Com. v. Rogers, G. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GREGORY METZ ROGERS
Appellant No. 1025 MDA 2014
Appeal from the Judgment of Sentence of June 2, 2014
In the Court of Common Pleas of Centre County
Criminal Division at No.: CP-14-CR-0000186-2013
BEFORE: BOWES, J., WECHT, J., and MUSMANNO, J.
MEMORANDUM BY WECHT, J.: FILED DECEMBER 19, 2014
Gregory Metz Rogers appeals from the judgment of sentence entered
on June 2, 2014, after he pleaded guilty to one count each of habitual
offenders and driving under suspension—DUI related.1 We affirm.
On November 18, 2012, Officer M.J. Pieniazek of the State College
Police Department initiated a traffic stop of Rogers’ car because he was
driving without his headlights illuminated during the required period of time.
Subsequently, Officer Pieniazek discovered that Rogers’ driver’s license had
been suspended for five years for a conviction of driving under the influence
on December 7, 2007. On February 26, 2013, the Commonwealth filed an
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1
See 75 Pa.C.S.A. §§ 6503.1, 1543(b)(1). An additional count of
period for requiring lighted lamps, 75 Pa.C.S.A. § 4302(a)(1), was nolle
prossed.
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information against Rogers with the above-mentioned charges. On May 23,
2013, the trial court granted Roger’s unopposed motion for continuance and
waiver of Pa.R.Crim.P. 600. The court subsequently granted four more
unopposed motions for continuance on July 18, 2013, September 18, 2013,
November 20, 2013, and January 24, 2014. Rogers waived his right to a
jury, and the trial court scheduled a non-jury trial for May 2, 2014. Rogers
filed an additional motion for continuance, which the trial court granted on
May 5, 2014, continuing proceedings until June 2, 2014, when Rogers would
enter a guilty plea.
On June 2, 2014, Rogers requested a seventh continuance, claiming
that he still needed additional time to retain privately-hired counsel. Court-
appointed counsel explained that Rogers “has made some payments to
Attorney Tom Dickey out of Altoona. Apparently, Mr. Dickey is awaiting the
additional payment of $200 before he will enter his appearance.” Notes of
Testimony (“N.T.”) Continuance Request, 6/2/2014, at 2. The
Commonwealth opposed, and the trial court denied the request. Id. Rogers
then proceeded to enter written and oral guilty plea colloquies to habitual
offenders and driving under suspension—DUI related. See N.T. Guilty
Plea/Sentencing, 6/2/2014, at 2-3. The trial court immediately sentenced
Rogers to an aggregate period of county incarceration of not less than sixty
days nor more than twenty-three and a half months. See Sentence,
6/2/2014.
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On June 4, 2014, Rogers timely filed a post-sentence motion, seeking
to withdraw his guilty plea and to stay his report date for sentencing pending
appeal. On June 5, 2014, the trial court denied the motion to withdraw
Rogers’ guilty plea but granted the motion to stay his report date. Rogers
timely appealed on June 17, 2014. Pursuant to the trial court’s order, on
July 7, 2014, Rogers timely filed a concise statement of matters complained
of on appeal pursuant to Pa.R.A.P. 1925(b). On July 16, 2014, the trial
court entered its opinion pursuant to Pa.R.A.P. 1925(a).
Rogers raises one question for our review: “Did the [trial c]ourt abuse
its discretion when it denied [Rogers’] Motion for Continuance and Motion to
Withdraw Guilty Plea?” Rogers’ Brief at 7.
Preliminarily, we observe that Rogers has completely abandoned his
challenge to the denial of his post-sentence motion to withdraw his guilty
plea. See id. at 12-13; see also Commonwealth v. English, 699 A.2d
710, 714 n.5 (Pa. 1997) (holding that issue included in statement of
questions presented but not argued in text of brief is waived). Thus, we
address only Rogers’ challenge to the trial court’s denial of his seventh
motion for continuance.
Our standard of review when considering a court’s decision to deny a
motion for a continuance is as follows:
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 that discretion. [A]n
abuse of discretion is not merely an error of judgment.
Rather, discretion is abused when the law is over-ridden or
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misapplied, or the result of partiality, prejudice, bias, or ill-
will as shown by the evidence or the record. The grant of
a continuance is discretionary and a refusal to grant is
reversible error only if prejudice or a palpable and manifest
abuse of discretion is demonstrated.
In reviewing a denial of a continuance, the appellate court must
have regard for the orderly administration of justice, as well as
the right of the defendant to have adequate time to prepare a
defense.
Commonwealth v. Hansley, 24 A.3d 410, 418 (Pa. Super. 2011) (citations
and quotation marks omitted).
In examining whether a trial court abused its discretion in
refusing to grant a continuance for a defendant to retain new
counsel, Pennsylvania courts have historically looked at several
factors. We have generally found that a trial court did not abuse
its discretion in denying a request for a continuance to retain
new counsel where the trial court conducted an “extensive
inquiry” into the underlying causes of defendant’s dissatisfaction
with current counsel and based upon that inquiry determined
that the differences did not constitute “irreconcilable
differences.” Commonwealth v. Floyd, 937 A.2d 494, 496-
500 (Pa. Super. 2007) (collecting cases).
We have also looked to the number of prior continuances in the
matter, the timing of the motion, whether private counsel had
actually been retained, and the readiness of private counsel to
proceed in a reasonable amount of time.
Commonwealth v. Prysock, 972 A.2d 539, 542-43 (Pa. Super. 2009).
In the instant case, Rogers requested a continuance on June 2, 2014
because, although he was represented by appointed counsel, he wished to
retain counsel who was awaiting the payment of $200 before entering an
appearance. In response, the Commonwealth asserted:
With respect to this case, from the time it was reassigned to me,
it was told to me that [Rogers] was going to be entering a guilty
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plea on nonjury trial day. He came in, decided not to do that
and decided to fire [appointed counsel] and hire [retained
counsel]. It still, at this point, hasn’t happened so we’d ask you
to deny the continuance request. And I’d have to, at this point
in time, try and track down and see if my witnesses would be
available for trial.
N.T. Continuance Request at 2. The trial court denied the request and
proceeded to take Rogers’ guilty plea colloquies. Id. at 3. Appointed
counsel indicated that, in completing the written plea colloquy,
[Rogers] checked no, that he has not had enough time to consult
with me about this case. Mr. Rogers is intending on hiring
[retained counsel]. A request for continuance was denied. I told
Mr. Rogers the deal is what has been since it was changed in
April by the Commonwealth. I’ve had numerous conversations
with him about what the plea offer is.
N.T. Guilty Plea at 3. The court accepted the colloquy, noting that “[Rogers]
knew this date was coming up.” Id. at 3. In the oral colloquy, Rogers
agreed that his plea was entered voluntarily, that he understood the nature
of the charges and admitted the conduct upon which they were based, and
the elements and range of sentences and fines for the charges. Id. at 4.
Furthermore, in response to the trial court’s inquiries, he answered:
Q. Did you have an opportunity to discuss this plea with your
current lawyer . . . ?
A. Yes.
Q. And are you satisfied with [appointed counsel’s]
representation of you?
A. Yes.
Id. at 5.
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In the circumstances of this case, Rogers had already been granted six
uncontested motions for continuance. This seventh motion was made more
than fifteen months after the information was filed against him. The
Commonwealth stated that it had been prepared to move forward with a
guilty plea on June 2, 2014, and that if the continuance were granted, it
would have to track down witnesses to prepare for a trial. Furthermore,
Rogers stated that he was satisfied with appointed counsel, who was
prepared to represent him. Conversely, Rogers’ desired retained counsel
had yet to enter an appearance, and there is no indication in the record that
he would be prepared to represent Rogers. See Prysock, 972 A.2d at 542-
43.
The trial court sufficiently inquired into the underlying circumstances of
Rogers’ request for continuance to find that, where Rogers was ably
represented by appointed counsel, there were no irreconcilable differences
which would merit granting the continuance. See, e.g., Commonwealth v.
Carroll, 452 A.2d 260, 263 (Pa. Super. 1982) (finding that trial court did
not abuse discretion in denying continuance to retain new counsel where
“appellant was ably represented by his public defender”). Accordingly, we
conclude that the trial court did not abuse its discretion in denying Rogers’
motion for continuance. See Hansley, 24 A.3d at 418. Rogers’ issue does
not merit relief.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2014
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