Com. v. Floyd, C.

J-S54035-19
2020 PA Super 287COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES FLOYD :
:
Appellant : No. 84 MDA 2019
Appeal from the Judgment of Sentence Entered December 21, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001694-2012,
CP-22-CR-0002833-2018
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
OPINION BY DUBOW, J.: FILED DECEMBER 16, 2020
Appellant, Charles Floyd, has appealed from two Judgments of Sentence
entered in the Dauphin County Court of Common Pleas, one entered after
Appellant entered a negotiated guilty plea to Possession with Intent to Deliver
(“PWID”), Criminal Use of a Communication Facility, and Possession of Drug
Paraphernalia,1 and the other entered following the consequent revocation of
Appellant’s sentence of intermediate punishment (“IP”) imposed for a prior
conviction.2 On January 4, 2019, Appellant timely filed one Notice of Appeal
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1 35 P.S. § 780-113(a)(30), 18 Pa.C.S. § 7512(a), and 35 P.S. § 780-
113(a)(32), respectively.
2 On February 19, 2013, Appellant pleaded guilty to felony drug charges at
Docket Number 1694-2012 and received a three-year sentence of county IP.
Subsequently, following Appellant’s 2014 conviction in an unrelated matter,
the court revoked Appellant’s IP sentence and imposed a new two-year IP
sentence.
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listing both lower court docket numbers. We conclude that because the trial
court did not inform Appellant of his appellate rights as required by our rules
of criminal procedure, a breakdown in the operation of the court as discussed
in Commonwealth v. Larkin, A.3d , 2020 PA Super 163, at *3 (Pa.
Super. filed July 9, 2020) (en banc) occurred. Thus, we decline to quash this
appeal based on Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018).
Additionally, with this appeal, Appellant’s counsel, James J. Karl,
Esquire, seeks to withdraw from representing Appellant pursuant to Anders.3
Following our review of the record, we conclude that the trial court committed
reversible error by failing to provide appropriate waiver-of-counsel colloquies
before allowing Appellant to proceed pro se at each critical stage of the
proceeding. Accordingly, we vacate Appellant’s guilty plea, vacate Appellant’s
Judgments of Sentence, deny counsel’s Application for Leave to Withdraw as
Counsel, and remand for further proceedings.4
The relevant facts and procedural history, as gleaned from the certified
record, are as follows. On April 9, 2018, the Commonwealth charged
Appellant with the above offenses at Docket Number 2833-2018.5 Initially,
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3 Anders v. California, 386 U.S. 738 (1967).
4 On September 4, 2020, Appellant filed a pro se “Motion to Dismiss Attorney
James Karl.” In light of our disposition, we deny Appellant’s Motion without
prejudice to seek relief in the trial court.
5 The filing of these charges engendered the commencement of revocation
proceedings at Docket Number 1694-2012.
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Gregory Mills, Esquire, an assistant public defender, represented Appellant.
However, after the preliminary hearing, Appellant began filing pro se motions,
including a Motion to Suppress and a Petition for Writ of Habeas Corpus.
Appellant also requested that the court permit him to “terminate” Attorney
Mills’s representation of him.
On August 28, 2018, the trial court held a status conference to ascertain
whether Appellant wished to waive his right to counsel. After the court
conducted an abbreviated colloquy, Appellant stated that he would represent
himself.6 The court thereafter permitted Attorney Mills to withdraw as
counsel, and permitted Appellant to proceed pro se with Attorney Mills as
standby counsel.
On September 5, 2018, the trial court held a hearing on Appellant’s
Suppression Motion and Habeas Corpus Petition at which Appellant
represented himself pro se, with Attorney Mills serving as standby counsel.
The court did not conduct a waiver-of-counsel colloquy at the hearing.
Following the hearing, the court denied Appellant’s Motion and his Petition.
On December 12, 2018, Appellant appeared pro se, with Attorney Mills
as standby counsel, and entered guilty pleas to the above charges pursuant
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6 The court asked Appellant if he intended to represent himself, informed
Appellant that a PWID conviction carried with it a sentence of 15 to 20 years’
incarceration, and explained to Appellant that self-representation conferred
upon him the responsibility to make all decisions in the case. N.T., 8/28/18,
at 5-8.
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to the terms of a negotiated agreement. The trial court did not conduct a
waiver of counsel colloquy prior to accepting the guilty plea.
On December 21, 2018, Appellant appeared for sentencing. Although
the court again neglected to conduct a waiver of counsel colloquy, Appellant
represented himself with Hillary Hall, Esquire, an assistant public defender,
serving as standby counsel. The trial court sentenced Appellant, at Docket
Number 2833-2018, to a negotiated sentence of two concurrent terms of 6 to
23 months’ incarceration and costs and fines. At the same hearing, the court
revoked Appellant’s IP sentence at Docket Number 1694-2012, and imposed
an 8- to 23-month’ sentence of incarceration, concurrent to the 6- to 23-
month sentence imposed at Docket Number 2833-2018.
Relevant to the issues in this appeal, after imposing Appellant’s
sentence, the court failed to inform Appellant of his appellate rights and failed
to ascertain from stand-by counsel if Appellant was aware of his appellate
rights. On January 4, 2019, Appellant timely filed one Notice of Appeal listing
both lower court docket numbers.
On February 13, 2019, Appellant pro se filed a court-ordered Pa.R.A.P.
1925(b) Statement. On February 29, 2019, the trial court appointed Attorney
Karl to represent Appellant and directed counsel to file a Rule 1925(b)
Statement. On March 20, 2019, Attorney Karl filed a Statement of Intent to
File Anders/McClendon Brief in Lieu of Statement of Errors Complained of
on Appeal pursuant to Pa.R.A.P. 1925(c)(4). The trial court did not file a
responsive Pa.R.A.P. 1925(a) Opinion.
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On March 26, 2019, this Court issued a Rule to Show Cause why we
should not quash Appellant’s appeal in light of Walker, 185 A.3d at 977
(stating that “when a single order resolves issues arising on more than one
lower court docket, separate notices of appeal must be filed. The failure to
do so will result in quashal of the appeal.” (citing Pa.R.A.P. 341)). Appellant
filed a Response noting, inter alia, the trial court’s failure to advise Appellant
of his appellate rights. On April 29, 2019, this Court issued an Order
discharging the Rule to Show Cause and deferring the issue to the merits
panel.
Walker Issue
As noted above, Appellant has appealed from two Judgments of
Sentence but filed only one Notice of Appeal. At first blush, this appears to
be a clear violation of Walker’s prohibition of this practice, requiring quashal
of this appeal.
However, as noted above, we conclude that quashal is unnecessary in
light of this Court’s recent decision in Larkin, 2020 PA Super 163 at *3. In
Larkin, the PCRA court entered an order dismissing the defendant’s PCRA
petition, in which the defendant had sought PCRA relief relating to more than
one docket. Id. at *2. The PCRA court’s dismissal order informed the
defendant that he had thirty days from the date of the order “to file an
appeal.” Id. at *3 (emphasis in original). The defendant timely filed a notice
of appeal listing both of his criminal docket numbers. We declined to quash
the appeal on the ground that the order’s reference to “an appeal” misled the
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defendant into filing a single notice of appeal, thus constituting a breakdown
in the court’s operation. Id. (citing Commonwealth v. Stansbury, 219 A.3d
157, 159-60 (Pa. Super. 2019) (noting that “we have many times declined to
quash a[ defective] appeal when the defect resulted from an appellant’s acting
in accordance with misinformation relayed to him by the trial court” and
holding that this Court can overlook such defects because the purveyance of
misinformation by the court constitutes a breakdown in the court’s
operations)).
Here, Appellant’s failure to file separate Notices of Appeal resulted not
from the purveyance of misinformation but rather from the trial court’s total
neglect in informing Appellant in the first instance of his appellate rights. The
Pennsylvania Rules of Criminal Procedure require the trial court, at the time
of sentencing, to “determine on the record that the defendant has been
advised of . . . the right to . . . appeal[.]” Pa.R.Crim.P. 704(C)(3)(a). See
also Pa.R.Crim.P 708(D)(3)(a) (When the court has determined that the
defendant has violated his probation or parole, “[t]he judge shall advise the
defendant on the record . . . of the right to . . . appeal[.]”).
Instantly, the trial court did not advise Appellant of his appellate rights
after imposing sentence or determine on the record that Appellant had been
advised of his appellate rights. Subsequently, Appellant filed one Notice of
Appeal listing both trial court docket numbers. We conclude that the trial
court’s failure to inform Appellant of his appellate rights as required by the
Rules of Criminal Procedure constitutes a breakdown in the operation of the
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court. Accordingly, pursuant to the holding in Larkin, we decline to quash
Appellant’s appeal.
Appellate Issues
On August 1, 2019, Attorney Karl filed Application for Leave to Withdraw
as Counsel and an Anders Brief raising numerous issues, which counsel
asserted lack merit.7 However, counsel also raised, analyzed, and provided
advocacy in support of, two meritorious issues pertaining to the adequacy of
the trial court’s waiver-of-counsel colloquy at Appellant’s August 28, 2018
hearing and the court’s failure to conduct a waiver-of-counsel colloquy at all
subsequent proceedings including Appellant’s revocation hearing. See
Anders Brief at 18-22, 26-29. Neither Appellant nor the Commonwealth filed
a Response addressing any of the issues raised in counsel’s Anders Brief.
Because counsel has provided advocacy in support of two issues of
arguable merit, we address those issues first.
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7 The Anders Brief contained issues pertaining to: (1) the denial of Appellant’s
Habeas Corpus Petition; (2) the denial of Appellant’s suppression Motion, (3)
the validity of Appellant’s guilty plea; (4) the validity of a March 20, 2015
revocation hearing arising from Appellant’s guilty plea at Docket Number
1859-2014; (5) the one-month delay in the court filing Appellant’s revocation
detainer; (6) the validity of the December 21, 2018 revocation proceeding;
and (7) whether Appellant was serving a sentence when he committed a new
criminal offense on April 9, 2018.
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Waiver of Counsel Colloquy
Appellant asserts that his August 28, 2018 waiver-of-counsel colloquy
was inadequate and that the court failed to colloquy him at all subsequent
proceedings, including any of the proceedings revoking his IP.8 Id.When a defendant seeks to waive the right to counsel, the trial court
must conduct on the record a full and complete waiver colloquy to determine
whether the defendant’s waiver is knowing, voluntary, and intelligent.
Commonwealth v. Brazil, 701 A.2d 216, 219 (Pa. 1997). See
Commonwealth v. Johnson, 158 A.3d 117, 122 (Pa. Super. 2017) (stating
that the court must conduct a “thorough inquiry into the accused’s
appreciation of both [the right to counsel and the right to represent oneself] .
. . at trial, guilty plea hearings, sentencing, and every ‘critical stage’
of a criminal proceeding.” (citation omitted)).
Pennsylvania Rule of Criminal Procedure 121 outlines the requirements
for a valid waiver-of-counsel colloquy. It states, in pertinent part:
[T]he judge or issuing authority, at a minimum, shall elicit the
following information from the defendant:
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8 Appellant proceeded pro se at: (1) the joint hearing on his habeas corpus
and suppression motions at Docket Number 2833-2018; (2) the guilty plea at
Docket Number 2833-2018; (3) the sentencing hearing at Docket Number
2833-2018; (4) the revocation hearing at Docket Number 1694-2012; and (5)
the sentencing hearing at Docket Number 1694-2012. The court held
Appellant’s revocation and sentencing hearings at the same time.
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(a) that the defendant understands that he . . . 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 . . . 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). A court’s failure to conduct a valid colloquy before
allowing a defendant to proceed pro se constitutes reversible error.
Commonwealth v. Murphy, 214 A.3d 675, 678 (Pa. Super. 2019). See
also Commonwealth v. Payson, 723 A.2d 695, 699–700 (Pa. Super. 1999)
(deprivation of the right to counsel, or the right to waive counsel, can never
be harmless). Additionally, where the court fails to conduct a waiver of
counsel colloquy, a defendant’s alleged waiver of counsel is ineffective, even
if the court has appointed standby counsel. Brazil, 701 A.2d at 219.
Our review of the Notes of Testimony from Appellant’s August 28, 2018,
status conference indicates that although the trial court conducted a
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perfunctory waiver-of-counsel colloquy, the colloquy was deficient in that the
court did not advise Appellant of the elements of the charged offenses and the
range of sentences or and/or fines for each. See N.T., 8/28/18, at 5-8. In
addition, our review reveals that the trial court did not perform any waiver-
of-counsel colloquies at the subsequent hearings on Appellant’s suppression
and habeas corpus motions, guilty plea, revocation of his probation, or at
sentencing.
Based on this record and the above case law, we conclude that the trial
court committed reversible error on August 28, 2018, and at each subsequent
proceeding, by allowing Appellant to proceed under his own representation
without first conducting thorough on-the-record colloquies to determine
whether Appellant understood the consequence of proceeding pro se and
knowingly, voluntarily, and intelligently waived his right to counsel.
Accordingly, we are constrained to vacate Appellant’s guilty plea and his
Judgments of Sentence.9
Guilty plea vacated. Judgments of Sentence vacated. Counsel’s Petition
to Withdraw as Counsel denied. Appellant’s “Motion to Dismiss Attorney
James Karl” denied without prejudice. Case remanded. Jurisdiction
relinquished.
Judge Lazarus joins the Opinion.
Judge Bowes files a Dissenting Opinion.
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9 In light of our disposition, we need not address the remaining issues
presented in the Anders Brief.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2020
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