J-S36023-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

JAMES GREGORY COOPER 

 Appellant No. 1655 WDA 2014 

Appeal from the Judgment of Sentence August 8, 2012

In the Court of Common Pleas of Clarion County 

Criminal Division at No(s): CP-16-CR-0000345-2011 

BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.* 

MEMORANDUM BY JENKINS, J.: FILED JULY 10, 2015

 Appellant James Gregory Cooper appeals from the judgment of 

sentence1 entered in the Clarion County Court of Common Pleas following his 

jury trial convictions for possession of a controlled substance with intent to 

deliver (“PWID”) and two counts of conspiracy for PWID.2 For the reasons 

stated in this memorandum, we vacate his judgment of sentence, and 

remand for resentencing. 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 

1

 This was originally docketed as an appeal from the order denying 

Appellant’s petition for relief pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. However, for the reasons stated in this 

memorandum, we conclude that this is a timely direct appeal, not an appeal 

from the denial of PCRA relief. 

2

 35 P.S. § 780-113(a)(30), 18 Pa.C.S. § 903, respectively. 
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 The relevant facts and procedural history of this appeal are as follows. 

On June 10, 2011, police arrested Appellant, his wife, and their son after 

executing a search warrant of their house, garage, and motor home and 

discovering seven pounds of marijuana, a jar of marijuana seeds, digital 

scales, zip lock bags, a grow light, Miracle Grow, money from controlled drug 

buys between an undercover police officer and Appellant’s son, and 

weapons. On June 27, 2012, a jury convicted Appellant of PWID and two 

counts of conspiracy.3 On August 8, 2012, the court imposed sentences of

five (5) to ten (10) years’ incarceration for PWID, the mandatory minimum 

pursuant to the weapons enhancement in 42 Pa.C.S. § 9712.1 and one (1) 

to two (2) years’ incarceration for each of Appellant’s conspiracy 

convictions.4 

On August 16, 2012, Appellant’s counsel filed a motion to withdraw 

and to extend the time in which Appellant could file a timely post-sentence 

motion. On August 22, 2012, the court granted counsel’s motion to 

withdraw and extended the time for Appellant to file a timely post-sentence 

motion to August 28, 2012. The court did not appoint new counsel to 

____________________________________________ 

3

 The jury acquitted Appellant of possession of a firearm, persons not to 

possess firearms. 18 Pa.C.S. § 6105. 

4

 The court imposed both of Appellant’s conspiracy sentences concurrent to 

his PWID sentence. 
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represent Appellant on direct appeal or conduct a Grazier5 hearing to 

determine whether Appellant waived his right to counsel on direct appeal. 

On September 4, 2012, Appellant filed a notice of appeal and another 

request for an extension of time to file his post-sentence motion.6 On 

September 10, 2012, Appellant sent a letter to the Superior Court indicating 

his intention to appeal his judgment of sentence. The next day, this Court 

forwarded the letter to the trial court. On September 13, 2012, the trial 

court accepted Appellant’s filings as a timely notice of appeal, but not as a 

post-trial motion, because the court did not receive the motion for extension 

of time until Appellant’s extended time period to file a post-sentence motion 

had expired. That same day, the court ordered Appellant to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

On September 17, 2012, this Court sent a letter to the trial court requesting 

it return the notice of appeal to this Court after Appellant amended it to 

conform to the Rules of Appellate Procedure. On October 16, 2012, this 

Court sent Appellant a letter with copies of Pa.R.A.P. 904, 905, and 906 to 

assist him in perfecting his appeal. 

____________________________________________ 

5 Commonwealth v. Grazier, 713 A.2d 81 (Pa.1998). 

6

 This request was dated August 28, 2012 and stamped as mailed on August 

31, 2012. 
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Appellant did not file a Pa.R.A.P. 1925(b) statement, the trial court did 

not file a Pa.R.A.P. 1925(a) opinion, and this Court never addressed or 

dismissed Appellant’s direct appeal. 

On July 11, 2014, Appellant filed a pro se PCRA petition. On July 28, 

2014, the trial court appointed counsel to assist Appellant with his first PCRA 

petition. Counsel filed a “no merit” letter pursuant to Turner7 and Finley8

and a motion to withdraw as counsel on September 2, 2014. On September 

4, 2014, the court granted counsel’s petition to withdraw and issued a 

Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s PCRA petition. 

On September 29, 2014, the court dismissed Appellant’s PCRA petition. 

Appellant filed a timely notice of appeal on October 8, 2014. On October 10, 

2014, the court ordered Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one 

(21) days, and he timely complied. 

 We must first consider the propriety of Appellant’s direct appeal 

because the “timeliness of an appeal and compliance with the statutory 

provisions granting the right to appeal implicate an appellate court’s 

jurisdiction and its competency to act.” Commonwealth v. Williams, 106 

A.3d 583, 587 (Pa.2014) (citation omitted). Our Rules of Appellate 

Procedure provide, in pertinent part: 

____________________________________________ 

7 Commonwealth v. Turner, 544 A.2d 927 (Pa.1988). 

8 Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988). 
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Rule 902. Manner of Taking Appeal

An appeal permitted by law as of right from a lower court 

to an appellate court shall be taken by filing a notice of 

appeal with the clerk of the lower court within the time 

allowed by Rule 903 (time for appeal). Failure of an 

appellant to take any step other than the timely filing of a 

notice of appeal does not affect the validity of the appeal, 

but it is subject to such action as the appellate court 

deems appropriate, which may include, but is not limited 

to, remand of the matter to the lower court so that the 

omitted procedural step may be taken. 

Pa.R.A.P. 902. We observe: 

[Pa.R.A.P. 902] “eliminates the ‘trap’ of failure to perfect 

an appeal” by making timely notices of appeal “selfperfecting.” Pa.R.A.P. 902, Note. Thus, to perfect an 

appeal from a lower court order, an appellant need only 

file a notice of appeal with the clerk of the lower court 

within the applicable time period allotted by Rule 903. A 

timely notice of appeal triggers the jurisdiction of the 

appellate court, notwithstanding whether the notice of 

appeal is otherwise defective. 

In the event of a defective notice of appeal, Rule 902 

encourages, though it does not require, appellate courts to 

remand the matter to the lower court so that the 

procedural defect may be remedied. As the note following 

Rule 902 explains, the rule creates a preference for 

correcting procedurally defective, albeit timely, notices of 

appeal so that appellate courts may reach the merits of 

timely appeals. See Pa.R.A.P. 902, Note. The note further 

indicates that dismissal of a defective appeal remains an 

alternative where the appellate court determines that an 

appellant has failed to take the necessary steps to correct 

an identified defect. 

Williams, 106 A.3d at 587-88. 

 Here, the court imposed Appellant’s judgment of sentence on August 

8, 2012. On September 4, 2012, Appellant filed a timely pro se notice of 
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appeal. Although Appellant did not comply with the trial court’s order to file 

a Pa.R.A.P. 1925(b) statement or our order to perfect his appeal, we never 

dismissed this appeal. Thus, Appellant’s direct appeal remains pending, 

rendering all PCRA proceedings in the trial court null and void. 

Because Appellant filed a timely notice of appeal and because the trial 

court failed to appoint appellate counsel or conduct a Grazier hearing before 

or after permitting trial counsel to withdraw, we will not dismiss this appeal. 

“When an appellate court, including this Court, has been presented 

with a timely request to proceed pro se on appeal, the court generally has 

remanded for a ‘Grazier hearing’ to determine if the waiver of counsel is 

knowing, intelligent, and voluntary.” Commonwealth v. Staton, 12 A.3d 

277, 280 (Pa.2010). To ensure that a waiver of counsel is knowing, 

voluntary, and intelligent, a defendant must be colloquied on his 

understanding of the following six (6) elements: 

(1) whether the defendant understands that he has a right 

to be represented by counsel and the right to free counsel 

if he is indigent, (2) whether the defendant understands 

the nature of the charges against him and the elements of 

each of those charges, (3) whether the defendant is aware 

of the permissible range of sentences and/or fines for the 

offenses charged, (4) whether the defendant understands 

that if he waives the right to counsel he will still be bound 

by all the normal rules of procedure and that counsel 

would be familiar with these rules (5) whether the 

defendant understands that there are possible defenses to 

these charges [of] which counsel might be aware, and if 

these defenses are not raised they may be lost 

permanently, and (6) whether the defendant understands 

that, in addition to defenses, the defendant has other 

rights that, if not timely asserted, may be lost permanently 
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and that if errors occur and are not objected to or

otherwise timely raised by the defendant, the objection to 

these errors may be lost permanently. 

Commonwealth v. Houtz, 856 A.2d 119, 123 (Pa.Super.2004) (citation 

omitted). 

During Appellant’s sentencing hearing, the following transpired: 

[DEFENSE COUNSEL]: I would like to note for the record 

that [Appellant] has advised me even though he would 

prefer not to represent himself he doesn’t trust any lawyer 

in the area to represent him so I think that he would prefer 

to represent himself in light of the fact that there aren’t 

any trustworthy lawyers in the area. I don’t know if that 

would – 

[APPELLANT]: I explained it all in the 36-page document. 

THE COURT: You heard me say at the beginning of the 

day you have certain post-sentence rights. You have a 

right to file post-sentence motion within 10 days from 

today and the right to appeal within 30 days. 

[APPELLANT]: I don’t understand some of those things. 

THE COURT: That’s what was spelled out for you in the 

written document that you are refusing to sign. You need 

to understand those rights and as you, I think, are aware 

you have the right to raise issues concerning ineffective 

assistance of counsel and Post-Conviction Relief Act 

petition. Those are further in the day, not today.

[APPELLANT]: My questions on that I understand those 

rights I just don’t understand what they are. What is a 

post-sentence motion is that like for a new trial or is that 

only reason those would be post-sentence motion. 

THE COURT: Right. That would be the value of having an 

attorney represent you to be able to explain procedurally 

how this all works, what the time frame is, what needs to 

be stated in these sorts of filings. If you do it yourself you 

are running the risk of missing what the requirements are. 
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[APPELLANT]: There is a lot of explanations in that. I 

have asked for standby counsel in that petition. I have 

made it clear it is really not my desire of what the 

situations are and I give a lot of particulars and facts in 

that statement. 

THE COURT: All right. Anything further concerning the 

sentencing? 

N.T., August 8, 2012 at 13-14. 

 Appellant’s sentencing hearing demonstrates that the trial court failed 

to hold a Grazier hearing to determine whether Appellant knowingly, 

intelligently and voluntarily waived his right to counsel. Further, although 

Appellant filed a pro se notice of appeal, the court failed to appoint appellate 

counsel. 

 Ordinarily, the proper procedure at this point would be to remand for a 

Grazier hearing. Here, however, before remanding, we vacate Appellant’s 

judgment of sentence as illegal under Alleyne v. United States, __ U.S. 

__, 133 S.Ct 2151, 186 L.Ed 2d 341 (2013). 

Questions regarding the legality of a sentence “are not waivable and 

may be raised sua sponte by this Court.” Commonwealth v. Watley, 81 

A.3d 108, 118 (Pa.Super.2013) (en banc), appeal denied, 95 A.3d 277 

(Pa.2014). Further, Alleyne issues directly implicate the legality of 

sentence. Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa.Super.2014). 

Our standard of review of questions involving the legality of a sentence 

is as follows: 
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A challenge to the legality of a sentence...may be 

entertained as long as the reviewing court has jurisdiction. 

It is also well-established that if no statutory authorization 

exists for a particular sentence, that sentence is illegal and 

subject to correction. An illegal sentence must be vacated. 

Issues relating to the legality of a sentence are questions 

of law. Our standard of review over such questions is de 

novo and our scope of review is plenary. 

Wolfe, 106 A.3d at 801-02 (citations omitted). 

In this case, Appellant was sentenced under 42 Pa.C.S. § 9712.1, 

which provides, in relevant part: 

§ 9712.1. Sentences for certain drug offenses 

committed with firearms 

(a) Mandatory sentence.–Any person who is 

convicted of violation of section [1]13(a)(30) of [] The 

Controlled Substance, Drug, Device, and Cosmetic Act, 

when at the time of the offense the person or the person’s 

accomplice is in physical possession or control of a firearm, 

whether visible, concealed about the person or the 

person’s accomplice or within the actor’s or accomplice’s 

reach or in close proximity to the controlled substance 

shall likewise be sentenced to a minimum sentence of at 

least five years of total confinement. 

* * * 

(c) Proof at sentencing.--Provisions of this section 

shall not be an element of the crime, and notice thereof to 

the defendant shall not be required prior to conviction, but 

reasonable notice of the Commonwealth's intention to 

proceed under this section shall be provided after 

conviction and before sentencing. The applicability of this 

section shall be determined at sentencing. The court shall 

consider any evidence presented at trial and shall afford 

the Commonwealth and the defendant an opportunity to 

present any necessary additional evidence and shall

determine, by a preponderance of the evidence, if this 

section is applicable.
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42 Pa.C.S. § 9712.1.

In Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.2014) (en 

banc), we held that the preponderance of the evidence standard in section 

9712.1(c) is unconstitutional under Alleyne.

9

 Therefore, Appellant’s 

judgment of sentence is illegal, and the trial court must resentence Appellant 

without consideration of any mandatory minimum sentence provided by 

section 9712.1. Thus, in the interest of judicial economy, we vacate 

Appellant’s judgment of sentence and remand for resentencing.10, 11

 Judgment of sentence vacated; case remanded for further proceedings 

consistent with this memorandum. Jurisdiction is relinquished. 

____________________________________________ 

9

 In Commonwealth v. Hopkins, our Supreme Court affirmed our holding 

that the preponderance of the evidence standard in 18 Pa.C.S. § 6317(a) is 

unconstitutional and that the “violative provisions [are] not severable.” 98 

MAP 2013, [J-78-2014]-2, filed June 15, 2015. 

10 Our decision today renders the defects in Appellant’s September 4, 2012 

notice of appeal moot. In the future, Appellant should be careful to comply 

with the Rules of Appellate Procedure, as we could have dismissed his appeal 

for being defective. 

11 At sentencing, the trial court shall inquire whether Appellant desires 

representation by counsel or wishes to represent himself. If Appellant 

desires counsel, the trial court shall appoint new counsel for Appellant. If 

Appellant wishes to represent himself, the trial court shall conduct a Grazier

hearing to determine whether Appellant’s waiver of counsel is knowing, 

voluntary and intelligent. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/10/2015