Com. v. Nickerson, W.

J-A15042-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WILLIAM NICKERSON, :
:
Appellant : No. 1609 EDA 2019
Appeal from the Judgment of Sentence Entered August 2, 2017
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006524-2016
CP-23-CR-0006525-2016
CP-23-CR-0007879-2014
BEFORE: LAZARUS, J., KING, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: Filed: December 17, 2020
William Nickerson (Appellant) appeals nunc pro tunc from his August
2, 2017 judgment of sentence. We affirm.
This case has a lengthy and odd procedural history, portions of which
this Court summarized previously.
On February 9, 2015, Appellant entered a guilty plea, at
docket CP-23-CR-0007879-2014 [(2014 indecent exposure
case)], to two counts of terroristic threats and one count [] of
indecent exposure []. The court sentenced Appellant to time-
served to 23 months’ imprisonment for the indecent exposure
conviction, followed by five years’ probation for [the] terroristic
threats counts. The court dismissed [two counts of harassment
and one count of indecent exposure]. These charges stemmed
from improper advances Appellant made to nursing assistants
who were attending to his elderly mother.
On November 22, 2016, Appellant entered a guilty plea, at
docket CP-23-CR-0006525-2016 [(July 2016 threats case)], to
[one count of] terroristic threats that arose out of threats made
*Retired Senior Judge assigned to the Superior Court.
J-A15042-20
on July 29, 2016. The court dismissed [accompanying]
harassment [and ethnic intimidation] charges and sentenced
Appellant to two years’ probation. Appellant also entered a third
guilty plea to an additional charge of terroristic threats, docketed
at CP-23-CR-0006524-2016 [(August 2016 threats case)], that
arose out of threats made on August 5, 2016. [H]arassment
charges were dismissed, and the court sentenced Appellant to a
consecutive term of two years’ probation.
The 2016 charges stemmed from Appellant’s threats to
Daniel Siegal, Esquire, and Andy Lewis, both Haverford Township
commissioners; Appellant called Siegal and threatened to kill
Siegal and everyone in Siegal’s office,4 and he threatened to kill
Lewis.
______
4 At sentencing, Siegal testified that Appellant called him
and said, “I am outside your office[,] I have a machine
gun[,] I am coming in and I am going to kill you and
everyone in your office.” N.T. [], 8/2/17, at 30.
Appellant also terrorized James P. McCans, Haverford Township
Director of Emergency Services. In July 2016, Appellant made a
telephone call in which he proclaimed that he had raped and
murdered McCans’ wife and daughter. The trial court noted that
Appellant’s “campaign of terror” began in 2009, and continued
even after his November 22, 2016 sentencing [for the July 2016
threats case and the August 2016 threats case]. Appellant, on
the other hand, characterize[d] his threats as “inappropriate
comments [made] under the influence of alcohol,” and
“spontaneous outbursts caused by anger fueled by alcohol.”
The 2016 guilty pleas violated Appellant’s probation [in the
2014 indecent exposure case]. Following the pleas, the court …
sentenced Appellant to full back[-]time of 498 days with
immediate parole for his indecent exposure conviction, and three
years’ probation for terroristic threats, which was consecutive to
the probationary terms for the [July 2016 threats case and the
August 2016 threats case].6
______
6 Because Appellant was diagnosed with delusional
disorder and had other mental health needs, his cases
were handled by the Delaware County Court of Common
Pleas Mental Health Court. In order to participate in the
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Mental Health Court Program, the defendant must have a
serious mental illness … diagnosis (schizophrenia, major
mood disorder, psychosis [not otherwise specified],
borderline personality disorder) that contributed to the
criminal behavior. Persons with co-occurring disorders
(mental health and substance use disorder) are evaluated
for Mental Health Court Program if they meet the criteria
for serious mental illness. [Perpetrators of [c]ertain crimes
are excluded from the program, such as felony sex
offenses, felony crimes of violence, and felony drug
offenses.
https://www.delcoda.com/information/treatment-
courts/mental-health-treatment-court (visited 3/11/19).
In April 2017, Appellant was accused of multiple technical
violations of his probation: sending harassing letters to former
victims, failing to report to his probation officer, consuming
alcohol, cutting off his ankle bracelet, and refusing to take his
antipsychotic medication. [On August 2, 2017, following a
hearing pursuant to Gagnon v. Scarpelli, 411 U.S. 778(1973),] at which Appellant stipulated to his violations, the court
sentenced Appellant to an aggregate term of imprisonment of
[10 to 20] years. Judgment of sentence was entered on the
docket on August 8, 2017. A motion for reconsideration of
sentence was filed [by Appellant’s privately-retained counsel,
Tracie M. Burns], on August 9, 2017, and on August 16, 2017,
the court denied reconsideration. …
[Notwithstanding his representation by Attorney Burns,
Appellant filed pro se a notice of appeal on August 9, 2017,
which was docketed in this Court at 2638 EDA 2017 (2017
appeal). Following] counsel’s motion to discontinue that appeal,
this Court entered an order remanding to the trial court for a
determination as to whether [Attorney Burns] had abandoned
Appellant, and to “take further action as required to protect
[Appellant’s] right to appeal[.]” [Order in 2017 appeal,
12/20/17]. The order stated that “upon consideration of
counsel’s application for discontinuance of the appeal, and the
pro se correspondence requesting the appeal proceed, the
application for discontinuance is denied.” Id.7
______
7 This Court's order reads in [relevant part], as follows:
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Upon review of the Court of Common
Pleas of Delaware County dockets, it appears
Appellant is still represented by counsel. There
is no indication on the [] dockets that privately
retained counsel, [Attorney Burns] was
granted leave to withdraw from the case
pursuant to Pa.R.Crim.P. 120(A)(4). There is
no indication on the [] dockets that the
Delaware County Office of Judicial Support
complied with Pa.R.Crim.P. 576(A)(4), by
notifying counsel that Appellant had filed a pro
se notice of appeal. On three occasions,
September 5, 2017, October 5, 2017, and
November 27, 2017, Attorney Burns failed to
file a timely Criminal Docketing Statement.
Attorney Burns also failed to respond to this
Court’s Order to show cause issued on
November 15, 2017.
There appearing no docket entries in the
trial court showing that counsel was permitted
to withdraw and that the Office of Judicial
Support notified counsel of the pro se filing,
this matter is REMANDED for 30 days for a
determination as to whether counsel has
abandoned Appellant and to take further
action as required to protect Appellant’s
right to appeal, including, but not limited
to, determining Appellant’s eligibility for
court[-]appointed counsel. If Appellant is
found to be eligible for court-appointed
counsel, then the trial court shall appoint
counsel for Appellant. The trial court shall
transmit to this Court within the thirty-day
period a written notice of all findings and any
actions taken thereon.
[***]
Order [in 2017 appeal, 12/20/17] (emphasis added).
In accordance with this Court’s order, the trial court
conducted a hearing on January 31, 2018. Both Appellant and
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[Attorney Burns] testified. Thereafter, the trial court made the
following findings of fact:
1. Appellant has expressed a desire to withdraw his
pending appeal before the Superior Court and,
instead, permit this court to rule on a pending
motion for reconsideration of sentence [nunc pro
tunc, filed December 15, 2017, by Attorney Burns].
This court agrees that this request is reasonable
under the circumstances.
2. Appellant has expressed a desire that [Attorney
Burns] represent him in the motion for
reconsideration of sentence.
3. [Attorney Burns] has agreed to represent
[Appellant] in the motion for reconsideration of
sentence.
Findings of Fact, 2/14/18.
On February 12, 2018, Appellant, through counsel, filed a
praecipe to withdraw and discontinue [the 2017] appeal, which
this Court granted on February 13, 2018. []
On March 28, 2018, the trial court held a hearing on
Appellant’s nunc pro tunc motion for reconsideration of sentence.
On April 12, 2018, Attorney Burns filed a motion to withdraw as
counsel, which the trial court granted. See Order, 4/18/18. On
May 14, 2018, the court denied Appellant’s nunc pro tunc motion
for reconsideration of sentence. That order also informed
Appellant that he had “a right to file an appeal from this Order
by filing a Notice of Appeal to the Superior Court within [30])
days of the date this Order is docketed by the Office of Judicial
Support.” See Order, 5/14/[2018].8
______
8On March 29, 2018, Appellant filed a pro se petition under
the Post Conviction Relief Act, 42 Pa.C.S.[] §§ 9541-9546
(PCRA). Thereafter, on June 2, 2018, Appellant filed a
request to withdraw that petition. There is no indication in
the docket that that petition was withdrawn; however, at
the time Appellant filed this petition, he was represented
by counsel. His pro se petition, therefore, was an improper
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hybrid filing and a nullity. See Commonwealth v. Ali, 10
A.3d 282, 293 (Pa. 2010) (pro se filing by represented
defendant constitutes “legal nullity”); see also
Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993)
(“[T]here is no constitutional right to hybrid representation
either at trial or on appeal.”).
On June 7, 2018, Appellant filed a pro se notice of appeal
from the May 14, 2018 order denying reconsideration of the
August 2, 2017 sentence.
Commonwealth v. Nickerson, 216 A.3d 364 (Pa. Super. 2019)
(unpublished memorandum at 1-8) (party designation altered; some
citations and footnotes omitted).
Appellant’s June 7, 2018 pro se notice of appeal was docketed in this
Court at 1929 EDA 2018 (2018 appeal). Upon review, this Court determined
that Appellant’s notice of appeal in the 2018 appeal was not filed timely from
the August 2, 2017 judgment of sentence. In the context of a sentence
following a revocation of probation, the filing of a post-sentence motion
seeking to revoke the sentence does not toll the appeal period, and any
appeal must be filed within the 30 days after the sentence was announced in
open court. Nickerson, supra (unpublished memorandum at 7-8) (citing
Pa.R.Crim.P. 708(E) (“The filing of a motion to modify sentence will not toll
the 30-day appeal period.”), Pa.R.Crim.P. 903(a) (providing for an appeal
period of 30 days), and Commonwealth v. Parlante, 823 A.2d 927, 929
(Pa. Super. 2003) (“An appellant whose revocation of probation sentence
has been imposed after a revocation proceeding has 30 days to appeal her
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sentence from the day her sentence is entered, regardless of whether or not
she files a post-sentence motion.”). Nevertheless, this Court remanded the
case to the trial court because it could not ascertain whether the trial court
had complied with its remand order in the 2017 appeal. This Court noted
several problems.
First, on the record at his August 2, 2017 sentencing hearing,
Appellant requested that Attorney Burns file an appeal from his judgment of
sentence. Nickerson, supra (unpublished memorandum at 8 n.9) (citing
N.T., 8/2/17, at 79-80). She did not do so, and when Appellant filed the
2017 appeal pro se, she did not respond to multiple inquiries from this Court
or file documents on his behalf despite still appearing as counsel of record at
the time. Id.
Second, Appellant was never informed that he had 30 days from his
judgment of sentence to file a direct appeal or that a motion to modify, even
if timely filed, would not toll the 30-day appeal period. Id. (unpublished
memorandum at 9-10).
Third, this Court determined that Attorney Burns and the trial court
“induced” Appellant to discontinue his timely-filed pro se 2017 appeal in
favor of a second motion for reconsideration, which was untimely-filed,
mirrored Appellant’s first motion for reconsideration except for the addition
of the phrase nunc pro tunc, and did not operate to preserve Appellant’s
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appeal rights in the event it was denied. Id. (unpublished memorandum at
11).
Fourth, after holding a hearing wherein the trial court and Attorney
Burns convinced Appellant to withdraw his 2017 appeal, and another hearing
wherein Attorney Burns presented the second motion for reconsideration,
the trial court gave Attorney Burns leave to withdraw from representing
Appellant. The trial court permitted Attorney Burns to withdraw before it
entered the order denying the second motion for reconsideration, and the
trial court never ascertained whether Appellant was entitled to court-
appointed counsel for an appeal and/or waived any such right. Thus,
Appellant filed his notice of appeal in the 2018 appeal pro se without the trial
court ever determining whether Appellant was entitled to counsel or waived
the right to counsel voluntarily and intelligently. Id. (unpublished
memorandum at 8-10).
This Court concluded that there was a breakdown in the operation of
the trial court and “[d]espite our instruction [in the 2017 appeal] to protect
[Appellant’s] direct appeal rights [on remand,] …. the various procedural
missteps here amounted to a deprivation of those rights.” Id. Therefore, we
remanded again, this time “for reinstatement of Appellant’s appellate rights
nunc pro tunc, a determination of whether Appellant waived his right to
counsel at the appellate stage and, if necessary, appointment of counsel.”
Nickerson, supra (unpublished memorandum at 12) (citing
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Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (holding that a
hearing is required to determine if defendant’s waiver of right to counsel at
appellate stage is knowing, intelligent and voluntary)).
On remand from the 2018 appeal, the trial court issued an order
“hereby” reinstating Appellant’s appellate rights and informing Appellant that
he may file a direct appeal from his 2017 sentence by filing “a [n]otice of
[a]ppeal within [60] days of this [o]rder.” Order, 5/23/2019, at 1. The order
also scheduled a Grazier hearing for the following month. Id. Five days
later, the trial court issued an amended order. Once again, the trial court
informed Appellant that it was “hereby” reinstating his appellate rights and
Appellant may file “a [n]otice of [a]ppeal” within 60 days of the date of the
amended order. Order, 5/28/2019, at 1. The order also re-scheduled the
Grazier hearing until July 3, 2019. Id.Meanwhile, on June 3, 2019, in accordance with the trial court’s order
but prior to the Grazier hearing, Appellant pro se filed the instant notice of
appeal. He listed the docket numbers at the 2014 indecent exposure case,
the July 2016 threats case, and the August 2016 threats case on the single
notice of appeal. Upon receipt of Appellant’s notice of appeal, this Court
docketed the appeal at 1609 EDA 2019 (the 2019 appeal).
On June 12, 2019, this Court issued a rule to show cause as to why it
should not quash the 2019 appeal pursuant to Commonwealth v. Walker,
185 A.3d 969 (Pa. 2018) (holding that Pa.R.A.P. 341(a) and its Note require
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the filing of separate notices of appeal when a single order resolves issues
arising on more than one trial court docket). Appellant responded, and this
Court discharged the rule to show cause and referred the issue to the merits
panel for consideration.
On July 3, 2019, the trial court conducted a Grazier hearing. At the
time of the Grazier hearing, this Court’s rule to show cause was still
pending. Without referencing either of its May 2019 orders reinstating
Appellant’s appellate rights, the trial court began the hearing by stating that
it was “going to reinstate your appellate rights as of the end of the
hearing…. You will have 30 days in which to renew your appeal or file a new
appeal…” N.T., 7/3/2019, at 5. Appellant requested to proceed pro se, even
after the trial court informed him that he had the right to be represented by
an attorney and that the court would appoint one for him if he could not
afford an attorney. Id. at 5-6. In response to a question by the assistant
district attorney, Appellant admitted that he had been diagnosed with
delusional disorder previously, but contended that diagnosis was not
accurate and he suffered only from alcoholism. Id. at 9-10. The
Commonwealth requested that the trial court order a competency evaluation
in order to assess whether Appellant was competent to represent himself on
appeal and whether his waiver of counsel was knowing, voluntary, and
intelligent. Id. at 10. The trial court ordered Appellant to undergo a
competency evaluation and continued the hearing.
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The psychologist who conducted the competency evaluation concluded
Appellant was competent to stand trial. Thereafter, the Grazier hearing
resumed on July 31, 2019. Once again, Appellant stated he wished to
represent himself. N.T., 7/31/2019, at 5. Appellant indicated that he
understood that he was going to be held to the same rules as an attorney,
that if he did not preserve issues properly the issue could be lost, and that
he needed to assert timely arguments or they could be lost. Id. at 17-18.
The assistant district attorney informed Appellant that if he represented
himself on appeal, Appellant could not challenge his own ineffectiveness in a
collateral PCRA petition. Id. at 17-18, 20. Both the trial court and the
assistant district attorney advised Appellant as to the benefit of proceeding
with counsel, but Appellant still declined.
There were multiple confusing exchanges between Appellant and the
trial court during the hearing. The trial court informed Appellant on the
record that his appellate rights “are reinstated as of today” and told him he
had “30 days in which to go through the steps again.” Id. at 8. Appellant
responded by informing the trial court that he already had an active appeal
before this Court (i.e., the 2019 appeal). The trial court told him that “as far
as I am concerned and as far as the Superior Court is concerned that is a
[nullity]. You have to start from scratch again.” Id. There were several more
exchanges like this one, where the trial court insisted that Appellant had to
file a new notice of appeal within 30 days and that any prior appeal was a
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nullity because they had not held a Grazier hearing. For example, after the
trial court again told Appellant that his appellate rights were being reinstated
“now,” the following exchange occurred.
[Appellant]: But my understanding is [the Superior Court]
restored my [appellate] right[s] in April. And on May 23rd you
issued an order giving me 60 days to file an appeal.
THE COURT: I am not giving you 60 days, I am giving you 30
days from today to file an appeal.
[Appellant] But you gave me 60 days from May 23rd.
THE COURT: Not a PCRA. Listen to me.
Id. at 9. At various points, despite Appellant’s insistence to the court that he
had filed a new notice of appeal in response to the trial court’s May 23, 2019
order, and that the trial court no longer had jurisdiction, the trial court told
him three times “there is no appeal” and claimed it did not know which order
he appealed from, but any order was a nullity because it had been issued
prior to the Grazier hearing. Id. at 12-13. The hearing concluded by the
trial court stating, “[r]ight now your appeal rights are back to day one. Go
ahead, represent yourself.” Id. at 20.
Following the hearing, the trial court entered an order stating that it
found Appellant’s waiver of his right to counsel to be knowing, voluntary,
and intelligent. Order, 8/15/2019, at ¶ 10. It noted Appellant’s past
diagnosis of delusional disorder, but determined there was no current
evidence of such a disorder based upon the competency evaluation. The trial
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court then stated that although Appellant “has made various procedural
errors in his attempt to represent him[self], these can be remedied by
wiping the slate clean and allowing him to start afresh.” Id. Once again, the
trial court purported to reinstate Appellant’s appellate rights, this time telling
Appellant that he must file a notice of appeal within 30 days of the order and
cautioning Appellant about the requirements of Walker.
On September 10, 2019, the trial court entered yet another order
related to Appellant’s appellate rights. The trial court stated based upon
letters from Appellant, it learned that Appellant had not received a full and
complete copy of the August 15, 2019 order. In response, the trial court
gave Appellant 60 days from the August 15, 2019 order to file a new notice
of appeal. It also informed Appellant that “[t]o remedy the Walker mistake,
[Appellant] should start his appeal afresh by filing separate notices of appeal
in each of the court dockets referenced above. This [o]rder extends his time
to do so until October 14, 2019.” Order, 9/10/2019, at 2 n.2.
In an order entered on October 15, 2019, the trial court changed
course, this time informing Appellant that “notwithstanding portions of prior
[o]rders to the contrary, and after consulting with Superior Court Criminal
Appeals Unit personnel, it is hereby [ordered that Appellant’s] [n]otices of
[a]ppeal of [the trial court’s] August 2, 2017 [o]rder(s) are deemed filed
under the above [c]ourt of [c]ommon [p]leas and Superior Court docket
numbers.” Order, 10/15/2019, at 1.
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Meanwhile, Appellant did not file any further notices of appeal, and
this appeal proceeded. Ultimately, the trial court issued an opinion pursuant
to Pa.R.A.P. 1925(a) and accepted a Rule 1925(b) concise statement of
matters complained of on appeal that Appellant had filed on his own
initiative. On appeal, Appellant raises a single issue for our review:
“[w]hether the [t]rial [c]ourt abused its discretion, lacked impartiality, and
engaged in unethical activities when it sentenced [Appellant] to 20 [] years
[of incarceration] for a technical probation violation with all the original
charges [being] misdemeanors.” Appellant’s Brief at 4.
Before we may consider the merits of Appellant’s issue, there are
preliminary matters we must examine first. Because this case returns to us
from remand in which we directed the trial court to reinstate Appellant’s
appellate rights nunc pro tunc, determine whether Appellant waived his right
to counsel at the appellate stage, and appoint counsel if necessary,
Nickerson, supra (unpublished memorandum at 12), we first determine
whether the trial court complied with our instructions. “It is axiomatic that
the court below, on remand, must comply strictly with the mandate of the
higher court.” Commonwealth v. Williams, 877 A.2d 471, 474-75 (Pa.
Super. 2005).
Inexplicably, the trial court’s May 23, 2019 order reinstated Appellant’s
appellate rights and provided 60 days for him to file a notice of appeal
before it determined on the record whether Appellant knowingly,
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voluntarily, and intelligently waived his right to counsel. Appellant had the
right to counsel at a hearing revoking a probationary sentence, and that
right to counsel extends to any appeals therefrom. See Commonwealth v.
Murphy, 214 A.3d 675, 679 n.3 (Pa. Super. 2019) (explaining Pa.R.Crim.P.
708(B)(1) provides the trial court “shall not” revoke a probationary sentence
unless a violation is found following a hearing “at which the defendant is
present and represented by counsel”); Pa.R.Crim.P. 122(B)(2) (providing
that appointment of counsel “shall be effective until judgment, including any
proceedings upon direct appeal”). Appellant was entitled to the assistance of
counsel in filing a notice of appeal. If he chose to waive his right to counsel,
the trial court needed to ensure that he did so knowingly, voluntarily, and
intelligently before Appellant’s case could proceed. Accord Murphy, 214
A.3d at 678-79 (“[T]his Court has a duty to review whether Murphy properly
waived his right to counsel prior to the presentation of evidence against him
at the violation of probation hearing.”) (emphasis added; citation and
internal quotation marks removed).
While we could remand and instruct the trial court to conduct another
Grazier hearing and then to reinstate Appellant’s appellate rights, we
conclude that another remand is not necessary to protect Appellant’s right to
counsel. The trial court eventually conducted a Grazier hearing in two parts
after Appellant filed a notice of appeal. See generally N.T., 7/3/2019 and
N.T., 7/31/2019. Based upon Appellant’s answers to the colloquy during the
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hearings and the results of his competency evaluation, the trial court
determined that Appellant waived his right to counsel knowingly, voluntarily,
and intelligently.1 Order, 8/15/2019, at 10. Appellant has neither challenged
1 In its brief, the Commonwealth notes it had opposed Appellant’s motion to
proceed pro se before the trial court. The Commonwealth’s opposition was
based upon Appellant’s prior diagnosis of delusional disorder, “best practice”
in Mental Health Court, and its belief that Appellant does not have the
technical legal knowledge to present his case effectively on appeal.
Commonwealth Brief at 12.
Notwithstanding Appellant’s past diagnosis of delusional disorder, at the
time he waived his right to counsel, the trial court determined Appellant was
not displaying evidence of delusions. Order, 8/15/2019, at 10. Moreover, the
psychologist who conducted the competency evaluation concluded that
Appellant was competent to stand trial. The standards for standing trial and
waiving the right to counsel are the same; both standards require that the
defendant to have the mental capacity and ability to understand the
proceedings. Commonwealth v. Starr, 664 A.2d 1326, 1339 (Pa. 1995)
(citing Godinez v. Moran, 509 U.S. 401 n. 12 (1993)). So long as the court
is satisfied that a defendant is competent, a defendant’s history of
psychiatric illness does not render him incapable of waiving the right to
counsel intelligently. Id. at 1338-39.
Furthermore, all defendants have the constitutional right to represent
themselves without the assistance of counsel. See Faretta v. California,
422 U.S. 806, 821 (1975) (holding accused has a right to conduct own
defense that is implicit in the structure of the Sixth Amendment);
Commonwealth v. Szuchon, 484 A.2d 1365, 1376-77 (Pa. 1984) (holding
accused has a right to conduct own defense pursuant to Article 1, Section 9
of the Pennsylvania Constitution). “[T]his highly personal constitutional right
operates to prevent a state from bringing a person into its criminal courts
and in those courts force a lawyer upon him when he asserts his
constitutional right to conduct his own defense.” Starr, 664 A.2d at 1334.
“[B]oth the Federal Constitution and the Pennsylvania Constitution require
only that in order to validly assert the right to self-representation, a
defendant’s waiver of the corollary right to counsel be knowing, intelligent
and voluntary.” Id. Although understandably tempting, the trial court may
not consider a defendant’s best interests, including the risk that the
(Footnote Continued Next Page)
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the validity of his waiver of counsel nor requested counsel. We have
reviewed the notes of testimony from the Grazier hearings, and,
notwithstanding the tardiness of the hearings, we are satisfied that the
colloquy of Appellant during the hearings complied with Pa.R.Crim.P. 121.2
(Footnote Continued) _______________________
defendant may represent himself less effectively than an attorney, or a
defendant’s “technical legal knowledge and courtroom skill.” Id. at 1336-37.
2 Rule 121 permits a defendant to waive the right to be represented by
counsel. Pa.C.R.P. 121(A)(1). Subsection (A)(2) sets forth the requirements
for a valid waiver.
(2) 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
(Footnote Continued Next Page)
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Our second directive was to ensure Appellant’s right to appeal has
been protected. Notwithstanding all of the confusion that followed, in
response to the May 23, 2019 order reinstating his appellate rights nunc pro
tunc, Appellant timely filed a notice of appeal. While this protected his right
to appeal, we must determine whether his notice of appeal complied with
Walker.
Appellant’s filing of a single notice of appeal from his judgment of
sentence entered at multiple docket numbers ordinarily would constrain us
(Footnote Continued) _______________________
(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 defendant cannot ‘knowingly, voluntarily, and intelligently’ waive
counsel” within the meaning of Rule 121 “until informed of the full
ramifications associated with self-representation.” Commonwealth v.
Robinson, 970 A.2d 455, 460 (Pa. Super. 2009) (en banc). “In order to
make a knowing and intelligent waiver, the individual must be aware of both
the nature of the right and the risks and consequences of forfeiting it.”
Commonwealth v. Houtz, 856 A.2d 119, 123 (Pa. Super. 2004) (citation
omitted). Accordingly, a colloquy that complies with the relevant parts of
Rule 121(A)(2) is required before the trial court may permit a defendant to
proceed without counsel. Id.; Murphy, 214 A.3d at 678-79 (“Failing to
conduct an on the record colloquy pursuant to Rule 121(c) before allowing a
defendant to proceed pro se constitutes reversible error.”). “[W]ithout a
colloquy the court cannot ascertain that the defendant fully understands the
ramifications of a decision to proceed pro se and the pitfalls associated with
his lack of legal training.” Robinson, 970 A.2d at 460.
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to quash his appeal pursuant to Walker’s bright-line rule requiring separate
notices of appeal. However, “we may overlook the requirements of Walker
where … a breakdown occurs in the court system, and a defendant is
misinformed or misled regarding his appellate rights.” Commonwealth v.
Larkin, 235 A.3d 350, 354 (Pa. Super. 2020) (en banc) (holding that a
breakdown occurred when the lower court informed Larkin that he had thirty
days to file “an appeal” despite the need to file separate notices of appeal at
each docket number); Commonwealth v. Stansbury, 219 A.3d 157 (Pa.
Super. 2019) (same in the PCRA context).
Here, like the orders in Larkin and Stansbury, in its first order
reinstating Appellant’s appellate rights, the trial court misled Appellant that
he may file a direct appeal from his 2017 sentence by filing “a [n]otice of
[a]ppeal within [60] days of this [o]rder.” Order, 5/23/2019, at 1 (emphasis
added). The trial court also used the singular in its amended order entered
five days later. Order, 5/28/2019, at 1 (informing Appellant that he may file
“a [n]otice of [a]ppeal”).3 Moreover, as discussed supra, the trial court
3 The trial court exacerbated the matter by continuing to misinform and
mislead Appellant. After Appellant filed his notice of appeal, and while the
Superior Court’s rule to show cause was pending, the trial court purported to
reinstate Appellant’s appellate rights three more times: at the first Grazier
hearing, at the second Grazier hearing, and in the August 15, 2019 written
order following those hearings. It also purported to reinstate Appellant’s
appellate rights after the Superior Court discharged the rule to show cause
on September 3, 2019, and referred the Walker issue to this panel. See
Trial Court Order, 9/10/2019. In total, the trial court informed Appellant six
(Footnote Continued Next Page)
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erroneously issued these orders before ensuring that Appellant’s waiver of
his right to counsel was knowing, intelligent, and voluntary. Based on the
foregoing breakdown in court operations and failure to ensure Appellant’s
right to counsel was protected, we have no difficulty concluding that we
should overlook the Walker violation in this case.
We may proceed now to the merits. Appellant’s lone issue on appeal
concerns a challenge to the discretionary aspects of his sentence following
the revocation of his probation. Although our scope of review following a
judgment of sentence imposed after the revocation of probation is not
unlimited, this issue falls within the scope of matters we may examine. See
Commonwealth v. Starr, 234 A.3d 755, 759 (Pa. Super. 2020) (“In
reviewing an appeal from a judgment of sentence imposed after the
revocation of probation, this Court’s scope of review includes the validity of
the hearing, the legality of the final sentence, and if properly raised, the
discretionary aspects of the appellant’s sentence.”).
(Footnote Continued) _______________________
different times that it was reinstating his appellate rights and provided him
with six different compliance deadlines. It twice incorrectly informed
Appellant that he could “wipe the slate clean” as to Walker and “start his
appeal afresh” by filing new notices of appeal. Trial Court Order, 8/15/2019,
at ¶ 10; 9/10/2019, at 2 n.2. It did so at a time when the Superior Court
had jurisdiction over the appeal. See Pa.R.A.P. 1701(a) (limiting the trial
court’s actions after a notice of appeal has been filed). At the time it issued
its August 15, 2019 order, the Superior Court’s rule to show cause was still
pending.
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Nevertheless, “[a]n appellant wishing to appeal the discretionary
aspects of a probation-revocation sentence has no absolute right to do so
but, rather, must petition this Court for permission to do so.”
Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008). Before
this Court can address such a discretionary challenge, an appellant must
invoke this Court’s jurisdiction by establishing that (1) the appeal was timely
filed; (2) the challenge was properly preserved by objecting during the
revocation sentencing or in a post-sentence motion; (3) his or her brief
includes a concise statement of the reasons relied upon for allowance of
appeal of the discretionary aspects of the sentence pursuant to Pa.R.A.P.
2119(f); and (4) the Rule 2119(f) statement raises a substantial question
that the sentence is inappropriate under the Sentencing Code.
Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015).
Appellant timely filed a notice of appeal nunc pro tunc and included a
Rule 2119(f) statement in his brief. However, while Appellant did file a post-
sentence motion through Attorney Burns, the argument he raised in the
motion differs from the argument he presents on appeal. To preserve a
discretionary-aspects-of-sentence challenge properly, the specific
argument on appeal must have been presented to the trial court in the
form of an objection at sentencing or in the post-sentence motion. See
Commonwealth v. Rivera, 238 A.3d 482, 499 (Pa. Super. 2020) (quoting
Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (“[F]or any
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claim that was required to be preserved, this Court cannot review a legal
theory in support of that claim unless that particular legal theory was
presented to the trial court.”)).
On appeal, Appellant argues that the trial court did not act impartially
and abused its discretion by imposing a sentence that is excessive in
comparison to his technical violations of probation and his original
misdemeanor charges, and failed to consider mitigating factors such as his
age, alcoholism, and history of non-violence. Appellant’s Brief at 15-17. In
the post-sentence motion filed by Attorney Burns, on the other hand, the
trial court was presented with an argument that the sentence was excessive
because the trial court failed to consider Appellant’s untreated mental health
disorder. Specifically, Attorney Burns referenced Appellant’s delusional
disorder and his denial that he had the same, and argued the trial court
should reconsider Appellant’s sentence because this disorder can cause
individuals to resist taking medication, and the disorder played a role in
Appellant’s criminal behavior.
Our review of the August 2, 2017 sentencing hearing does not reveal
any objections that have preserved the specific arguments Appellant wishes
to present on appeal. Accordingly, Appellant has not preserved the argument
he presents on appeal, and he has failed to invoke our jurisdiction to review
his discretionary aspects of sentencing claim. Therefore, we are unable to
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review his discretionary aspects of sentencing claim and are constrained to
affirm his judgment of sentence.4
Judgment of sentence affirmed.
4 The Commonwealth urges us to remand in order to reinstate Appellant’s
post-sentence rights. In its brief, the Commonwealth recognizes that
Appellant’s arguments on appeal have not been preserved before the trial
court, and emphasizes that Appellant never had a chance to file a post-
sentence motion pro se. Commonwealth’s Brief at 15. It contends if we were
able to reach the merits, there are several indicators that the trial court’s
sentence of 10 to 20 years imprisonment was excessive compared to the
technical violations of probation by an individual in mental health court. See
Commonwealth’s Brief at 17-21 (emphasizing that trial court ran four
sentences consecutively for an aggregate sentence of 10 to 20 years,
sentence was for violations of the conditions of probation and not
commission of new crimes, Appellant’s probation officer recommended an
aggregate sentence of 7½ to 15 years, and immediately before sentencing
the trial court stated “life is just more interesting for these people when they
are indulging their mental illness” (citing N.T., 8/2/2017, at 72); also
positing Appellant’s refusal to take antipsychotic medication and allegations
of homosexual overtures against parole/probation officer were not valid
reasons to impose sentence of maximum confinement, plus many of
Appellant’s threats were “fantastical”).
However, we are unable to reinstate Appellant’s post-sentence rights at
this juncture. This case returns to us from remand, where we directed the
trial court to reinstate “Appellant’s appellate rights nunc pro tunc” based
upon Attorney Burns’s abandonment of Appellant in the 2017 appeal and
inducement to withdraw the 2018 appeal. Attorney Burns did file timely a
post-sentence motion on Appellant’s behalf before abandoning him in the
2017 appeal. Any claim that Attorney Burns failed to preserve certain
discretionary aspects of sentencing claims for appeal would need to be
presented to the trial court in a timely-filed PCRA petition at the conclusion
of direct review for consideration by the trial court at that time.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/20
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