Com. v. Blackwell, M. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
MICHAEL BLACKWELL
Appellant No. 283 EDA 2016
Appeal from the Judgment of Sentence December 22, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0036731-2014
BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.
JUDGMENT ORDER BY MOULTON, J.: FILED MARCH 24, 2017
Michael Blackwell appeals, pro se, from the December 22, 2015
judgment of sentence entered in the Philadelphia County Court of Common
Pleas following his conviction for indirect criminal contempt for violating a
Protection from Abuse (“PFA”) order.1 Because the certified record shows
that trial counsel has not withdrawn from representation and Blackwell has
submitted pro se filings, we remand for further proceedings.
On December 22, 2015, following a bench trial, the trial court found
Blackwell guilty of the above charge and sentenced him to 6 months’
probation. On January 19, 2016, Blackwell filed a timely pro se notice of
appeal. On April 11, 2016, Blackwell filed a pro se Pennsylvania Rule of
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1
23 Pa.C.S. § 6114.
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Appellate Procedure 1925(b) statement, and the trial court filed a Rule
1925(a) opinion on June 9, 2016.2
Blackwell raises nine issues on appeal. However, because we must
remand this matter for a Grazier3 hearing to determine whether Blackwell
wishes to proceed pro se or with the assistance of counsel, we cannot
address these issues now. The record shows that Blackwell has serially filed
pro se motions, notices of appeal, and documents with both the trial court
and this Court. Further, the certified record does not show that Attorney
Smoker, whose appearance on Blackwell’s behalf was entered by
appointment on October 27, 2015, has been permitted to withdraw from
representation.4 Attorney Smoker thus remains Blackwell’s counsel of
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2
When Blackwell initially filed his pro se notice of appeal, he listed two
criminal docket numbers. Each docket contained a charge of indirect
criminal contempt for violating the subject PFA order for incidents that
occurred in 2014 and 2015. On February 9, 2016—the same day the trial
court issued an order upon Blackwell’s counsel, Phillip Smoker, Esquire, to
file a Rule 1925(b) statement—Blackwell file a pro se praecipe to discontinue
his appeal, which this Court granted. A docket entry in his 2014 case, also
on February 9, 2016, states “Attorney Relieved” with an “Unknown Filer.”
Blackwell later sought clarification of this Court’s order, stating that he only
meant to discontinue his appeal in the 2015 case, as the trial court had
dismissed that case for a lack of evidence. This Court then reinstated
Blackwell’s appeal on March 10, 2016. On March 23, 2016, the trial court
issued another Rule 1925(b) order, this time ordering Blackwell himself to
file a Rule 1925(b) statement. The record contains neither an order
relieving Attorney Smoker nor a petition to withdraw as counsel.
3
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
4
The discontinuance and reinstatement of Blackwell’s appeal, as
discussed in note 2, supra, does not discharge Attorney Smoker as counsel
(Footnote Continued Next Page)
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record in this appeal. See Pa.R.Crim.P. 120(A)(4) (“An attorney who has
been retained or appointed by the court shall continue such representation
through direct appeal or until granted leave to withdraw by the court”).
Despite Attorney Smoker’s status as counsel of record, the trial court
responded to Blackwell’s pro se Rule 1925(b) statement. We conclude that
the trial court erred in issuing a Rule 1925(a) opinion based on the pro se
Rule 1925(b) statement, as it allowed hybrid representation, which is
generally prohibited. See Commonwealth v. Jette, 23 A.3d 1032, 1038-
40 (reiterating “that there is no constitutional right to hybrid representation
either at trial or on appeal” and reaffirming that our Supreme Court’s “long-
standing” ban on hybrid representation is intended to prevent confusion and
overburdening of appellate courts).
Accordingly, we remand this case for the trial court to conduct a
Grazier hearing within 30 days of the date of this order to determine
whether Blackwell wishes to waive his right to counsel, and, if so, whether
such waiver is knowing, intelligent, and voluntary. If Blackwell chooses to
proceed pro se, and the trial court finds he knowingly, intelligently, and
voluntarily waived his right to counsel, the trial court shall inform this Court
of the waiver and we will render a decision based upon the current filings.
_______________________
(Footnote Continued)
of record. This Court reinstated Blackwell’s appeal and the trial court, upon
learning of this correction of a clerical error, should have instructed Attorney
Smoker to file a Rule 1925(b) statement on Blackwell’s behalf.
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However, should Blackwell choose to be represented by counsel on appeal, 5
be it Attorney Smoker or substituted counsel, then the trial court shall issue
an order directing counsel to file a Rule 1925 statement and the trial court
shall issue a new Rule 1925(a) opinion within 30 days of receipt of counsel’s
Rule 1925 statement.
Case remanded with instructions. Panel jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2017
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5
Should Blackwell choose to proceed with counsel, this Court will not
entertain his pro se filings. See Pa.R.A.P. 3304; Jette, 23 A.3d at 1038-40.
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