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`NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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`IN THE SUPERIOR COURT OF
`PENNSYLVANIA
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`No. 82 WDA 2020
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`:::::::::
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`COMMONWEALTH OF PENNSYLVANIA
`
`Appellee
`
`v.
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`LOVELL MARVELOUS JOHNSON
`
`Appellant
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`Appeal from the PCRA Order Entered December 20, 2019
`In the Court of Common Pleas of Erie County
`Criminal Division at No(s): CP-25-CR-0000238-2018
`
`BEFORE: SHOGAN, J., STABILE, J., and KING, J.
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`MEMORANDUM BY KING, J.:
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`FILED OCTOBER 15, 2020
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`Appellant, Lovell Marvelous Johnson, appeals from the order entered in
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`the Erie County Court of Common Pleas, dismissing his first petition under the
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`Post Conviction Relief Act (“PCRA”).1 After careful review, we reverse and
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`remand for reinstatement of Appellant’s direct appeal rights nunc pro tunc.
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`The relevant facts and procedural history of this appeal are as follows.
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`The Commonwealth charged Appellant with multiple offenses related to his
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`participation in an armed robbery. On January 14, 2019, Appellant entered a
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`negotiated plea of nolo contendere to one count of conspiracy to commit
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`robbery. Following the completion of written and oral colloquies, the court
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`accepted Appellant’s plea and imposed the recommended sentence of six (6)
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`____________________________________________
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`1 42 Pa.C.S.A. §§ 9541-9546.
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`J-S43039-20
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`to twelve (12) years’ imprisonment. Pursuant to the plea agreement, the
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`Commonwealth withdrew the remaining charges.
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`Despite having appointed counsel,2 Appellant submitted four pieces of
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`pro se correspondence to the trial court between January 16, 2019 and
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`January 24, 2019. Among other things, Appellant’s pro se submissions: 1)
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`requested the withdrawal of the nolo contendere plea; 2) alleged that plea
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`counsel was ineffective; and 3) asked for information regarding the deadline
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`for filing a notice of appeal. Pursuant to Pa.R.Crim.P. 576(A)(4), the clerk of
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`courts docketed the pro se correspondence and forwarded it to plea counsel.
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`On February 4, 2019, plea counsel filed a motion to withdraw
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`representation. Plea counsel asserted that Appellant’s allegations of
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`ineffectiveness against her were meritless. Based on these allegations,
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`however, plea counsel requested permission to withdraw. Plea counsel also
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`asked the court to accept Appellant’s pro se correspondence as properly filed
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`post-sentence motions. On February 5, 2019, the court permitted plea
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`counsel to withdraw and accepted the pro se correspondence as timely filed
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`post-sentence motions seeking the withdrawal of Appellant’s plea. On
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`February 7, 2019, the court denied the post-sentence motions. The court’s
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`____________________________________________
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`2 On December 29, 2017, Appellant filed a pro se application for appointed
`counsel, certifying that he was unable to afford private counsel. Although the
`record does not contain a corresponding order disposing of the application,
`court-appointed counsel represented Appellant throughout the proceedings in
`the trial court. Further, this Court’s docket continues to list Appellant as
`having in forma pauperis status.
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`order included the following notation regarding Appellant’s right to counsel:
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`[Appellant] has the right to assistance of counsel in the
`preparation of any appeal. If [Appellant] cannot afford an
`attorney, one will be appointed to represent him. An
`application can be obtained and filed with the Erie County
`Public Defender’s Office ….
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`(Order, entered 2/7/19, at ¶2). The court took no further actions to determine
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`whether Appellant desired to proceed pro se or with new counsel.
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`On February 19, 2019, Appellant submitted a pro se letter to the trial
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`court inquiring about the assignment of new counsel. The clerk of courts
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`docketed this letter, but the court did not issue a formal response. On March
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`4, 2019, Appellant filed a pro se motion for the appointment of counsel. The
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`court denied Appellant’s pro se motion on March 7, 2019, reiterating that he
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`could apply for counsel through the public defender’s office.
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`On April 4, 2019, Appellant filed a pro se motion explaining that the
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`public defender’s office could not represent him because it had represented
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`his co-defendant. Before the court could address this motion, Appellant filed
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`a pro se notice of appeal from his judgment of sentence on April 5, 2019. By
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`order entered April 15, 2019, the court appointed new counsel (“direct appeal
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`counsel”) to represent Appellant on appeal.
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`Direct appeal counsel
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`subsequently filed a motion to quash Appellant’s appeal as untimely, which
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`this Court granted on August 19, 2019.
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`Despite the fact that he was still represented by direct appeal counsel,
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`Appellant filed a pro se PCRA petition on September 3, 2019. Again, the clerk
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`of courts docketed the pro se petition and forwarded it to counsel. On
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`September 10, 2019, direct appeal counsel filed a motion to withdraw
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`representation, stating he filed the motion to quash the untimely appeal “so
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`that [Appellant] could pursue a timely PCRA petition.” (Motion, filed 9/10/19,
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`at ¶2). That same day, the court granted the withdrawal motion, appointed
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`current counsel (“PCRA counsel”), and directed PCRA counsel to file an
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`amended PCRA petition.
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`On October 30, 2019, PCRA counsel filed an amended petition on
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`Appellant’s behalf. The amended petition alleged that Appellant asked plea
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`counsel to pursue a direct appeal from the judgment of sentence, but plea
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`counsel ignored Appellant’s request. The PCRA court conducted an evidentiary
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`hearing on December 17, 2019. Appellant and plea counsel both testified at
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`the hearing. At the conclusion of the hearing, PCRA counsel raised an
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`additional argument that “there was a gap in terms of [Appellant’s] legal
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`representation,” from the time plea counsel withdrew until the court appointed
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`direct appeal counsel. (N.T. Hearing, 12/17/19, at 46). PCRA counsel
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`observed that the gap in representation deprived Appellant of the opportunity
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`to file a timely notice of appeal. (See id.)
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`By order and opinion entered December 20, 2019, the court denied
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`PCRA relief. Specifically, the court credited plea counsel’s testimony that
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`Appellant did not ask her to file a notice of appeal. Further, the court noted:
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`“The February 7, 2019 order [denying Appellant’s pro se post-sentence
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`motion] notified [Appellant] of the thirty day appeal period, and no act or
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`failure to act by any attorney precluded him from perfecting a timely appeal.”
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`(Order and Opinion, entered 12/20/19, at 4).
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`Appellant timely filed a notice of appeal on January 16, 2020. On
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`January 23, 2020, the court ordered Appellant to file a Pa.R.A.P. 1925(b)
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`concise statement of errors complained of on appeal. Appellant timely filed
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`his Rule 1925(b) statement on February 13, 2020.
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`Appellant now raises two issues for our review:
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`Whether the [PCRA] court erred in failing to grant PCRA
`relief in the nature of reinstatement of appellate rights
`wherein
`Appellant
`satisfied
`his
`burden
`under
`[Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564
`(1999)] or alternatively [plea] counsel failed to investigate
`or discern that Appellant’s communications as to withdrawal
`of his pleas equated to the statement of an intention to
`exercise his appellate rights, which ultimately was not
`preserved by counsel?
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`Whether the [trial] court erred in depriving Appellant of his
`right to counsel during a critical stage of the case in that the
`court permitted [plea counsel] to withdraw from the case
`yet then failed to timely appoint new counsel during the
`appeal period relating to the court denying Appellant leave
`to withdraw his no contest plea?
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`(Appellant’s Brief at 2).
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`We begin by addressing Appellant’s second issue, which is dispositive.
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`Appellant argues the trial court’s decision to allow plea counsel to withdraw
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`“served to create a ‘gap’ in his continuing right to legal counsel during a critical
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`stage” of the proceedings, and “the subsequent appointment of [direct appeal
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`counsel] after some passage of time failed to ensure [A]ppellant’s capacity to
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`exercise his appellate rights in a timely manner.” (Id. at 8). Appellant
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`concludes this Court must remand the matter for reinstatement of his direct
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`appeal rights nunc pro tunc. We agree.
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`Our standard of review of the denial of a PCRA petition is limited to
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`examining whether the evidence of record supports the court’s determination
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`and whether its decision is free of legal error. Commonwealth v. Conway,
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`14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795
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`(2011). This Court grants great deference to the factual findings of the PCRA
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`court if the record contains any support for those findings. Commonwealth
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`v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932
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`A.2d 74 (2007). We give no such deference, however, to the court’s legal
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`conclusions. Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012).
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`“A criminal defendant’s right to counsel is guaranteed by the Sixth
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`Amendment to the United States Constitution and Article I, Section 9 and
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`Article V, Section 9 of the Pennsylvania Constitution.” Commonwealth v.
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`Clyburn, 42 A.3d 296, 298 (Pa.Super. 2012).
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`[T]he United States Supreme Court has consistently held
`that the Sixth Amendment right to counsel does not attach
`until a prosecution is commenced, i.e., until the initiation of
`adversary judicial criminal proceedings—whether by way of
`formal charge, preliminary hearing, indictment, information,
`or arraignment.
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`Once attachment of the Sixth Amendment right to counsel
`has occurred, the accused at least is entitled to the presence
`of appointed counsel during any ‘critical stage’ of the post[-
`]attachment proceedings.
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`Commonwealth v. Padilla, 622 Pa. 449, 474-75, 80 A.3d 1238, 1252-53
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`(2013), certiorari denied, 573 U.S. 907, 134 S.Ct. 2725, 189 L.Ed.2d 769
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`(2014) (internal citations and quotation marks omitted). “The direct appeal
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`is such a critical stage.” Commonwealth v. Franklin, 823 A.2d 906, 909
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`(Pa.Super. 2003).
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`Additionally, Pennsylvania Rule of Criminal Procedure 120 states: “An
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`attorney who has been retained or appointed by the court shall continue such
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`representation through direct appeal or until granted leave to withdraw by the
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`court pursuant to paragraph (B).” Pa.R.Crim.P. 120(A)(4). Counsel may
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`withdraw by filing a motion with the clerk of courts. Pa.R.Crim.P.
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`120(B)(2)(a). Nevertheless, Rule 120 also requires:
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`(3) Upon granting leave to withdraw, the court shall
`determine whether new counsel is entering an appearance,
`new counsel is being appointed to represent the defendant,
`or the defendant is proceeding without counsel.
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`Pa.R.Crim.P. 120(B)(3) (emphasis added).
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`The Comment to Rule 120
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`explains:
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`The court must make a determination of the status of a case
`before permitting counsel to withdraw. Although there are
`many factors considered by the court in determining
`whether there is good cause to permit the withdrawal of
`counsel, when granting leave, the court should determine
`whether new counsel will be stepping in or the defendant is
`proceeding without counsel, and that the change in
`attorneys will not delay the proceedings or prejudice the
`defendant, particularly concerning time limits.
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`Pa.R.Crim.P. 120—Comment.
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`Where a defendant is entitled to counsel, either constitutionally or rule-
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`based, a colloquy is required to make certain that any waiver of the right or
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`entitlement is voluntary, knowing, and intelligent. See Pa.R.Crim.P. 121
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`(setting forth procedure judge must follow to ensure waiver of counsel is
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`knowing, voluntary, and intelligent). See also Commonwealth v. Neal, 563
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`A.2d 1236, 1243 (Pa.Super. 1989), appeal denied, 525 Pa. 597, 575 A.2d 564
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`(1990) (holding trial court denied defendant his constitutional right to counsel
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`by dismissing public defender and forcing defendant to proceed pro se;
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`defendant “was literally forced by the court to represent himself without being
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`apprised of the consequences and pitfalls thereof”); Commonwealth v.
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`Brown, 476 A.2d 381, 388 (Pa.Super. 1984) (holding defendant did not waive
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`right to counsel where he was unable to afford attorney and court did not
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`conduct “penetrating and comprehensive examination” of all circumstances
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`pertaining to any waiver of right to counsel).
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`Instantly, plea counsel filed a motion to withdraw representation after
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`the court imposed Appellant’s sentence. The court subsequently permitted
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`plea counsel to withdraw without determining whether it needed to appoint
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`new counsel or whether Appellant wanted to proceed pro se. See Pa.R.Crim.P.
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`120(B)(3), Comment. Instead, the court burdened Appellant with the task of
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`contacting the public defender’s office, despite Appellant’s filing of a pro se
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`motion for the appointment of new counsel. Moreover, the court compounded
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`its error by failing to conduct a colloquy before forcing Appellant to proceed
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`pro se during the period for filing a timely notice of appeal. See Pa.R.Crim.P.
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`121.
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`The court’s non-compliance with Rule 120 effectively foreclosed direct
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`appeal and amounted to a denial of counsel. Compare Commonwealth v.
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`Mikell, 968 A.2d 779, 781 (Pa.Super. 2009), appeal denied, 604 Pa. 688, 985
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`A.2d 971 (2009) (reiterating “an accused who is deprived entirely of his right
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`of direct appeal by counsel’s failure to perfect an appeal is per se without the
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`effective assistance of counsel, and is entitled to reinstatement of his direct
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`appellate rights”).
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`Thus, the court erred in permitting plea counsel to
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`withdraw without complying with Rule 120(B)(3). Accordingly, we reverse
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`and remand for reinstatement of Appellant’s direct appeal rights nunc pro
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`tunc.3
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`Order reversed; case remanded with instructions. Jurisdiction is
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`relinquished.
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`____________________________________________
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`3 On September 17, 2020, Appellant filed a pro se application for appointment
`of counsel with this Court. In his application, Appellant claims PCRA counsel
`failed to: 1) correspond with Appellant; 2) file certain motions requested by
`Appellant; and 3) make reasonable efforts to litigate Appellant’s PCRA claims.
`In light of our disposition, and mindful of judicial economy, we deny
`Appellant’s application without prejudice to his ability to re-raise his
`arguments upon remand.
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`Judgment Entered.
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`Joseph D. Seletyn, Esq.
`Prothonotary
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`Date: 10/15/2020
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