J-S14037-17

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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DANIEL L. COLON,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1399 MDA 2016

Appeal from the Order Entered July 26, 2016, 

in the Court of Common Pleas of Snyder County, 

Criminal Division, at No(s): CP-55-CR-2100030-2000

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

MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 27, 2017

Daniel L. Colon (Appellant) appeals pro se from the July 26, 2016 

order that denied his petition for a writ of habeas corpus. We vacate the 

order and remand for further proceedings consistent with this memorandum.

In 2001, Appellant pled nolo contendere to drug charges and was 

sentenced to an aggregate term of six to 30 years of imprisonment. This 

Court affirmed his judgment of sentence on October 3, 2002, and our 

Supreme Court denied his petition for allowance of appeal on June 24, 2003. 

Commonwealth v. Colon, 815 A.2d 1124 (Pa. Super. 2002) (unpublished 

memorandum), appeal denied, 825 A.2d 1259 (Pa. 2003). 

Appellant took no further action until he filed a petition for writ of 

habeas corpus on June 10, 2016. Therein, Appellant (1) claimed that he is 

serving an illegal sentence based upon the application of an unconstitutional 
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mandatory minimum provision, Petition, 6/10/2016, at ¶ 9; (2) stated that 

his petition was not filed pursuant to the Post Conviction Relief Act (PCRA), 

42 Pa.C.S. §§ 9541-9546, id. at ¶ 2; requested to proceed in forma 

pauperis, id. at ¶ 12; forswore the appointment of counsel, id. at ¶ 13; and 

asked to proceed pro se. Id. 

After the Commonwealth filed an answer to the petition, the trial court 

scheduled a hearing which Appellant attended via teleconference from state 

prison. The trial court proceeded to the merits of Appellant’s claim, 

determined that he had not been sentenced under a mandatory minimum 

statute, and denied the petition. N.T., 7/26/2016, at 9-10. 

Appellant timely filed a notice of appeal, and both Appellant and the 

trial court complied with Pa.R.A.P. 1925.1 In his appellate brief, Appellant 

argues that his sentence is illegal, and also makes a number of allegations 

about the ineffectiveness of his plea counsel. Appellant’s Brief at 2.

Before we consider the substance of Appellant’s claims, we must 

determine the proper framework for our review. The first principle of note is 

that “the PCRA subsumes all forms of collateral relief, including habeas 

corpus, to the extent a remedy is available under such enactment.” 

 

1 Although Appellant’s concise statement of errors complained of on appeal 

was filed more than 21 days after the order directing him to do so, it 

appears from the record that it was timely filed under the prisoner mailbox 

rule. See, e.g., Commonwealth v. Wilson, 911 A.2d 942, 944 (Pa. 

Super. 2006) (indicating that under the prisoner mailbox rule, a document is 

deemed to have been filed when it was placed in the hands of prison 

authorities for mailing).
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Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007). Claims of an 

illegal sentence and the ineffective assistance of counsel are cognizable 

under the PCRA. Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. 

Super. 2011); 42 Pa.C.S. § 9543(a)(2)(ii), (vii). Accordingly, despite 

Appellant’s protestations to the contrary, his habeas corpus petition should 

have been treated as his first PCRA petition. 

Second, “before the trial court disposes of a post conviction petition, it 

must first make a determination as to the petitioner’s indigence and if the 

petitioner is indigent, the court must appoint counsel to assist in the 

preparation of said petition.” Commonwealth v. Hampton, 718 A.2d 

1250, 1253 (Pa. Super. 1998) (quoting Commonwealth v. Van Allen, 597 

A.2d 1237, 1239 (Pa. Super. 1991)) (emphasis omitted). 

[I]f a PCRA defendant indicates a desire to represent himself, it 

is incumbent upon 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). A court must explain to a 

defendant that he has the right to counsel, in accordance with 

(a), that he is bound by the rules as outlined in (d), and that he 

may lose rights, as indicated in (f). Subsection (e) must be 

appropriately tailored so that a defendant is informed that “there 

are possible defenses to these charges that counsel might be 

aware of, and if these defenses are not raised [in a PCRA 

petition], they may be lost permanently.”

Commonwealth v. Robinson, 970 A.2d 455, 459-60 (Pa. Super. 2009).

Here, the trial court opened the hearing with the following exchange 

with Appellant:
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THE COURT: [Appellant], do you understand, sir, that you 

do have the right to be represented by an attorney?

[APPELLANT]: Yes, I do, Your Honor.

THE COURT: Okay. Have you applied for any representation 

by the Public Defender?

[APPELLANT]: No.

THE COURT: Do you wish to proceed in this matter with or 

without an attorney?

[APPELLANT]: I will proceed without, Your Honor.

THE COURT: Okay. ...

N.T., 7/26/2016, at 2. 

Clearly, the trial court’s colloquy failed to satisfy all of the 

requirements of Rule 121 as discussed in Robinson, 970 A.2d at 459-60. 

Furthermore, the apparent untimeliness of Appellant’s petition does 

not render harmless the failure to appoint counsel or to hold a proper waiver 

colloquy. See, e.g., Commonwealth v. Smith, 818 A.2d 494, 501 (Pa. 

2003) (“[A]n indigent petitioner, whose first PCRA appears untimely, is 

entitled to the assistance of counsel in order to determine whether any of 

the exceptions to the one-year time limitation appl[ies].”); Commonwealth 

v. Kutnyak, 781 A.2d 1259, 1262 (Pa. Super. 2001) (holding it was error to 

dismiss the PCRA petition before appointing counsel, “despite any apparent 

untimeliness of the petition or the apparent non-cognizability of the claims 

presented”).
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Thus, because “[t]he denial of PCRA relief cannot stand unless the 

petitioner was afforded the assistance of counsel,” Commonwealth v. 

Albrecht, 720 A.2d 693, 699 (Pa. 1998), remand is necessary for 

appointment of counsel or a waiver colloquy that satisfies Pa.R.Crim.P. 121. 

Order vacated. Case remanded for further proceedings consistent with 

this memorandum. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/27/2017