Com. Jacobs, B. ( 2023 )

J-S31045-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRYHEEM KAMEEL JACOBS :
:
Appellant : No. 1123 EDA 2023
Appeal from the Judgment of Sentence Entered April 3, 2023
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0003069-2022
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 27, 2023
Bryheem Kameel Jacobs appeals from the judgment of sentence entered
following his guilty plea to driving under the influence (“DUI”)– controlled
substance, 75 Pa.C.S.A. § 3802(d)(2). He maintains the court erred in
allowing him to proceed pro se at the guilty plea hearing. We conclude Jacobs
did not knowingly, voluntarily, and intelligently waive his right to counsel. We
therefore vacate the judgment of sentence and remand for further
proceedings.
On March 2, 2023, Jacobs appeared before the trial court and his counsel
requested a continuance because Jacobs was applying for restrictive probation
and had an upcoming appointment for a drug and alcohol evaluation.1 The
Commonwealth did not object to the continuance, which the court granted.
____________________________________________
1 The transcript states Michael Kotik, Esq. represented Jacobs, and Kotik spoke
at the hearing on Jacobs’ behalf.
J-S31045-23
On April 3, 2023, Jacobs appeared for a guilty plea and sentencing. His
counsel was not present. At the plea hearing, the court did not conduct a
colloquy to determine whether Jacobs knowingly, voluntarily, and intelligently
waived his right to counsel. Jacobs entered a negotiated guilty plea to DUI
and the Commonwealth nolle prossed a driving while operating privilege
suspended or revoked charge. The court sentenced Jacobs to six months’
restrictive probation, with the first 72 hours to be served on home
confinement. The sentence was concurrent to a sentence Jacobs was serving
at another docket.
After the plea and sentencing, new counsel entered her appearance for
Jacobs and filed a timely notice of appeal. Jacobs raises the following issue:
Did the trial court err in allowing [Jacobs] to proceed pro se
where [Jacobs] was never advised of his absolute right to
counsel and where [Jacobs] did not knowingly, voluntarily
and intelligently waived his right to counsel?
Jacobs’ Br. at 6.
“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.
Forrester-Westad, 282 A.3d 811, 816 (Pa.Super. 2022) (quoting
Commonwealth v. Johnson, 158 A.3d 117, 121 (Pa.Super. 2017)).
“A [trial court’s] thorough inquiry into the accused’s appreciation of both
the right to counsel and the right to represent oneself must be used in . . .
every critical stage of a criminal proceeding,” including a guilty plea hearing.
-2-
J-S31045-23
Id. at 816-17 (quoting Johnson, 158 A.3d at 122) (emphasis and internal
quotation marks omitted). “[W]hen a defendant seeks to waive the right to
counsel, the trial court is required to conduct, on the record, a full and
complete waiver colloquy to determine whether the defendant’s waiver is
knowing, voluntary, and intelligent.” Id. at 817 (quoting Commonwealth v.
Brazil, 701 A.2d 216, 219 (Pa. 1997)). Pennsylvania Rule of Criminal
Procedure 121 sets forth the minimum requirements for a valid waiver-of-
counsel colloquy and requires the court elicit the following information from
the defendant to ensure the waiver is knowing, voluntary, and intelligent:
(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;
(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.
-3-
J-S31045-23
Pa.R.Crim.P. 121(A)(2)(a)-(f). “A trial court’s failure to conduct a valid
colloquy before allowing a defendant to proceed pro se constitutes reversible
error.” Forrester-Westad, 282 A.3d at 817 (quoting Commonwealth v.
Floyd, 257 A.3d 13, 18 (Pa.Super. 2020)) (brackets omitted).
Here, Jacobs appeared at his guilty plea hearing without counsel and
the court failed to conduct any colloquy to determine whether he voluntarily,
knowingly, and intelligently waived his right to counsel. The court did not even
acknowledge counsel’s absence. The Commonwealth concedes that no waiver
of counsel colloquy was conducted, that Jacobs’ right to counsel was violated,
and the conviction must be vacated and the case remanded for further
proceedings. See Commonwealth’s Br. at 4. Because Jacobs did not waive his
right to counsel, conducting the guilty plea without counsel was reversible
error.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Date: 12/27/2023
-4-