J-S53035-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O. P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. RONALD JAMES BAILEY, Appellant No. 380 WDA 2014

Appeal from the Judgment of Sentence January 30, 201 4 in the Court of Common Pleas of Fayette County Criminal Division at Nos.: CP-26-CR-0000622-2013;

CP-26-CR-0001113-2013
BEFORE: DONOHUE, J., OLSON, J., and PLATT, J. * MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 22, 2014 Appellant, Ronald James Bailey, appeals pro se from the amended judgment of sentence entered pursuant to his negotiated guilty plea. Because the trial court failed to determine if Appella nt voluntarily, knowingly, and intelligently waived his constitutional right to counsel on appeal, we remand. 1

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* Retired Senior Judge assigned to the Superior Court.

1 Appellant pleaded guilty to three counts each of possessi on with intent to deliver a controlled substance (PWID) and possession of a co ntrolled substance; and one count each of possession of drug paraphe rnalia, driving under the influence-general impairment (DUI), drivin g under a suspended license-DUI related (DUS), driving an unregistered veh icle, operating a vehicle without required financial responsibility, disr egarding traffic lane, and careless driving, See 35 P.S. §§ 730-113(a)(30), 780-113(a)(16), and 780- (Footnote Continued Next Page)J-S53035-14

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On September 3, 2013, Appellant pleaded guilty pur suant to a negotiated guilty plea. On September 24, 2013, aft er finding Appellant
RRRI 2 eligible, the court sentenced Appellant to terms of no t less than eighteen nor more than forty-eight months for PWID, not less than nine months nor more than two years for DUI, and not less th an two months, seven days nor more than ninety days on the DUS convicti on. ( See N.T. Sentencing, 9/24/13, at 9-13). All sentences were to r un consecutively. On January 30, 2014, after advice from the Department o f Corrections of a calculation error, the court filed an amended sentence. The amended sentence increased the RRRI minimum sentence on the PWID count to twenty months, increased the DUI minimum to ten month s, and increased the DUS sentence to two months, fifteen days. ( See Amended Sentence Order, PWID, 1/30/14; Amended Sentence Order, DUI, 1 /30/14; Amended Sentence Order, DUS, 1/30/14). Appellant, although still represented by appointed co unsel, filed an otherwise timely pro se notice of appeal. 3 On March 7, 2014, the court ordered Appellant to file a Rule 1925(b) statement o f errors complained of

(Footnote Continued) _______________________ 113(a)(32) and 75 Pa.C.S.A. §§ 3802(a)(1), 1543(b)( 1.1), 1301(a), 1786(f), 3309(1), and 3714(a), respectively.

2 See Recidivism Risk Reduction Incentive, 61 Pa.C.S.A. § § 4501-4512.

3 We give Appellant the benefit of the Prisoner Mailb ox Rule. See Commonwealth v. Jones , 700 A.2d 423, 726 (Pa. 1997).J-S53035-14

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on appeal. ( See Order, 3/07/14); see also Pa.R.A.P. 1925(b). On April 25, 2014, a month after the deadline to file a statement of errors had expired, Appellant’s counsel filed a motion to withdraw on the basis that “reviewing his file and colloquy presented to the [c]ourt demonstra tes no issues.” (Motion to Withdraw, 4/25/14, at 1). On May 1, 201 4, the court granted counsel’s motion without a hearing and, on May 6, 2014 , the court filed a Rule 1925(a) statement in lieu of opinion. 4 See Pa.R.A.P. 1925(a). Appellant presents four issues for this Court’s review:

1. Is the [c]ommon [p]leas [c]ourt within it’s [sic] power to amend, change, or alter, any facet of a [negotiated] plea sentence, sua sponte ?
2. Is the [c]ommon [p]leas [c]ourt within it’s [sic] power to amend, change, or alter, any facet of a [negotiated] plea sentence, sua sponte after the 30 days dictated by statute, under Pa.C.S.[A.] § 5505, which clearly states: the cou rts [sic] jurisdiction extends for 30 days after the entry of a final order, beyond which time the court is divested of jurisdiction ? 3. Has [Appellant’s] [c]onstitutional [r]ight to [d]ue [p ]rocess been violated, in a criminal proceeding, where the [c] ommon [p]leas [c]ourt has violated [Appellant’s] negotiated plea sentences by amending, changing, and/or altering the sen tences that [Appellant] agreed to by foregoing trial, and accepting by entry of his guilty pleas, more than 30 days after th e sentencing orders were entered?

____________________________________________ 4 The trial court represented that it could not “issue a complete opinion in this matter” because Appellant did not file a Rule 19 25(b) statement of errors complained of on appeal. (Statement in Lieu o f Opinion, 5/06/14, at 2).J-S53035-14

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4. Is [Appellant] entitled to enter a plea of [n]ot [g] uilty and be granted a new trial in light of the numerous [f]e [d]eral and [s]tate [c]onstitutional [r]ights violations regarding the fact that [Appellant’s] current [negotiated] pleas are illegal a nd thus entered into unknowingly and unwillingly[?] (Appellant’s Brief, at 6-7). Before we consider the merits of Appellant’s issues, we m ust determine whether Appellant knowingly, voluntarily, and intelligently waived his right to counsel and chose to proceed pro se with this appeal. It is well-settled that the right to counsel on direct appeal is a constitutional one. See Commonwealth v. Wrecks , 931 A.2d 717, 722 (Pa.Super. 2007). However, an appellant “may, actin g pursuant to the rules of criminal procedure, proceed on his own behalf.” Commonwealth v. Grazier , 713 A.2d 81, 82 (Pa. 1998) (citations omitted). “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 w aiver is a knowing, intelligent, and voluntary one.” Id. (citations omitted). In this case, while still represented by appointed counsel , Appellant filed a pro se notice of appeal. Although Appellant was not entitl ed to hybrid representation, see Commonwealth v. Jette , 23 A.3d 1032, 1035 (Pa. 2011), the court ordered him to file a Rule 1925(b) statement. In response, neither Appellant nor his counsel filed either a Rule 1925(b) statement ofJ-S53035-14

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errors or a statement of intent to file a brief pursua nt to Anders / Santiago

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See Pa.R.A.P. 1925(b), (c)(4). Instead, after the deadline for filing a Rule 1925(b ) statement expired, counsel filed a motion to withdraw from representation , which the trial court granted without a hearing. ( See Motion to Withdraw, 4/25/14, at 1; Order, 5/01/14). We are constrained to conclude that this wa s error. The trial court failed to determine whether Appellan t knowingly, intelligently, and voluntarily intended to waive cou nsel when he filed his pro

se notice of appeal. See Grazier , supra at 82. Therefore, we remand this case for the trial court to conduct a Grazier hearing within thirty days of the date of this decision. See id. If the court finds that the Grazier standard for a knowing, voluntary and intelligent waiver is not met, it shall appoint n ew counsel to proceed on Appellant’s behalf. Counsel shall either file a nunc pro tunc Rule 1925(b) statement of errors 6 and an advocate’s brief, or petition to withdraw in compliance with Anders / Santiago , and their progeny.

____________________________________________ 5 Anders v. California , 386 U.S. 738 (1967); Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009).

6 “If an appellant in a criminal case was ordered to fil e a Statement and failed to do so, such that the appellate court is convin ced that counsel has been per se ineffective, the appellate court shall remand for th e filing of a Statement nunc pro tunc .” Pa.R.A.P. 1925(c)(3).J-S53035-14

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Alternatively, if the court finds that Appellant’s wa iver is knowing, intelligent, and voluntary, then it shall order Appe llant to file a nunc pro tunc
pro se Rule 1925(b) statement of errors. Case remanded. Panel jurisdiction retained.