Com. v. Flowers, J., Jr. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JAMES LESLIE FLOWERS, JR., : No. 97 MDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, October 12, 2016,
in the Court of Common Pleas of Schuylkill County
Criminal Division at No. CP-54-CR-0001181-2015
BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 11, 2017
James Leslie Flowers appeals pro se from the October 12, 2016
judgment of sentence entered in the Court of Common Pleas of Schuylkill
County1 following his conviction in a jury trial of delivery of a controlled
substance, possession with intent to deliver a controlled substance, and
1 Appellant filed his appeal from the December 7, 2016 order denying his
post-sentence motion. In the criminal context, an appeal properly lies from
the judgment of sentence, not an order denying post-sentence motions.
Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.1 (Pa.Super. 2003)
(en banc). The caption, therefore, has been amended to reflect that this
appeal is from the October 12, 2016 judgment of sentence.
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possession of a controlled substance.2 The trial court imposed a sentence of
27 to 54 months of imprisonment.3 We remand for further proceedings.
In a prior memorandum, we set forth the following procedural history:
The record reflects that on June 15, 2015,
Attorney Andrea Thompson of the Office of the Public
Defender entered her appearance on appellant’s
behalf and represented appellant through trial.
Following trial, but before sentencing, and while still
being represented by Attorney Thompson, appellant
commenced pro se filings with the trial court, which
included a “notice of appeal,” a “motion for stay of
sentencing pending appeal,” and a Post-Conviction
Relief Act[Footnote 4] petition alleging, among other
things, ineffective assistance of Attorney Thompson.
(Pro se notice of appeal, 9/13/16; pro se motion for
stay of sentencing pending appeal, 9/13/16; pro se
PCRA petition, 9/13/16; Docket ##30, 32 & 33,
respectively). On September 16, 2016, Attorney
Thompson filed a motion to withdraw as counsel,
alleging her inability to represent appellant because
of the “outrageous and spurious allegations”
appellant made against her. (Motion to withdraw as
counsel, 9/16/16.) On September 26, 2016, the trial
court entered an order granting
Attorney Thompson’s motion to withdraw as counsel
and appointing Claude A.L. Shields, Esq., to
represent appellant. (Order of court, 9/26/16.)
Despite being represented by Attorney Shields,
appellant filed a pro se motion challenging the trial
court’s jurisdiction over appellant. (Pro se motion
to challenge jurisdiction, 10/11/16; Docket #40.)
[Footnote 4] 42 Pa.C.S.A. §§ 9541-9546.
The trial court held a sentencing hearing on
October 12, 2016, at which Attorney Shields
2 Counts I and II in violation of 35 P.S. § 780-113(a)(30) and Count III in
violation of 35 P.S. § 780-113(a)(16).
3 For sentencing purposes, Counts II and III merged with Count I.
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represented appellant. Because appellant disrupted
those proceedings, the trial court held appellant in
direct criminal contempt of court, sentenced him to
30 days in prison, and had him removed from the
sentencing hearing and taken into custody. (Notes
of testimony, 10/12/16 at 3.) The sentencing
hearing then proceeded without appellant. Prior to
imposition of sentence, Attorney Shields informed
the trial court that appellant had indicated to counsel
that appellant did not want counsel’s representation.
(Id. at 6-7.) Attorney Shields further informed the
trial court that communication between counsel and
appellant is “totally broke [sic] down.” (Id. at 7.)
Attorney Shields stated that although he would be
representing appellant at the sentencing hearing, he
would be filing a motion to withdraw. (Id.)
Thereafter, the trial court imposed sentence. (Id.
at 11; see also order of court, 10/12/16; Docket
#41.)
On October 13, 2016, Attorney Shields filed a
post-sentence motion on appellant’s behalf and
simultaneously filed a motion to withdraw as
counsel. In that motion to withdraw,
Attorney Shields alleged that because counsel
informed appellant that appellant had no basis to
challenge the trial court’s jurisdiction over him,
appellant refused to communicate with counsel.
(Motion to withdraw as counsel, 10/13/16; Docket
#44.) On November 10, 2016, the trial court
granted Attorney Shields’s motion to withdraw as
counsel and further “ordered that [appellant] may
represent himself pro se and that [Attorney] Shields
is appointed to serve as standby counsel.” (Order of
court, 11/10/16; Docket #53.) On December 7,
2016, the trial court denied appellant’s post-
sentence motion.
The record further reveals that appellant filed a
“motion for extraordinary relief to the [trial] court,”
which was docketed on November 29, 2016, and
states:
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And now, [appellant]/pro se,
James Leslie Flowers, hereby motions the
court as follows:
1. The order of court on the 10th
day of November, granted
the motion of defense
counsel to withdraw his
appearance in the matter,
and his appearance is
withdrawn.
2. It is further ordered that
[appellant] may represent
himself pro se, and that
Claude A. Lord Shields,
Esquire is appointed to serve
as standby counsel.
WHEREFORE, [appellant]/pro se, James
Leslie Flowers request that this
Honorable Court to grant, extraordinary
relief, so that pro se [appellant] may
seek proper legal advice from attorney’s
at law, who specialize in the nature of
these charges brought forth, and further
be appointed appeal bail to reinstate the
bail that [appellant]/pro se,
James Flowers is therefore capable, and
knowledgeable to properly litigate these
proceedings.
Pro se motion for extraordinary relief to the court,
11/29/16; Docket #56 (numerous grammatical
errors occur in original).
On December 2, 2016, the trial court entered
an order denying appellant’s motion for
extraordinary relief. (Order of court, 12/2/16;
Docket #58.) Appellant then filed a pro se notice of
appeal to this court.[Footnote 5] (Pro se notice of
appeal, docketed 1/13/17; Docket #65.) The trial
court then ordered appellant to file a concise
statement of errors complained of on appeal
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pursuant to Pa.R.A.P. 1925(b), and appellant timely
complied pro se. The trial court then filed its
Rule 1925(a) opinion.
[Footnote 5] The notice of appeal is
dated January 6, 2017, but
time-stamped as being docketed on
January 13, 2017. In an abundance of
caution, based upon the prisoner mailbox
rule, we deem the notice of appeal timely
filed. See Commonwealth v.
Chambers, 35 A.3d 34, 38 (Pa.Super.
2011) (holding “a pro se prisoner’s
document is deemed filed on the date he
delivers it to prison authorities for
mailing”) (citation omitted)).
Appellant has now filed a pro se brief with this court
raising six issues. Based on the record before us,
however, we cannot consider the issues that
appellant requests that we review because we find
that the trial court violated appellant’s right to
counsel on direct appeal. See Commonwealth v.
Wrecks, 931 A.2d 717, 722 (Pa.Super. 2007)
(reiterating that a criminal appellant has a
constitutional right to counsel on direct appeal).
Here, nothing in the record supports the conclusion
that appellant requested Attorney Shields to
withdraw, waived his right to counsel on appeal, or
desired to proceed pro se on appeal. We are,
therefore, constrained to remand for a
Grazier[Footnote 6] hearing. If appellant wishes to
represent himself, we will proceed to the merits on
appeal considering his pro se brief.
[Footnote 6] Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998).
Commonwealth v. Flowers, 2017 Lexis 3136, at *1-7 (Pa.Super.
August 18, 2017) (unpublished memorandum).
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On August 18, 2017, we remanded this matter to the trial court for a
Grazier hearing to determine whether appellant’s decision to proceed
pro se on direct appeal was a knowing, intelligent, and voluntary one. On
September 14, 2017, the trial court filed an order with this court, dated
September 12, 2017, that attached a certified transcript of its November 10,
2016 hearing with counsel and appellant with respect to Attorney Shields’
motion to withdraw as appellant’s counsel and certified its conclusion that
appellant “was acting knowingly, intelligently, voluntarily and
understandingly, and that the Grazier requirements had been fulfilled.”
(Order of court, 9/12/17.)
“Both the right to counsel and the right to self-representation are
guaranteed by the Sixth Amendment to the United States Constitution and
by Article I, Section Nine of the Pennsylvania Constitution.”
Commonwealth v. Phillips, 93 A.3d 847, 851 (Pa.Super. 2014) (citation
omitted). “Where a defendant knowingly, voluntarily, and intelligently seeks
to waive his right to counsel, the trial court . . . must allow the individual to
proceed pro se.” Commonwealth v. El, 977 A.2d 1158, 1162-1163 (Pa.
2009) (citation omitted). Pursuant to Pennsylvania Rule of Criminal
Procedure 121, the trial court is required to examine the following six areas
on the record to determine whether a defendant is making a knowing,
voluntary, and intelligent waiver:
(a) that the defendant understands that he or she
has the right to be represented by counsel,
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and the right to have free counsel appointed if
the defendant is indigent;
(b) that the defendant understands the nature of
the charges against the defendant and the
elements of each of those charges;
(c) that the defendant is aware of the permissible
range of sentences and/or fines for the
offenses charged;
(d) that the defendant understands that if he or
she waives the right to counsel, the defendant
will still be bound by all the normal rules of
procedure and that counsel would be familiar
with these rules;
(e) that the defendant understands that there are
possible defenses to these charges that
counsel might be aware of, and if these
defenses are not raised at trial, they may be
lost permanently; and
(f) that the defendant understands that, in
addition to defenses, the defendant has many
rights that, if not timely asserted, may be lost
permanently; and that if errors occur and are
not timely objected to, or otherwise timely
raised by the defendant, these errors may be
lost permanently.
Pa.R.Crim.P. 121(A)(2).
The trial court must further inquire “about the defendant’s age,
educational background, and basic comprehension skills.” Phillips, 93 A.3d
at 853 (citation omitted). We will review “the totality of the relevant
circumstances only after we decide that the trial court has met the minimum
requirements of Rule 121, to determine whether the defendant’s waiver of
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the constitutional right to counsel was a knowing, voluntary, and intelligent
waiver.” Id. at 854 (citation omitted).
Here, we are unable to determine whether appellant’s decision to
proceed pro se on direct appeal constituted a knowing, intelligent, and
voluntary decision based on the following colloquy that took place at the
November 10, 2016 hearing on Attorney Shields’ motion to withdraw as
counsel:
THE COURT: . . . [Appellant], what’s your position
on this? Do you want Mr. Shields to remain in the
case? Do you want him out of the case? Do you
want to represent yourself?
[APPELLANT]: I want to represent myself.
THE COURT: All right. Did anybody threaten you or
force you to do that? You’re doing that of your own
free will?
[APPELLANT]: Yes.
THE COURT: Then good. I have no problem with
that. . . .
Notes of testimony, 11/10/16 at 2-3.
Clearly, the trial court failed to conduct a proper colloquy of appellant
that examined the relevant factors set forth in Rule 121 involving appellant
representing himself on appeal. Consequently, we are constrained to once
again remand this matter to the trial court and direct the trial court to
conduct a hearing in accordance with Grazier to determine if appellant
knowingly, intelligently, and voluntarily waived his right to counsel on appeal
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within 30 days of the date that this memorandum is filed. We additionally
remind appellant that although he is entitled to the appointment of counsel
on appeal, he is not entitled to the counsel of his choice. See
Commonwealth v. Rucker, 761 A.2d 541, 542 n.1 (Pa. 2001) (reiterating
that a defendant who seeks court-appointed counsel at public expense has
no right to choose the particular counsel to represent him).
Case remanded. Jurisdiction retained.
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