Com. v. Leslie, E. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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
v. :
:
ERIC JOHN LESLIE, : No. 709 WDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, December 8, 2014,
in the Court of Common Pleas of Elk County
Criminal Division at No. CP-24-CR-0000278-2014
BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 19, 2016
Eric John Leslie appeals1 pro se from the December 8, 2014 judgment
of sentence of 36 to 72 months’ imprisonment imposed after he pled guilty
to one count of burglary.2 Having found that the trial court failed to ensure
that appellant intelligently, knowingly, and voluntarily waived his right to
counsel prior to proceeding pro se on his post-sentence motion, we remand
this matter so that a hearing can be conducted in accordance with
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
1
Although pro se appellant purports to appeal from the order denying his
post-trial motion to modify his sentence, the appeal properly lies from the
judgment of sentence. See Commonwealth v. Shamberger, 788 A.2d
408, 410 n.2 (Pa.Super. 2001) (en banc), appeal denied, 800 A.2d 932
(Pa. 2002) (stating that in criminal action, an appeal properly lies from the
judgment of sentence made final by denial of post-trial motions).
2
18 Pa.C.S.A. § 3502.
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The relevant facts and procedural history of this case were set forth in
our prior judgment order, as follows:
By criminal complaint filed June 9,
2014, [appellant] was charged with
burglary, 18 Pa.C.S.A. [§] 3502(a)(2), a
felony of the first degree; theft by
unlawful taking or disposition,
18 Pa.C.S.A. [§] 3921(a), a felony of the
second degree; and receiving stolen
property, 18 Pa.C.S.A. [§] [3925(a)], a
felony of the second degree. All of the
charges were filed as a result of an
incident on June 2, 2014, at the
residence of Lori Dowie at [], Fox
Township, Elk County, Pennsylvania.
After his arrest and preliminary
arraignment, [appellant] retained
Attorney Jeffrey S. DuBois. . . .
[Appellant] [] appeared before the [trial
c]ourt on December 8, 2014, at which
time a negotiated disposition was
presented to the [trial c]ourt. As a
result, [appellant] entered a guilty plea
to burglary and was sentenced to a
period of incarceration of not less than
36 months nor more than 72 months at
the State Diagnostic and Classification
Center at Pittsburgh, with a time-served
credit of 76 days. The December 8,
2014 sentencing order was docketed on
December 12, 2014, and thereafter
[appellant] filed a timely [pro se] post-
sentence motion on December 19, 2014,
sounding primarily in claims which
asserted that his attorney was ineffective
and that a presentence investigation
report was mandated.
....
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At the time of the February 23,
2015 hearing, the testimony of Attorney
Jeffrey DuBois and [appellant’s] mother,
Debra Jean Leslie, was presented and
documentary evidence was introduced.
Pre- and post-hearing memorand[a]
were also submitted or filed. On
April 17, 2015, th[e trial c]ourt entered a
discussion and its order by which
[appellant’s] post-sentence motion was
denied. On May 1, 2015, [appellant]
filed the pending timely notice of appeal
and thereafter filed a statement of
concise matters complained of on appeal.
Trial court opinion, 9/3/15 at 1-2 (citations omitted).
During the February 23, 2015 hearing on
appellant’s post-sentence motion, the trial court
granted Attorney DuBois’s oral motion to withdraw
as appellant’s counsel. (See notes of testimony,
2/23/15 at 32.) Appellant represented himself
throughout the duration of the hearing.
Commonwealth v. Leslie, 2016 WL 1545544, at *1 (Pa.Super. April 15,
2016) (unpublished judgment order) (footnote omitted; some brackets
added).
On April 15, 2016, this court remanded this matter to the trial court in
order to determine whether “appellant’s decision to waive his right to
counsel and proceed with his post-sentence motion pro se was a knowing,
intelligent, and voluntary decision pursuant to Grazier.” Leslie, 2016 WL
1545544, at *2. On April 21, 2016, the trial court entered an order directing
that the February 23, 2015 hearing on appellant’s post-sentence motion be
transcribed and made a part of the certified record. Thereafter, on June 1,
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2016, the trial court appointed George N. (Jim) Daghir, Esq.
(“Attorney Daghir”) to represent appellant in this matter.
“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,
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;
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(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 the trial court has met the minimum
requirements of Rule 121, to determine whether the defendant’s waiver of
the constitutional right to counsel was a knowing, voluntary, and intelligent
waiver.” Id. at 854 (citation omitted).
Instantly, it remains unclear whether appellant’s decision to proceed
pro se on his post-sentence motion at the February 23, 2015 hearing was a
knowing, intelligent, and voluntary decision. Our review of the February 23,
2015 hearing transcript reveals that the trial court failed to conduct a proper
colloquy of appellant examining the six factors set forth in Rule 121.
Notably, the Commonwealth concedes in its brief that “[a]ppellant may not
have properly waived the assistance of counsel at the time of [the] hearing
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on post-sentence motion as a waiver to the right [of] counsel must be done
knowingly, intelligently and voluntarily.” (Commonwealth’s brief at 8.)
Accordingly, we once again remand this matter for 30 days to the trial
court to conduct a hearing in accordance with Grazier to determine if
appellant knowingly, intelligently, and voluntarily waived his right to counsel.
Case remanded. Jurisdiction retained.
Judge Mundy did not participate in the consideration or decision of this
case.
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