Opinion
J-S65025-17 No. 798 EDA 2017
01-11-2018
COMMONWEALTH OF PENNSYLVANIA v. AMADU BARRY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence February 8, 2017
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0001096-2014 BEFORE: OLSON, J., OTT, J., and MUSMANNO, J. JUDGMENT ORDER BY OTT, J.:
Amadu Barry appeals from the judgment of sentence imposed February 8, 2017, in the Chester County Court of Common Pleas, upon the revocation of his parole. The trial court sentenced Barry to a term of 12 months and 29 days' imprisonment, the balance of his sentence previously imposed on September 10, 2014, following his guilty plea to four counts of access device fraud. Contemporaneous with this appeal, Barry's counsel has filed a petition to withdraw from representation and an Anders brief. See Anders v. California , 386 U.S. 738 (1967); Commonwealth v. McClendon , 434 A.2d 1185 (Pa. 1981). For the reasons below, we vacate Barry's parole revocation sentence, deny counsel's petition to withdraw, and remand for further proceedings.
The relevant factual and procedural history underlying this appeal are aptly summarized in the trial court opinion, and we need not reiterate them herein. See Trial Court Opinion, 3/29/2017, at 1-3. Pertinent to our disposition, however, we note that Barry appeared, pro se, via telephone, for his February 8, 2017, revocation hearing and sentencing.
Pennsylvania Rule of Criminal Procedure 708 provides that a trial court may not revoke a defendant's parole, unless there has been: "(1) a hearing held as speedily as possible at which the defendant is present and represented by counsel; and (2) a finding of record that the defendant violated a condition of ... parole." Pa.R.Crim.P. 708(B)(1)-(2) (emphasis supplied). Our review of the record reveals Barry was unrepresented at his revocation hearing, and there is no indication in the record that Barry requested to proceed pro se or waived his right to counsel. See , generally , N.T., 2/8/2017, at 1-10.
In fact, after Barry filed a pro se notice of appeal, this Court issued a per curium order, directing the trial court to conduct a Grazier hearing to determine if Barry wanted to proceed pro se. See Order , 4/24/2017. The order specifically noted it appeared from the docket that Barry was unrepresented at his revocation hearing. See id. Thereafter, the trial court complied with our directive, and following a Grazier hearing, appointed present counsel to represent Barry on appeal. Counsel then filed an Anders brief and petition to withdraw.
See Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998).
Our review of the record reveals that although counsel substantially complied with the requirements of Anders and its progeny, we are, nevertheless, constrained to deny counsel's petition to withdraw because Barry's appeal is not wholly frivolous. See Commonwealth v. Tukhi , 149 A.3d 881, 889 (Pa. Super. 2016) (denying counsel's petition to withdraw when "independent review of the record reveals a potentially non-frivolous issue not raised by counsel"). Barry was entitled to the assistance of counsel to represent him at the February 8, 2017, revocation hearing. Pa.R.Crim.P. 708(B)(1). Neither the trial court, nor newly appointed counsel, address this claim on appeal. Accordingly, we are compelled to vacate the judgment of sentence imposed on February 8, 2017, deny counsel's petition to withdraw, and remand for further proceedings.
See Commonwealth v. Cartrette , 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). --------
Judgment of sentence vacated. Petition to withdraw as counsel denied. Case remanded for further proceedings. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/11/18