Com. v. Zvolensky, R.

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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37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. :
:
RONNIE ZVOLENSKY, :
:
Appellant : No. 18 MDA 2013
Appeal from the Judgment of Sentence October 31, 2012,
Court of Common Pleas, Lackawanna County,
Criminal Division at No. CP-35-MD-0000524-2012
BEFORE: PANELLA, DONOHUE and MUNDY, JJ.
MEMORANDUM BY DONOHUE, J.: FILED AUGUST 22, 2014
of sentence
entered following his conviction of indirect criminal contempt of a protection
support thereof pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct.
1396 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
In the course of our review, we agreed with Counsel that the issues he
identified were without merit, but we identified an issue of potential merit
case for the filing of an amended Rule 1925(b) statement raising that issue
and ordered the trial court to author an opinion addressing it.
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Counsel and the trial court have complied with our directives. In
addressing this issue, the trial court candidly acknowledged its failure to
conduct an adequate colloquy of Zvolensky and concluded that Zvol
wavier of counsel was invalid. Trial Court Opinion, 7/9/14, at 4-5. We
agree.
knowing, voluntary and intelligent.
[Commonwealth v.] Starr, [] 664 A.2d [1326,] []
1335. The court must also inquire whether:
(1) the defendant understands that he
has the right to be represented by counsel,
and the right to have free counsel if he is
indigent; (2) the defendant understands the
nature of the charges against him and the
elements of each of those charges; (3) the
defendant is aware of the permissible range
of sentences and/or fines for the offenses
charged; (4) the defendant understands that
if he waives the right to counsel he will still be
bound by all the normal rules of procedure
and that counsel would be familiar with these
rules; (5) defendant understands that there
are possible defenses to these charges which
counsel might be aware of, and if these
defenses are not raised at trial, they may be
lost permanently; and (6) 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,
the objection to these errors may be lost
permanently.
[Id.
fully advise the accused of the nature and elements
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Commonwealth ex rel. Clinger v. Russell, [] 213
A.2d 100, 102 ([Pa. Super.] 1965).
Commonwealth v. Clyburn, 42 A.3d 296, 299 (Pa. Super. 2012).
As we recounted in our initial memorandum in this appeal, the trial
:
MS TIGUE: This is the matter of the
Commonwealth versus Ron Zvolensky docketed at
12 MD 524. His is present. He is currently
had an opportunity to
THE COURT: Well, I did the arraignment on
THE DEFENDANT: Yes, sir.
THE COURT: Now, did you apply for a public
defender?
pro se litigant.
pro
se on it. I filed a PCRA on the last violation and I
went pro se. I filed for a -- I have a complaint in for
ineffective counsel and I proceeded pro se in all of
my dealings with these issues with my divorce, with
going to be held to the standards of a lawyer
apparently, but I definitely have been working on
this for 15 months and
THE COURT: On this contempt for 15 months?
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been trying to get back into the courts for the last
guilty verdict of the last contempt. I have a PCRA --
N.T., 10/31/12, at 2-3. Moreover, Zvolensky did not execute a written
colloquy.
There was no inquiry, much less one that could be considered
m, a
Clyburn, 42 A.3d at
300. Accordingly, we vacate the judgment of sentence and remand this
matter for a new trial. See Commonwealth v. Phillips, 2014 WL 2535259at *6 (Pa. Super. June 4, 2014) (holding that where there is a deficient
pro se, proper remedy
is to vacate judgment of sentence and remand for new trial).1
1
After determining that Zvolensky was not properly colloquied, the trial
ntempt. Trial
Court Order, 7/9/14. At the time the trial court entered this order, however,
this case was still pending before this Court on appeal. It is well established
procee
amending its records, correcting mistakes of the clerk or other officer of the
court, or supplying defects or omissions in the record, these exceptions are
appeal; rather it was addressed to the only meritorious issue on appeal.
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Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2014
contempt conviction or his judgment of sentence. See Bell v. Kater, 839
A.2d 356, 357-58 (Pa. Super. 2003) (holding that an order substantively
affecting an issue raised in a pending appeal is a nullity).
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