Com. v. Demenczuk, W. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
WILLIAM J. DEMENCZUK
Appellant No. 990 EDA 2016
Appeal from the Judgment of Sentence February 22, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005408-2015
BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 23, 2016
Appellant William J. Demenczuk appeals from the judgment of
sentence entered by the Court of Common Pleas of Bucks County after the
trial court convicted Appellant of Driving Under the Influence of a Controlled
Substance (DUI) (incapable of safely driving), fleeing or attempting to elude
a police officer, resisting arrest, and a summary traffic violation. Appellant
claims the trial court abused its discretion in denying his request for a
continuance. After careful review, we affirm.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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On June 21, 2015, after Officer Keith Fennell observed Appellant failed
to yield to a stop sign, he activated his lights and siren in an attempt to
effectuate a traffic stop of Appellant’s vehicle. Appellant did not stop but
continued driving to his residence. When Appellant exited the vehicle, he
began screaming at the Officer Fennell, who noticed an odor of alcohol on
Appellant’s breath. After Officer Fennell called for backup, he conducted
field sobriety testing with Appellant’s consent. Appellant was unable to
recite the alphabet and could not complete the finger-to-nose test.
Once Officer Fennell informed Appellant that he was under arrest for
suspicion of DUI, Appellant became combative and physically resisted the
officers’ attempt to place him in handcuffs. He continued to kick and flail
while the officers put him in the back of the patrol car. Appellant claimed
the officers broke his leg in the struggle. When an officer opened the door
to check on Appellant’s foot, Appellant tried to escape. The officers subdued
Appellant and again placed him in the back of the patrol car. Appellant
refused to submit to chemical testing after being advised of the Pennsylvania
Implied Consent Law.
Appellant was arraigned on June 22, 2015 and his preliminary hearing
was held on August 24, 2015, at which he was represented by private
counsel. The trial court gave Appellant a trial date of November 10, 2015.
On that day, Appellant requested a continuance to allow him to obtain new
private counsel as “financial issues kind of put things on hold.” Trial Court
Opinion (T.C.O.), 6/21/16, at 3. The Honorable Wallace H. Bateman granted
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Appellant’s request and rescheduled Appellant’s trial for December 2, 2015.
Judge Bateman warned Appellant that he would not receive another
continuance to obtain counsel and suggested that if Appellant could not
afford an attorney, he should contact the Public Defender’s Office before
leaving the courthouse.
On November 28, 2015, Appellant was notified that he did not qualify
for representation by a public defender. Upon contacting the court
administrator with this information, Appellant was granted a second
continuance and his trial date was rescheduled to February 22, 2016.
Thereafter, on February 22, 2016, Appellant appeared for his
scheduled trial without counsel and asked Judge Bateman for a third
continuance to obtain counsel as he needed time to “gather the funds to pay
him.” T.C.O. at 5. Judge Bateman noted that the prosecution was ready to
present its case and its witnesses were present. Judge Bateman denied
Appellant’s request for a continuance as he had been previously given nearly
three months to obtain counsel after he was denied representation by the
public defender.
The trial court proceeded to hold a bench trial and ultimately convicted
Appellant of the aforementioned offenses. On the same day, the trial court
sentenced Appellant to one to two years imprisonment pursuant to the
applicable mandatory minimum sentencing provisions as this was Appellant’s
fourth DUI conviction. The trial court imposed concurrent two year terms of
probation for the convictions of attempting to elude a police officer and
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resisting arrest, but did not impose further penalty for the summary traffic
violation. Appellant filed this appeal and complied with the trial court’s
direction to submit a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
Appellant claims the trial court abused its discretion in denying his
request for a continuance, which thereby denied Appellant his right to
counsel. Our standard of review of a trial court’s decision to deny a request
for a continuance is as follows:
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. Norton, 144 A.3d 139, 143 (Pa.Super. 2016) (citation
omitted).
A defendant has the right to the assistance of counsel in a criminal
prosecution under both the Sixth Amendment to the United States
Constitution and Article I, Section 9 of the Constitution of the
Commonwealth of Pennsylvania. However, this Court has held that:
the right of the accused to choose his own counsel, as well as
the lawyer's right to choose his clients, must be weighed against
and may be reasonably restricted by the state's interest in the
swift and efficient administration of criminal justice. Thus, this
Court has explained that while defendants are entitled to choose
their own counsel, they should not be permitted to unreasonably
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clog the machinery of justice or hamper and delay the state's
efforts to effectively administer justice.
Commonwealth v. Randolph, 582 Pa. 576, 584, 873 A.2d 1277, 1282
(2005) (citations and quotation marks omitted).
In a similar case, Commonwealth v. Wentz, 421 A.2d 796(Pa.Super. 1980) (en banc), the defendant claimed the trial court erred in
failing to grant him a continuance on the day of trial so that he could seek
the assistance of counsel. This Court concluded that the defendant had
waived his right to counsel as he had been notified of his trial date, had been
directed to retain counsel to represent him, but nonetheless appeared
without counsel for his scheduled trial with no reasonable excuse for the lack
of counsel and no concrete plans on obtaining counsel.
Likewise, in this case, we find Appellant waived his right to counsel by
ignoring the trial court’s repeated directions for him to retain counsel. On
Appellant’s most recently scheduled trial date, the case had already been
continued twice upon Appellant’s request. Although Appellant had been
given nearly three additional months to obtain counsel, he failed to make
this arrangement and waited until the date of his scheduled trial to ask for a
third continuance. Appellant indicated that he was “talking to” another
attorney but wanted more time to “gather the funds to pay him.” T.C.O., at
5. Besides this assertion, Appellant offered no information concerning his
efforts to acquire funds for his attorney’s fees and did not indicate when he
would be able to retain an attorney. As in Wentz, we find Appellant “denied
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himself the assistance of counsel when he failed to take steps to retain
counsel despite the admonishments of the trial court.” Wentz, 421 A.2d at
799. As a result, we conclude that the trial court did not err in denying
Appellant’s request for a continuance.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2016
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