Com. v. Mackrides, G. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GEORGE MACKRIDES III :
:
Appellant : No. 1290 EDA 2020
Appeal from the Judgment of Sentence Entered June 17, 2020,
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0002467-2019
BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY LAZARUS, J.: FILED: MAY 21, 2021
George Mackrides III appeals from the judgment of sentence, entered
in the Court of Common Pleas of Montgomery County, following his
convictions, after a bench trial, of one count each of robbery of a motor vehicle
(F-1),1 robbery—take property from other/force (F-3),2 and theft by unlawful
taking or disposition (F-3);3 five counts of simple assault (M-2);4 eleven
counts of recklessly endangering another person (REAP) (M-2);5 six counts of
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1 18 Pa.C.S. § 3702(a).
2 18 Pa.C.S. § 3701(a)(1)(v).
3 18 Pa.C.S. § 3921(a).
4 18 Pa.C.S. § 2701(a).
5 18 Pa.C.S. § 2705.
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the summary offense of harassment;6 and four counts each of criminal
attempt—robbery of a motor vehicle (F-1)7 and criminal attempt—theft by
unlawful taking (F-3).8 After careful review, we vacate and remand for a new
trial.
Mackrides’ convictions arose from of a ten-hour crime spree, in March
2019, where he committed a vehicle theft and several attempted vehicle thefts
in Whitpain Township.9 Mackrides aggressively forced his way into the victims’
vehicles while the victims were either inside or immediately outside of their
respective vehicles.
Mackrides was represented at trial by Assistant Public Defender Denise
Marone, Esquire, who entered her appearance in the matter on June 12, 2019,
and remained as the attorney-of-record throughout sentencing. Beginning in
July 2019,10 and continuing until after sentencing in June 2020, Mackrides
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6 18 Pa.C.S. § 2709(a)(1).
7 18 Pa.C.S. § 901(a).
8 18 Pa.C.S. § 901(a).
9 See Trial Court Opinion, 10/8/22, at 1-5 (providing detailed account of facts
underlying case).
10 On July 5, 2019, the court rescheduled a pre-trial conference upon the
defense’s request. On August 8, 2019, the court, upon the request of the
defendant, amended the pre-trial conference order and scheduled the call of
the trial list for September 2019.
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filed several pro se letters with the Montgomery County Clerk of Courts11 and
the trial judge indicating his displeasure with trial counsel’s representation.12
In one of those letters, dated September 11, 2019, Mackrides stated:
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11The clerk of courts forwarded those pro se filings to counsel pursuant to
Pa.R.Crim.P. 576(A)(4).
12 Those letters included the following sentiments toward counsel:
• he is “asking that [she] help him with this case at hand and give [him]
100% because it seems that [she] didn’t want to help at all. [I] am
asking for what I am due[,] that is[,] for you to help me with this
situation. [She has] been [his] public defender for all over [sic] 2
months [and he] spoke to [her] 1 time;”
• he “would like [his] public defender removed from [his] case because
[they’re] not seeing eye to eye about how he would like to approach [his
case],” . . . and it seems to [him that] she isn’t trying to help [him with]
anything;”
• he notes that “it is imperative that this is noted on [the] record[] that
[he] would like to relieve Ms. Denise Marone of her duties, as her
strategies are not to the best of [his] interest [and] it is pertinent to
note that [he] ha[s] tried to contact Ms. Marone and ha[s] filed
motions[] which benefit [him] and [his] defense that Ms. Marone has
blatantly ignored[. Therefore, he] ask[s] the Honorable Judge to honor
[his] request and appoint [him] new counsel;”
• he “would like to releave [sic] Ms. Denise Marone of her duties and get
a court[-]appointed law[y]er [because] she isn’t handling [his] case to
the best of her duties [where he] asked her to put motions in [and] . .
. tried to contact her multiple times through the consults [sic] which she
never returns my calls;”
• he “do[esn’t] feel right going to trial wit[h] her [where she] isn’t
following the steps [he] would like her to[],” [and so] ‘I am . . . asking
that you help me with this case at hand and give me 100% because it
seems that you do not want to help at all[;]’” “for all o[f] [two] months
[he] spoke to [Marone one] time and [she told him] about a deal that
was not appropriate;”
(Footnote Continued Next Page)
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It is imperative that this is noted on record, that I would like to
relieve Ms. Denise Marone of her duties, as her strategies are not
to the best of my interest. It is pertinent to note that I have tried
to contact Ms. Marone, and have filed motions, which benefit me
and my defense that Ms. Marone has blatantly ignored. I ask the
Honorable Judge to honor my request and appoint me new
counsel, court[-a]ppointed preferable. Thank you for your time
and help in this matter.
Letter to Montgomery County Clerk of Courts, 9/11/19.
Immediately prior to proceeding to his waiver trial, Mackrides moved for
a continuance to secure private counsel. The following exchange took place,
on the record, between Mackrides and the trial judge, regarding the
continuance request:
THE COURT: All right, well the attorneys tell me now that
you asked for a continuance. I deny that request. We’ll
proceed to trial.
Do you want a jury or a bench trial today?
[ATTORNEY MARONE]: Your Honor, the reason he is asking
for a continuance is so his family can hire private counsel.
THE COURT: That request is denied. This is the day of trial.
Do you want a bench or a jury trial?
[MACKRIDES]: I’ll take the bench, because you [are] pushing me
against the wall. I’ll take the bench.
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• he asks Attorney Marone to “put in [his] appeal . . . and get cop[ie]s of
the transcripts of the bench trial [and that he] would like [her] help in
the matter;” and
• he “would like it duly noted on record” that he “asked Denise Marone to
file [his] appeal[,] but [he] s[aw that] she didn’t so [he’s] asking for a
court[-]appointed law[yer] or public defender in the matter[.]’”
See Pro Se Letters, 7/17/19, 8/8/19, 9/17/19, 10/14/19, 12/12/19,
6/1/20, 6/6/20.
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THE COURT: [Counsel] has to go over some paperwork with you.
And if I don’t get this resolved in about five minutes, we’ll bring
up a jury and pick a jury.
[MACKRIDES]: You can’t pick a jury without me. I’m supposed
to be able to pick certain[. . .]
THE COURT: I’m just asking you: Do you want a jury or do you
want a bench trial?
[MACKRIDES]: I’m asking you – it seem[s] to me -- can I
say something, sir? I asked to get another counsel.
THE COURT: That request is denied. It’s not timely. There
is case law that suggests that that’s improper to grant a
continuance under those circumstances.
[MACKRIDES]: I[‘ve] been asking about it. I have been
saying stuff about it for the last six months.
THE COURT: Well, that’s enough. I guess we’ll pick a jury. That’s
what you want, a jury brought up here?
[MACKRIDES]: You can’t pick a jury without me. I have my
rights. You have to follow the law.
THE COURT: Well, let me tell you something. If you act up and
disrupt --
[MACKRIDES]: I’m not acting up in any degree.
THE COURT: -- when I bring these people up here, I’ll have you
removed and we’ll have the trial without you.
[MACKRIDES]: Sir, I’m only speaking on what I’m due.
That’s it. I’m due []effective counsel, and I said something
about this for six months. I’m not acting up. I’m not saying
anything wrong. I’m saying what is due to me.
You’re making it seem like [. . . ]
THE COURT: Miss Marone will represent you at this trial.
And if you speak up like you are doing now during the time when
we have the jurors in the room, then I’ll have you removed until
you behave.
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[MACKRIDES]: That’s what you[‘re] probably going to have to do,
because you’re not giving me a fair shot. You don’t do that to
anybody else.
THE COURT: So you’re telling me I’ll probably have to have you
removed?
[MACKRIDES]: No, that’s what you’re saying. You’re saying
I’m not allowed to speak up about my rights. These are my
rights. How can I not speak up about my rights? It’s the
law. You have to follow the law.
THE COURT: Well, sir, as I told you before, Miss Marone will
represent you, unless you want to represent yourself.
[MACKRIDES]: Sir, I’ve been asking her to step down to
give me another appointed counsel.
THE COURT: That won’t happen. That request is denied.
That’s an improper request.
[MACKRIDES]: How? You’re not giving me a fair shot at trial.
THE COURT: All right, then bring the jury up, please.
[MACKRIDES]: I asked for a bench trial. I didn’t ask for a jury
trial.
N.T. Bench Trial, 12/9/19, at 9-13 (emphasis added).
After denying the continuance request, the court proceeded to a non-
jury trial on December 9, 2019, after which Mackrides was found guilty of the
aforementioned offenses. Mackrides was sentenced to an aggregate term of
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7½ to 15 years’ imprisonment.13 The court also ordered Mackrides pay
$4,978.39 in restitution14 and the costs of prosecution.15
Mackrides filed a timely pro se notice of appeal.16 After seeking and
receiving an extension, newly-appointed appellate counsel filed a timely court-
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13 Mackrides was sentenced to 5 to 10 years’ imprisonment on count 1
(robbery), a concurrent sentence of 1 to 5 years on count 2 (robbery-taking
property from other/force), a concurrent sentence of 2½ to 5 years’
imprisonment on counts 28-30 (criminal attempt), and a consecutive sentence
of 2½ to 5 years on count 27 (criminal attempt). Counts 3-7, 8-11, 13-14,
and 31-34 merged for sentencing purposes. The Commonwealth did not
proceed on the remaining counts.
14 The restitution represented the insurance deductible ($3,978.39) and cost
of repairs on one of the victim’s vehicles ($1,000).
15 The trial court’s June 17, 2020 order “determining costs” solely lists the
amount of restitution Mackrides was ordered to pay; there is no specific
amount set forth for the costs of prosecution. However, the court’s December
9, 2019 sentencing order specifically states that “Defendant is sentenced to
pay the costs of prosecution and restitution of $4,978.39 . . . within the
first 48 months of supervision in monthly installments as directed, and as
authorized by law.” See Sentencing Order, 12/9/19, at 2 (emphasis added).
16 Mackrides filed two pro se notices of appeal—one on June 23, 2020, and
the other on July 17, 2020. There is nothing on the docket indicating that
Attorney Marone had been relieved of her duties at the time Mackrides filed
his pro se notices of appeal. In fact, the docket shows that a copy of
Mackrides’ June 23, 2020 notice of appeal was “forward[ed] to Attorney on
Record[,] Denise Marone, Esq. 06/24/20.” Docket Entry, 6/23/20. However,
on June 1, 2020, Mackrides wrote a letter to the trial judge stating that he
“would like it duly noted on [the] record [that he had] asked Denise
Marone to file [his] appeal, but [that he] see[s] she didn’t.” Letter,
6/1/20 (docketed by Montgomery County Clerk of Courts on 7/17/20)
(emphasis added). Interestingly, on June 25, 2020, the court granted
Mackrides’ pro se motion to proceed in forma pauperis with regard to his filing
fee for his appeal and request of transcript, sending those orders directly to
Mackrides in jail and not to Attorney Marone. Notably, on July 7, 2020, Lee
(Footnote Continued Next Page)
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ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal.17 Mackrides raises the following issues for our consideration:
(1) Did the [t]rial [c]ourt err in denying [Macrkrides’] request
for a continuance so that his family could hire private
counsel?
(2) Did the [t]rial [c]ourt err in imposing costs of prosecution
without considering [Mackrides’] ability to pay and his
restitution obligation?
Appellant’s Brief, at 2.
In his first issue on appeal, Mackrides contends that the trial court erred
in denying his request for a continuance so that his family could hire private
counsel for his trial. Specifically, Mackrides argues that he told the trial judge
that current counsel was ineffective, but that the court did not inquire into the
reasons why Mackrides believed that counsel’s performance was subpar or
why he was requesting a continuance to hire new counsel. Id. at 9. Finally,
Mackrides claims that such a hasty decision to deny his request was an abuse
of discretion where he had been asking to obtain new counsel for six months
prior to trial.
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Awbrey, Esquire, from the Montgomery County Public Defendant’s Office,
entered her appearance on behalf of Mackrides.
17 On June 23, 2020, Mackrides sought, pro se, and was granted in forma
pauperis (IFP) status. In his verified IFP statement, he stated that he was
“unable to seek financial assistance from family and friends.” IFP Petition,
6/23/20. Although this statement seems contrary to his assertion at trial that
his family would hire private counsel for him, this statement was verified six
months after trial and, as duly noted, it does not relieve the court from
conducting an inquiry into how and when Mackrides planned to secure private
counsel.
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Appellate review of a trial court’s continuance decision is
deferential. “The grant or denial of a motion for a continuance is
within the sound discretion of the trial court and will be reversed
only upon a showing of an abuse of discretion. As we have
consistently stated, an abuse of discretion is not merely an error
of judgment. Rather, discretion is abused when ‘the law is
overridden or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-will,
as shown by the evidence or the record[.]’” Commonwealth v.
Randolph, [] 873 A.2d 1277, 1281 (Pa. 2005) (quoting
Commonwealth v. McAleer, [] 748 A.2d 670, 673 (Pa. 2000)
(internal citations omitted)).
Commonwealth v. Brooks, 104 A.3d 466, 469 (Pa. 2014).
In Commonwealth v. Broitman, 217 A.3d 297 (Pa. Super. 2019), our
Court noted that “a defendant’s constitutional right to counsel of his choice is
not absolute and ‘must be weighed against[,] and may be reasonably
restricted by[,] the state’s interest in the swift and efficient administration of
criminal justice.’” Id. at 300 (citation and internal quotation marks omitted).
Moreover, “[a] trial court has ‘wide latitude in balancing the right to counsel
of choice against the needs of fairness . . . and against the demands of its
calendar.’” Id. (citation omitted). In that vein, our Court has noted that a
defendant’s right to choose private counsel “must be exercised at a reasonable
time and in a reasonable manner.” Commonwealth v. Rucker, 761 A.2d
541, 542-43 (Pa. 2000).
In Commonwealth v. Prysock, 972 A.2d 539 (Pa. Super. 2009), our
Court expounded on the erroneous deprivation of a defendant’s Sixth
Amendment right to private counsel, stating:
where a criminal defendant makes a showing that he has been
erroneously deprived of the right to representation of the counsel
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of his choice, he is neither required to demonstrate that he was
prejudiced nor that the deprivation did not constitute harmless
error. Rather, . . . such a violation is a structural error which
pervades an entire trial.
Id. at 542, citing United States v. Gonzalez-Lopez, 548 U.S. 140, 148-50,
(2006). In Prysock, supra, this Court set forth the following factors to
consider on appeal from a trial court’s ruling on a continuance motion to obtain
private representation: (1) whether the court conducted an extensive inquiry
into the underlying causes of the defendant’s dissatisfaction with current
counsel; (2) whether the defendant’s dissatisfaction with current counsel
constituted irreconcilable differences; (3) the number of prior continuances;
(4) the timing of the motion for continuance; (5) whether private counsel had
actually been retained; and (6) the readiness of private counsel to proceed in
a reasonable amount of time. Id. at 543. See Pa.R.Crim.P. 106 (D) (“A
motion for continuance on behalf of the defendant shall be made not later
than 48 hours before the time set for the proceeding. A later motion shall be
entertained only when the opportunity therefor did not previously exist, or the
defendant was not aware of the grounds for the motion, or the interests of
justice require it.”).
Analyzing the Prysock factors, the record reveals that the court did not
inquire at all, let alone “extensive[ly],” into Mackrides’ dissatisfaction with trial
counsel or whether his dissatisfaction with counsel constituted irreconcilable
differences and did not discuss the number of prior continuances that had
been granted in the matter. Prysock, supra at 543. However, the record
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shows that the court considered the fact that Mackrides waited until the day
of trial to request a continuance so that his family could hire private counsel.18
In Brooks, supra, our Supreme Court reversed our Court’s decision
that reversed the defendant’s judgment of sentence and remanded the case
for a new trial on the basis that the trial court had denied the defendant’s
request for a continuance so that he could prepare to proceed to trial pro se.
On discretionary review, the Supreme Court noted that the record revealed,
among other things, that the trial court “had the benefit of specific
reassurances from trial counsel” regarding any unresolved issues counsel and
the defendant had. Id. at 539. Specifically, “[c]ounsel represented that he
had discussed such matters related to his representation with [the defendant],
and after questioning counsel, the court determined that counsel indeed was
well-prepared; counsel, an officer of the court, in fact pronounced himself
‘extraordinarily well prepared.’” Id. at 539-40 (citations to record omitted).
Citing to a United States Supreme Court case, Morris v. Slappy, 461 U.S. 1(1983), the Brooks Court noted that “[i]n the face of the unequivocal and
uncontradicted statement by a responsible officer of the court that he was
fully prepared and ‘ready’ for trial, it was far from an abuse of discretion to
deny a continuance.” Id. at 540 (citing Morris, supra at 12).
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18 The fact that Mackrides asked for a continuance so his family could retain
private counsel seems to suggest that private counsel had not yet, in fact,
been retained.
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In Commonwealth v. Robinson, 364 A.2d 665 (Pa. 1976), our
Supreme Court noted that “[t]here are no mechanical tests for deciding when
a denial of a continuance is so arbitrary as to violate due process. The answer
must be found in the circumstances present in every case, particularly in
the reasons presented to the trial judge at the time the request is
denied.” Id. at 594 (emphasis added; citation omitted). With this scope in
mind, we must fully examine the tenor and content of the discourse that
occurred regarding Mackrides’ continuance request. See supra at 4-6.
Here, the trial judge never gave Mackrides an opportunity to present his
reasons for asking for a continuance. Robinson, supra. Cf. Morris, supra
at 544 (noting trial court’s awareness of circumstances surrounding
defendant’s request for continuance where court colloquied defendant and had
extensive exchange with counsel). Additionally, Attorney Marone never
indicated that she had discussed with her client the issues he had been having
regarding her representation or indicated to the court that she was fully
prepared to represent Mackrides at trial. Cf. Brooks, supra. In fact, the trial
judge never even questioned counsel about her relationship with Mackrides.
The trial court’s instantaneous ruling, without any measured weighing of
Mackrides’ right to choose his own counsel against the state’s interest in the
swift and efficient administration of criminal justice, is hardly a “careful
consideration of the matter.” Cf. Commonwealth v. Sandusky, 77 A.3d
663, 672 (Pa. Super. 2013). The trial judge never inquired into Mackrides’
long-standing displeasure with his trial counsel; in fact, the court cut
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Mackrides off every time he tried to explain his situation. The court’s conduct
is especially egregious where, for over four months preceding trial, Mackrides
had repeatedly expressed his dissatisfaction with counsel’s representation in
pro se correspondence sent to the court and the clerk of courts and no hearing
was held to determine whether, in fact, court-appointed counsel should be
replaced. Cf. Commonwealth v. Keaton, 45 A.3d 1050 (Pa. 2012) (where
defendant filed single pro se petition for withdrawal of counsel two months
prior to trial, different trial judge held an in camera hearing on petition prior
to trial).
Additionally, there was no on-the-record determination by the trial
judge, prior to ruling on the continuance motion, that Attorney Marone had
adequately represented Mackrides up to and until the time of trial. Cf.
Sandusky, supra (where trial court notes defense team “was assuredly
capable”); Brooks, supra at 535 (trial judge noted on record at time of
continuance request that defendant’s appointed trial counsel had “obtained a
lot of evidence, a lot of discovery and had prepared for trial”). In fact, three
of the four filings initiated by Attorney Marone19 prior to trial were precipitated
by Mackrides filing a pro se petition or motion of the same ilk, which he sent
to counsel and asked her to file on his behalf. See Pro Se Motion to Reduce
Bail, 7/22/19; Pro Se Petition to Dismiss for Lack of Speedy Trial/Rule 600,
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19 On her own initiative, Marone filed a request for pre-trial discovery,
pursuant to Pa.R.Crim.P. 572, and an omnibus pre-trial motion to suppress on
June 12, 2019.
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9/10/19; Pro Se Rule Petition for Nominal Bail for Lack of Speedy Trial,
9/17/19. Finally, there is also nothing in the record showing that the
Commonwealth opposed the requested continuance or indicated that it would
suffer prejudice if a continuance were granted.20 Cf. Broitman, supra.
While the timing of a continuance request, particularly within the 48
hours preceding trial, may support a trial judge’s determination to deny the
request, the decision “must [also] be combined with other circumstances.”
Morris, supra at 544; Pa.R.Crim.P. 106(D). Here, the trial court’s sole reason
for denying the continuance was the fact that it had been requested on the
day of trial and, therefore, it “was not timely.” See N.T. Non-Jury Trial,
12/9/19, at 9-13. The court never discussed any other factors or
circumstances that went into its snap decision to deny the request.
Specifically, the court did not discuss prior continuance requests made by
Mackrides, did not determine that the case had been unreasonably delayed to
that point, or inquire into how soon and by what means Mackrides’ family
would be able to secure private counsel for him. Cf. Brooks, supra at 543-
44 (“[T]he record in this case reveals that the trial court did more than just
simply deny the request for a continuance. The court was aware of the
circumstances surrounding [the defendant’s] request; the court’s colloquy of
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20 In its brief, the Commonwealth contends that Mackrides’ “differences with
appointed counsel were not irreconcilable[] and he was not prejudiced by the
denial of the continuance.” Appellee’s Brief, at 14. However, there is nothing
in the record evidencing the tenor of the attorney-client relationship or how
Mackrides would have prepared differently had he been given alternative
counsel.
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appellee, and its exchanges with counsel, properly informed its exercise of
discretion.”). Similarly, in Prysock the trial court relied on a single factor in
making its decision to deny the defendant’s requested continuances. Id. at
544. Specifically, the record reflected that the trial court failed to make any
inquiry whatsoever into the nature of the dispute between the defendant and
appointed counsel, and only based its decision on one reason—the fact of a
prior continuance. Id. In vacating the defendant’s judgment of sentence and
remanding for a new trial, our Court highlighted the fact that the trial court
“failed to make the type of detailed factual findings that we have previously
commended and in their absence [we] have found an abuse of discretion.”
Id. at 544-45.
In its Rule 1925(a) opinion, the trial judge discussed how trial had
originally been scheduled for September 16, 2019, and how “[Mackrides] had
never previously informed th[e c]ourt of his wish to hire private counsel . . .
despite his representation that he has wanted to replace his current
counsel for about six months.” Trial Court Opinion, 10/8/20, at 9
(emphasis added). It seems reasonable that the court’s knowledge of
Mackrides’ longstanding issues with counsel’s representation would have
prompted some sort of inquiry or hearing prior to the start of trial. The court
also cites Rule 106(D) in its opinion to support its conclusion that Mackrides’
request was “untimely [and] not exercised at a reasonable time or in a
reasonable manner,” id., and states that “to grant the request and to postpone
the trial would have created an undue burden for the ten Commonwealth
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witnesses who were present and ready to proceed.” Id. Notably, these are
after-the-fact justifications given by the trial court for denying Mackrides’
continuance request prior to trial. As previously stated, the Commonwealth
did not object on the record to Mackrides’ continuance request at or prior to
trial.
The trial court cites to Commonwealth v. Boettcher, 459 A.2d 806(Pa. Super. 1983), to support its decision to deny Mackrides’ request for a
continuance. The facts of that case, however, differ from the instant case. In
Boettcher, while the defendant was also represented up until trial by the
public defender and his request for a continuance was made on the day trial
was scheduled to begin, our Court stated that it was “clear from a review of
the record that the public defender was well-prepared for trial and afforded
[the defendant] a vigorous and well-conceived defense.” Id. at 810.
Moreover, our Court noted that “the trial court carefully considered other
significant factors in denying [the] continuance request[,]” including: trial
commenced only 29 days before expiration of the Pa.R.Crim.P. 1100 run date;
the Commonwealth was ready to proceed with its witnesses, several of whom
were not local residents, on the first day of the scheduled trial; and the
defendant’s proposed private attorney appeared in the courtroom during jury
selection, but declined to participate in the trial when the court advised him
he could do so immediately. Id.Here, the trial judge explained on the record at trial that his reason for
denying Mackrides’ continuance request was because of its untimeliness. The
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trial judge also told Mackrides that Attorney Marone would represent
Mackrides unless he wanted to represent himself. Id. at 10, 12. The trial
judge, however, neither commented on Attorney Marone’s general trial
competence or her representation of Mackrides up to that point, nor sought
to ascertain whether the attorney-client relationship “had deteriorated to the
point that [Attorney Marone] could not effectively represent him.” Keaton,
supra. Rather, in post hoc reasoning offered in his Rule 1925(a) opinion, the
trial judge states that Mackrides never informed the court, prior to the day of
trial, that he wished to hire private counsel. Trial Court Opinion, 10/8/20, at
9 (trial court noting “[r]ather[, Mackrides] waited until immediately prior to
the trial’s commencement in which to request a continuance in order to hire
private counsel”) (emphasis in original).
Here, Mackrides asserts that “[t]he trial court’s reasoning is flawed
insofar as it focused exclusively on the court’s interest in the swift
administration of justice and did not inquire into [his] interest to the right to
counsel of his choosing.” Appellant’s Brief, at 13. Mackrides also complains
that “the court never permitted [him] to articulate anything more detailed
than the basic request to hire new counsel [despite the fact that he] tried
several times to continue to speak to the court about his request . . . and each
time the court informed [him] that he needed to stop speaking up and
disrupting [the] proceedings.” Id. at 14. We are inclined to agree with
Mackrides’ argument.
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Mackrides was represented up until trial by Attorney Marone,21 an
assistant public defender. The trial court is correct in stating that our courts
have repeatedly condemned waiting until the day of trial to request a
continuance for purposes of retaining new counsel. See Broitman, supra
(where defendant requested new counsel and continuance on eve of trial,
request was not made within reasonable time or in reasonable manner);
Commonwealth v. Nicolella, 452 A.2d 1055 (Pa. Super. 1982) (same);
Commonwealth Kittrell, 427 A.2d 1380 (Pa. Super. 1981) (same).
Additionally, where Mackrides’ motion was made less than 48 hours before
trial, he was required to prove that he is entitled to a continuance under Rule
106 by alleging that the opportunity to seek a continuance to hire private
counsel did not previously exist or that he was not aware of the grounds for
moving for a continuance. Pa.R.Crim.P. 106(D).
Based on the facts of record, however, we believe that the trial court’s
denial of a continuance was an abuse of discretion. The trial court made its
decision without any inquiry, even minimal, into the reasons behind Mackrides’
long-standing dissatisfaction with appointed counsel, counsel’s effectiveness
up to the date of trial, whether the Commonwealth would suffer prejudice
were the continuance granted, whether delaying trial would “unduly disrupt”
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21 The docket entries indicate that Attorney Marone entered her appearance
for Mackrides on June 12, 2019, and represented him through sentencing.
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the efficient administration of justice,22 and how long it would take and what
means he would use to secure new counsel. The court’s dismissive tone
deprived Mackrides of his right to a fair trial with counsel of his choice. In
sum, the record reveals that the court’s decision on the request was anything
but considered; rather, it was based on a single factor—the untimeliness of
the request. Where a trial court denies a request for continuance, discretion
is abused “where the defendant’s right outweighs the Commonwealth’s need
for efficient administration.” Commonwealth v. Pantano, 836 A.2d 948,
950 (Pa. Super. 2003) (citation omitted).
Although case law is clear that a defendant’s constitutional right to
counsel of his own choice is not absolute, it “must be weighed against and
may be reasonably restricted by the state’s interest in the swift and efficient
administration of criminal justice.” Robinson, supra (emphasis added).
Here, the trial court failed to conduct “an extensive inquiry” into the underlying
causes of Mackrides’ dissatisfaction with Attorney Marone, of which it had been
aware for months prior to trial, and forced him to proceed to trial. Under such
circumstances, we conclude that the court’s actions constituted an abuse of
discretion. Cf. Broitman, supra (court properly denied continuance request
where trial court conducted inquiry into defendant’s dissatisfaction with
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22 In fact, only six months had elapsed from the time that Mackrides was
charged in the criminal information until the commencement of trial. Cf.
Commonwealth v. Novak, 150 A.2d 102 (Pa. 1959) (where defendant had
two years in which to procure counsel of his liking, defendant’s right to choose
was not exercised in reasonable time and manner, when he waited until day
of trial to select new counsel).
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counsel, which only amount to legal advice he did not want to accept and court
concluded postponing trial would create undue burden for Commonwealth’s
witnesses who were present and ready to proceed and delay would have
caused “too great of an imposition” on Commonwealth and trial court’s
“already crowded schedule”); Sandusky, supra (trial court’s decision to deny
continuance not arbitrary where it “denote[d] a careful consideration of the
matter” and “d[id] not reflect a myopic insistence upon expeditiousness in the
face” of request).
Here, Mackrides has shown that he has been erroneously deprived of
the right to representation of the counsel of his choice, which amounts to a
structural error that pervaded his entire trial. Prysock, supra; Gonzalez-
Lopez, supra. Under such circumstances, he is entitled to a new trial.23
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23 Although we are remanding for a new trial, we note that Mackrides would
not be entitled to relief on his final claim on appeal in which he contends that
the sentencing court was required to consider his ability to pay prior to
imposing court costs where he is indigent. On March 23, 2021, this Court
issued its decision in Commonwealth v. Lopez, 2021 PA Super 51 (Pa.
Super. 2021) (en banc). Like Mackrides, Lopez challenged the trial court’s
imposition of mandatory court costs without first holding a hearing to
determine his ability to pay, asserting that such a hearing is required under
Pa.R.Crim.P. 706(c) and Commonwealth v. Martin, 335 A.2d 424 (Pa.
Super. 1975) (holding court must hold ability-to-pay hearing when imposing
fine), as well as sections 9721(c.1) and 9728(b.2) of the Sentencing Code.
See 42 Pa.C.S.A. §§ 9721(c.1) and 9728(b.2). In rejecting Lopez’s claim,
this Court concluded that “[w]hen the sections of Rule 706 are read
sequentially and as a whole, as the rules of statutory construction direct, it
becomes clear that [s]ection C only requires a trial court to determine a
defendant’s ability to pay at a hearing that occurs prior to incarceration, as
referenced in [s]ections A and B.” Lopez, supra at *5. While the trial court
maintains the discretion to conduct an ability-to-pay hearing prior to imposing
(Footnote Continued Next Page)
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Judgment of sentence vacated. Case remanded for new trial.24
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/21
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costs, “nothing in the Rules of Criminal Procedure, the Sentencing Code[,] or
established case law takes that discretion away from the trial court unless and
until a defendant is in peril of going to prison for failing to pay the costs
imposed on him.” Id. at *11. Accordingly, Mackrides is entitled to no relief
on his claim regarding costs.
24 At his new trial, if Mackrides again expresses his dissatisfaction with
counsel, the trial judge shall conduct “an extensive inquiry” including, but not
limited to, the underlying cause of this dissatisfaction and whether that
dissatisfaction with counsel constitutes irreconcilable differences entitling him
to new counsel, whether appointed or retained.
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