA court ultimately dismissed Appellant’s pro 

se PCRA petition on August 2, 2022. Appellant filed a timely pro se notice of 

appeal on August 16, 2022. On August 30, 2022, the PCRA court ordered 

Appellant to file a pro se concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b) and Appellant complied timely. On appellate 

review, however, this Court recognized that Appellant proceeded entirely 

without the assistance of counsel during his first PCRA petition. Accordingly, 

on September 23, 2022, we ordered the PCRA court to determine whether to 

appoint counsel or colloquy Appellant pursuant to Commonwealth v. 

Grazier, 713 A.2d 81 (Pa. 1998) to determine if he knowingly, voluntarily, 

and intelligently wished to continue to represent himself pro se. See Order, 

9/23/2022, at *1, citing Pa.R.Crim. 904(C) (“[W]hen an unrepresented 

defendant satisfies the judge that the defendant is unable to afford or 

otherwise procure counsel, the judge shall appoint counsel to represent the 

defendant on the defendant's first petition for post-conviction collateral 

relief.”). 

On September 29, 2022, the PCRA court ordered the Public Defender to 

represent Appellant. On October 27, 2022, the PCRA court directed
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newly-appointed counsel for Appellant to file a Rule 1925(b) concise 

statement. Counsel for Appellant complied timely and subsequently filed a 

timely appellate brief with this Court raising the following issue for review:

1. Since [Appellant] was not appointed counsel for his first, timely 

PCRA petition, should this Court remand the case to the lower 

court for the appointment of new counsel who will file a new 

[a]mended PCRA petition on [Appellant’s] behalf?

Appellant’s Brief at 5.

This Court has previously determined:

We review the denial of a PCRA [p]etition to determine whether 

the record supports the PCRA court's findings and whether its 

[o]rder is otherwise free of legal error. Commonwealth v. 

Fears, 86 A.3d 795, 803 (Pa. 2014).

Defendants have a general rule-based right to the assistance of 

counsel for their first PCRA [p]etition. Pa.R.Crim.P. 904(C); 

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

2009) (en banc) (stating, “a criminal defendant has a right to 

representation of counsel for purposes of litigating a first PCRA 

petition through the entire appellate process[ ]”). “The indigent 

petitioner's right to counsel must be honored regardless of the 

merits of his underlying claims, even where those claims were 

previously addressed on direct appeal, so long as the petition in 

question is his first.” Commonwealth v. Powell, 787 A.2d 1017, 

1019 (Pa. Super. 2001) (citation omitted). “Moreover, once 

counsel is appointed, he [or she] must take affirmative steps to 

discharge his [or her] duties.” Id.

When appointed, counsel's duty is to either (1) amend the 

petitioner's pro se [p]etition and present the petitioner's claims in 

acceptable legal terms, or (2) certify that the claims lack merit by 

complying with the mandates of [Commonwealth v. Turner, 

544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 

A.2d 213 (Pa. Super. 1988) (en banc)]. “If appointed counsel fails 

to take either of these steps, our courts have not hesitated to find 

that the petition was effectively uncounseled.” Powell, 787 A.2d 

at 1019 (citation omitted).
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Commonwealth v. Cherry, 155 A.3d 1080, 1082–1083 (Pa. Super. 2017)

(original footnote incorporated).

Here, upon appeal following the denial of Appellant’s first PCRA petition, 

we directed the PCRA court to appoint counsel to represent Appellant, which 

it did. Appointed counsel, however, neither filed an amended PCRA petition 

on Appellant’s behalf nor certified that Appellant’s claims lacked merit 

pursuant to Turner/Finley. Appellant has not asked to proceed pro se and 

the PCRA court did not conduct a Grazier hearing. As such, Appellant was 

not afforded his right to the assistance of counsel on his first PCRA petition. 

Accordingly, we are constrained to remand for additional proceedings. Upon 

remand, and within 30 days of this decision, appointed PCRA counsel shall be 

permitted to file an amended PCRA petition or comply with the dictates of 

Turner/Finley.

Order vacated. Case remanded for additional proceedings consistent 

with this decision. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/19/2023