J-S72036-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 

v.

RICHARD DALE HELMS,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 786 MDA 2016

Appeal from the PCRA Order April 21, 2016,

in the Court of Common Pleas of Berks County, 

Criminal Division at No(s): CP-06-CR-0000395-2006, 

CP-06-CR-0002897-2006, CP-06-CR-0002898-2006, 

CP-06-CR-0004789-2006 

BEFORE: GANTMAN, P.J., DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 22, 2016

Richard Dale Helms (Appellant) appeals pro se from the order of April 

21, 2016, which denied his petition filed pursuant to the Post Conviction 

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we vacate the 

order of the PCRA court and remand for proceedings consistent with this 

memorandum.

On June 25, 2008, a jury found Appellant guilty of multiple sex 

offenses related to Appellant’s sexual abuse of four separate minor victims. 

He was sentenced to an aggregate term of 124 to 248 years of 

incarceration. This Court affirmed Appellant’s judgment of sentence, and on 

October 8, 2010, our Supreme Court denied Appellant’s petition for 
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allowance of appeal. Commonwealth v. Helms, 998 A.2d 1012 (Pa. Super. 

2010), appeal denied, 8 A.3d 898 (Pa. 2010). 

Appellant timely filed a PCRA petition on September 14, 2011. 

Counsel was appointed, and he eventually filed a no-merit letter and petition 

to withdraw over two years later, on January 10, 2014. The PCRA court 

permitted counsel to withdraw and issued a notice of its intent to dismiss the 

PCRA petition without a hearing. Appellant responded by filing an amended 

PCRA petition, which was dismissed on February 4, 2014. 

Appellant timely filed a notice of appeal to this Court. This Court 

reversed the PCRA court’s dismissal of Appellant’s PCRA petition and was 

concerned primarily with the delay between the appointment of PCRA 

counsel on September 22, 2011, and the eventual filing of the no-merit 

letter and request to withdraw on January 10, 2014.

For two years, counsel failed to perform any action in this 

matter except to file extensions. When Appellant repeatedly and 

emphatically asked to proceed pro se to file the amended PCRA 

petition that counsel was unable to complete, he was denied that 

right. In 2014, two and one-half years after the initial petition 

was filed, counsel obtained withdrawal based upon an utterly 

defective no-merit letter.

Commonwealth v. Helms, 108 A.3d 115 (Pa. Super. 2014) (unpublished 

memorandum at 1).

Thus, this Court held that the PCRA court erred by denying Appellant’s 

earlier request to proceed pro se that he filed on August 19, 2013. This 

Court remanded for the PCRA court to “conduct a proper waiver-of-counsel 
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colloquy” and thereafter permit Appellant to file an amended PCRA petition. 

Id. at 5.

In response to this Court’s remand, on November 20, 2014, the PCRA 

court sent Appellant an order that provided the following:

AND NOW, this 20th day of November, 2014, 

contemporaneously with the filing of this Order, a Waiver of 

PCRA Counsel colloquy has been mailed to the Defendant. The 

Defendant shall have thirty days to sign the colloquy and return 

it in the postage-paid envelope, which has also been provided. 

Once said colloquy is received, the Defendant will be permitted 

to file an amended PCRA petition.

Order, 11/20/2014.

On December 11, 2014, the clerk of courts docketed Appellant’s signed 

colloquy. Appellant also filed an amended PCRA petition. On July 23, 2015, 

the PCRA court issued a notice of intent to dismiss Appellant’s petition 

without a hearing. Appellant filed a response, and on April 20, 2016, the 

PCRA court dismissed Appellant’s petition. Appellant timely filed a notice of 

appeal. 

Before we reach the substantive issues set forth by Appellant, we 

consider whether the PCRA court complied with this Court’s previous 

directive to “conduct a proper waiver-of-counsel colloquy.” Helms, 108 A.3d 

115 (Pa. Super. 2014) (unpublished memorandum at 5). We are cognizant 

that Appellant has not argued that he wished to proceed with counsel. “That 

fact, however, does not prevent us from sua sponte addressing this issue 

and remanding his case.” Commonwealth v. Stossel, 17 A.3d 1286, 1290 
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(Pa. Super. 2011). In Stossel, this Court held explicitly that “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.” Id.

Thus, we now must determine whether the PCRA court’s act of sending 

Appellant a waiver-of-counsel colloquy form to fill out and send back 

complied with this Court’s directive. In Commonwealth v. Robinson, 970 

A.2d 455 (Pa. Super. 2009) (en banc), this Court reiterated the principle 

that “[w]hen a waiver of the right to counsel is sought at the post-conviction 

and appellate stages, an on-the-record determination should be made that 

the waiver is knowing, intelligent, and voluntary.” Id. at 457 (emphasis 

added). See also Pa.R.Crim.P. 121(C) (“When the defendant seeks to waive 

the right to counsel after the preliminary hearing, the judge shall ascertain 

from the defendant, on the record, whether this is a knowing, voluntary, 

and intelligent waiver of counsel.”) (emphasis added). Moreover, the 

comments to Rule 121 provide “at a minimum, that the judge ... ask

questions to elicit the information set forth in paragraph (A)(2).” 

Pa.R.Crim.P. 121 (comment). 

Furthermore, it is a long-standing principle that “a signed statement 

alone cannot establish that a defendant has effectively waived this right [to 

counsel].” Commonwealth ex rel. Clinger v. Russell, 213 A.2d 100, 101 

(Pa. Super. 1965).
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One must bear in mind that an accused will often sign such a 

prepared statement at a time when he is subject to the 

conflicting pressures inherent in all accusatory proceedings. In 

the absence of sufficient oral inquiry, such a signed statement 

will not adequately demonstrate that the accused comprehended 

and assented to the contents of the writing. The court must 

examine the accused’s awareness of the nature of the crime, the 

range of allowable punishments thereunder, and all other facts 

essential to a broad understanding of the whole matter. Only at 

the completion of such a comprehensive inquiry, can the court 

be confident that the defendant intelligently waived his right to 

counsel.

Id. See also Commonwealth v. Clyburn, 42 A.3d 296, 300 (Pa. Super. 

2012) (clarifying that our jurisprudence requires “an appropriate oral 

colloquy to accompany a written waiver”). 

Based on the foregoing, it is clear that the PCRA court did not comply 

with this Court’s directive to “conduct a proper waiver-of-counsel colloquy.” 

Helms, 108 A.3d 115 (Pa. Super. 2014) (unpublished memorandum at 5). 

By sending a form to Appellant for him to sign, the PCRA court did not 

comply with the mandates of Pa.R.Crim.P. 121. See Stossel, 17 A.3d at 

1289 (“[I]f a PCRA defendant indicates a desire to represent himself, it is 

incumbent on the PCRA court to elicit information from the defendant that 

he understands the items outlined in Pa.R.Crim.P. 121(A)(2)(a), (d), (e), 

and (f).”). 

Accordingly, we vacate the order of the PCRA court “and remand for 

the court to conduct a Grazier[1] hearing to determine if [Appellant] is 

 

1

 Commonwealth v. Grazier, 713 A.2d 81 (1998) (holding that “when a 

waiver of the right to counsel is sought at the post-conviction and appellate 
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knowingly, intelligently, and voluntarily waiving his right to counsel.” 

Stossel, 17 A.3d at 1290.

Order vacated. Case remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2016

 

stages, an on-the-record determination should be made that the waiver is a 

knowing, intelligent, and voluntary one”).