Com. v. Blank, G.

J-S77037-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GARY G. BLANK, :
:
Appellant : No. 1792 EDA 2014
Appeal from the Judgment of Sentence Entered April 24, 2014
in the Court of Common Pleas of Bucks County,
Criminal Division, at No(s): CP-09-CR-0002351-2007
BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 11, 2015
Gary G. Blank (Appellant) has appealed, pro se, from his judgment of
sentence entered following the revocation of his probation. We remand with
instructions.
The record reveals the following facts. Appellant was represented at
his revocation hearing, at the conclusion of which his privately-retained
counsel, Jason Rubenstein, orally sought to withdraw, citing Appellant’s
inability to afford counsel. The trial court denied the motion, stating: “You
took this representation on, you are going to have to at least protect him
with regard to the time period to file anything [(i.e., a post-sentence motion
and/or appeal)], and that is that. When you do all that, at that point then
the application can be made for you to withdraw.” N.T., 4/24/2014, at 38.
The docket reflects no subsequent filings by counsel.
*Retired Senior Judge assigned to the Superior Court.
J-S77037-14
Appellant, pro se, filed a notice of appeal on May 15, 2014. On May
19, 2014, he filed a document docketed as “Petition to Remove Attorney”
which states, in its entirety, as follows: “I would like to remove Jason
Rubenstien [sic] from my name on above case ID # and please send me an
application for in forma pauperious [sic] to proceed with my appeal in which
an [sic] notice of appeal was mailed in dated May 9, 2014 pro se.” Petition
to Remove Attorney, 5/19/2014. Appellant then filed the application to
proceed IFP and another notice of appeal.
On June 5, 2014, the trial court entered an order providing that
Appellant’s “petition to proceed pro se is hereby approved.” Order,
6/5/2014.1 The trial court subsequently entered orders directing Appellant
to file a statement of errors complained of on appeal and granting
Appellant’s IFP petition.
“It is fundamental that an accused has a constitutional right to counsel
on direct appeal.” Commonwealth v. Kent, 797 A.2d 978, 980 (Pa. Super.
2002). “When the defendant seeks to waive the right to counsel…, the
judge shall ascertain from the defendant, on the record, whether this is a
1
By implication, this order granted Attorney Rubenstein leave to withdraw
his appearance, and he is not listed as counsel of record on the trial court
docket contained in the certified record. However, the docket indicates that
Appellant is represented by William L. Goldman, who was served with notice
of the filing of transcripts in this case on July 17, 2014, although it also
indicates that Attorney Goldman did not file an entry of appearance.
-2-
J-S77037-14
knowing, voluntary, and intelligent waiver of counsel.” Pa.R.Crim.P. 121(C).
See also Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
To ensure that the defendant’s waiver of the right to
counsel is knowing, voluntary, and intelligent, the judge or
issuing authority, at a minimum, shall elicit the following
information from the defendant:
(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.
Pa.R.Crim.P. 121(A)(2).
-3-
J-S77037-14
The record before us lacks clear indication that Appellant wished to
proceed pro se, let alone that he intelligently, voluntarily, and knowingly
waived his right to counsel. Accordingly, we remand for the trial court to
comply with its duties under Rule 121.
Within 60 days of this order, the trial court shall conduct a hearing to
determine (1) whether Appellant wishes to proceed pro se; (2) if Appellant
does wish to proceed pro se, to hold a colloquy to determine whether he
knowingly and intelligently waives his right to counsel; (3) if Appellant does
not wish to proceed pro se, given his IFP status, to appoint counsel to
represent him.
If the trial court determines that Appellant knowingly and intelligently
waives his right to counsel, it shall certify its decision to this Court, and we
shall proceed with the previously-submitted briefs.
If, on the other hand, the trial court determines that counsel will be
appointed, the trial court shall establish a new deadline for counsel to file a
statement of matters complained of on appeal, after which the trial court
shall file a new opinion and, following certification of the decision by the trial
court, the Superior Court Prothonotary shall establish a new briefing
schedule.
Case remanded with instructions. Panel jurisdiction retained.
-4-
J-S77037-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2015
-5-