Com. v. Turner, B. ( 2019 )


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    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    v.
    BRIAN TURNER
    Appellant              :   No. 364 EDA 2018
    Appeal from the Judgment of Sentence December 20, 2017
    In the Court of Common Pleas of Northampton County Criminal Division
    at No(s): CP-48-CR-0002115-2017
    BEFORE:      LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY McLAUGHLIN, J.:                         FILED JANUARY 07, 2019
    Brian Turner appeals from the judgment of sentence entered following
    his convictions for driving under the influence of alcohol ("DUI"), driving while
    operating privilege suspended or revoked, and failure to use hazard warning
    signals.' Turner argues the court violated his constitutional right to counsel.
    We vacate the judgment of sentence and remand for a new trial.
    The facts underlying the charges are not relevant to our disposition. In
    short, Pennsylvania State Trooper Michael Hodgskin discovered Turner on
    February 5, 2017, asleep in his car on the side of the road around 4 a.m. After
    rousing Turner, having Turner perform field sobriety tests, and attempting to
    have him perform       a   breathalyzer test, Officer Hodgskin arrested Turner for
    1-   See 75 Pa.C.S.A. §§ 3802(a)(1), 1543(a), and 4305, respectively.
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    DUI. Turner's license was suspended at the time of his arrest. See N.T.,
    12/5/17, 5-19.
    Officer Hodgskin filed         a   criminal complaint against Turner, and in June
    2017, Turner appeared in magisterial district court. He signed forms waiving
    his right to counsel in that court and waiving a preliminary hearing.
    Turner's first appearance before the trial court was at his formal
    arraignment on October 12, 2017. Turner told the court that he was
    represented by an attorney in Harrisburg. N.T., 10/12/17, at 2-3. Turner
    acknowledged that the attorney had not entered his appearance, but stated
    that it was because the attorney had been on vacation. 
    Id. Turner said
    that
    an unidentified person in the courthouse had advised him to                 "just come here
    today and plead not guilty or whatever and make sure I'm here with [the
    attorney]" on the trial date. 
    Id. at 3.
    The   trial judge replied, "I'm going to
    mark on this list that you don't have an attorney because he hasn't formally
    entered his appearance.    .   .   .   Until he does, the notices are going to go to you."
    
    Id. at 3-4.
      The court did not offer Turner court -appointed counsel, conduct              a
    waiver colloquy, or warn him that appearing without counsel in the future
    risked forfeiture of his right to counsel.
    Turner appeared before              a   different judge in December 2017, for        a
    pretrial conference. No attorney appeared at the conference on Turner's
    behalf. The prosecutor introduced Turner to the court as "a pro se individual."
    N.T., 12/4/17, at 2 (italics added). Turner did not say otherwise, and the court
    did not inquire into the status of Turner's representation or conduct               a   waiver
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    colloquy. Nor did Turner ask for          a    continuance so retained counsel could
    attend. The court proceeded with the pretrial conference, noting that Turner
    was charged with      a   first offense DUI of general impairment and faced                     a
    sentence of six -months' probation.           
    Id. at 2-4.
    Turner entered    a    plea of not
    guilty. 
    Id. at 4-5.
    The court set trial for the following day. 
    Id. at 5.
    The next day, Turner appeared for trial unrepresented by counsel and
    the trial began before the same judge as had presided at the pretrial
    conference. The judge again did not offer Turner court -appointed counsel,
    inquire into the status of Turner's representation, or conduct                       a   waiver
    colloquy. Nor was there any discussion of whether Turner had forfeited his
    right to counsel.
    A bench   trial then ensued with Turner representing himself. When the
    Commonwealth moved to admit           a   video of the incident into evidence, Turner
    objected that he had not been given            a   chance to view the video before trial.
    
    Id. at 34-37.
       The prosecutor responded that Turner had not asked to see it
    and that if he had done so, the Commonwealth would have made                             a   copy
    available.   
    Id. at 35-36.
    Turner argued that the court          had scheduled the trial
    the day beforehand, and as      a   layperson, he should have been advised at the
    pretrial conference that video evidence existed. 
    Id. at 36.
    The court overruled
    Turner's objection, stating, "Because you are not represented by                 a   lawyer in
    this   matter, that's your choice. That has                  nothing   to   do       with     the
    Commonwealth's obligation."         
    Id. at 37.
    Turner presented no evidence in his
    defense, but argued his innocence.
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    The court found Turner guilty, and later sentenced him to              a   total of   3
    days to 6 months in jail.2 Turner, still acting pro se, obtained leave from the
    trial court to file   a   notice of appeal nunc pro tunc, and then filed this appeal.
    Appellate counsel then entered his appearance.
    Turner, represented by private counsel on appeal, raises the following:
    I.     Whether [Turner] was denied his right to counsel as
    guaranteed under the Sixth Amendment to the Constitution
    of the United States and by Article 1 § 9 of the Pennsylvania
    Constitution when the trial court proceeded to try [Turner]
    as a pro se defendant after he informed the court he had
    consulted with legal counsel?
    II.    Whether [Turner] waived his right to trial counsel when he
    did not knowingly, intelligently, or voluntarily do so?
    III.   Whether [Turner] was denied his right to counsel as
    guaranteed under the Sixth Amendment to the constitution
    of the United States and Article 1 § 9 of the Pennsylvania
    Constitution and/or [Turner's] due process rights were
    violated where the trial court failed to conduct an on -the -
    record colloquy to determine whether [Turner] was
    knowingly, intelligently, and voluntarily waiving his right to
    counsel at trial?
    Turner's Br. at 4-5 (suggested answers and answers below omitted). Although
    Turner presents his question in three parts, he presents        a   singular argument:
    that the trial court erred     in   trying him pro se without conducting   a   colloquy to
    2   But see Commonwealth            v. Giron, 
    155 A.3d 635
    , 640 (Pa.Super. 2017)
    (holding enhanced           penalties based on refusal of blood testing are
    unconstitutional).
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    ensure that Turner knowingly, intelligently, and voluntarily waived his right to
    counsel. See Turner's Br. at 9-13.3
    The United States and Pennsylvania Constitutions provide                            a   right to
    counsel for any criminal defendant facing                   a    sentence of imprisonment. See
    Commonwealth v. Moody, 
    125 A.3d 1
    ,   14    (Pa.   2015);4 see also
    Pa.R.Crim.P. 122, Comment.                 It    is    the responsibility of        a   trial court to
    determine whether          a   criminal defendant has waived his or her right to counsel
    knowingly,       intelligently,      and        voluntarily.         See     Pa.R.Crim.P.       121(C);
    Commonwealth v. Davido, 
    868 A.2d 431
    , 437-38                                (Pa. 2005). Because we
    presume against the waiver of              a    constitutional right, we do not find waiver
    where the record      is       silent. Commonwealth v. Phillips, 
    141 A.3d 512
    , 517
    (Pa.Super.) (citing Commonwealth v. Monica, 
    597 A.2d 600
    , 603 (Pa.
    1991)). "The record must show, or there must be an allegation and evidence
    which shows, that an accused was offered counsel but intelligently and
    understandingly rejected the offer. Anything less                     is   not waiver."   
    Id. (quoting Monica,
    597 A.2d at 603).
    3 The trial court entered a statement pursuant to Rule 1925(a) of the
    Pennsylvania Rules of Appellate Procedure, stating that the court would rely
    on the record instead of filing an opinion. However, the court's reasoning does
    "not already appear of record," and the court failed to "specify in writing the
    place in the record where [the] reasons [for the order or the rulings or other
    errors complained of] may be found." Pa.R.A.P. 1925(a)(1).
    4 See also Commonwealth v. Johnson, 
    828 A.2d 1009
    , 1015 (Pa. 2003)
    (stating right to counsel under Article I, § 9 of Pennsylvania Constitution is
    coterminous with Sixth Amendment for determining when right attaches).
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    Rule 121 of the Pennsylvania Rules of Criminal Procedure outlines the
    information the court must elicit from the defendant to ensure      a   valid waiver
    of counsel. See Pa.R.Crim.P. 121(A)(2).5 The court must determine whether
    the defendant has waived the right to counsel regardless of the defendant's
    financial eligibility for appointed counsel, and the failure to conduct   a   Rule 121
    5
    Rule 121(A)(2) provides:
    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).
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    colloquy constitutes    per se reversible error. Commonwealth         v.   Clyburn, 
    42 A.3d 296
    , 300-01 (Pa.Super. 2012). A waiver of the right to counsel before             a
    magisterial district judge does not constitute waiver in the Court of Common
    Pleas. Rather, the trial court must conduct a new colloquy prior to proceedings
    in    that court. See       Pa.R.Crim.P.       121(C);   see also 
    id., Comment; Commonwealth
    v. Johnson, 
    158 A.3d 117
    , 123 (Pa.Super. 2017).
    Here, Turner was charged with     a   misdemeanor DUI, which exposed him
    to   a   potential sentence of six months' imprisonment. See 75 Pa.C.S.A.              §
    3803(a)(1). He therefore had       a   constitutional right to counsel. 
    Moody, 125 A.3d at 14
    . Although Turner waived this right for his preliminary hearing, the
    trial court was obligated to conduct       a   waiver colloquy on the record prior to
    proceeding to trial. 
    Johnson, 158 A.3d at 123
    . Nonetheless, and even though
    Turner informed the trial court during his formal arraignment that he was in
    the process of obtaining representation, the court failed to conduct        a   colloquy,
    either at the arraignment, the pretrial conference, or trial. The record               is
    therefore silent as to whether Turner was aware of his right to counsel and            is
    insufficient to establish that he knowingly, intelligently, and voluntarily waived
    that right. See 
    Phillips, 141 A.3d at 517
    .
    The Commonwealth argues that           a   waiver colloquy was unnecessary
    because Turner forfeited his right to counsel. The Commonwealth contends
    that Turner forfeited his right because he had the opportunity and financial
    ability to seek counsel, but appeared in court without representation and did
    not request    a   continuance in order to obtain representation. In support, the
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    Commonwealth cites 
    Lucarelli, 971 A.2d at 1179
    , and Commonwealth v.
    Wentz, 
    421 A.2d 796
    (Pa.Super. 1980) (plurality).
    It   is   true that   a   court need not conduct     a   colloquy to ensure there was
    a   knowing, intelligent, and voluntary waiver of the right to counsel where the
    defendant has forfeited that right. See Commonwealth v. Staton, 
    120 A.3d 277
    , 286 (Pa. 2015). A criminal defendant may forfeit the right to counsel
    only through           "extremely serious           misconduct"      or   "extremely dilatory
    misconduct." Id. (citing 
    Lucarelli, 971 A.2d at 1179
    ).
    We disagree that Turner forfeited his right to counsel. His conduct did
    not rise to the level of "extremely serious misconduct" or "extremely dilatory
    misconduct." 
    Id. The Commonwealth's
    citations to Lucarelli and Wentz are
    unavailing. In Lucarelli, the defendant hired several attorneys over an eight -
    month period, and obtained $20,000 from the court five weeks before trial
    specifically for the purposes of obtaining representation, but had no excuse
    for not having counsel at the time of trial. 
    Lucarelli, 971 A.2d at 1180
    . The
    Pennsylvania Supreme Court concluded the defendant's "extremely dilatory
    misconduct" constituted             a   forfeiture of counsel. Similarly,   in   Wentz, the trial
    court advised the defendant at his arraignment that he was not eligible for
    court -appointed counsel and that he should obtain private 
    counsel. 421 A.2d at 798
    . The defendant nonetheless appeared at trial without counsel and
    without an explanation other than that he had "requested 'free' counsel" and
    gave no indication that he had taken reasonable steps to obtain private
    counsel.     
    Id. The court
    reiterated that he was not eligible for court -appointed
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    counsel. The defendant replied that he "didn't know any attorneys" in the area
    but admitted that he had known the trial date for "weeks and weeks."          
    Id. We concluded
    that the court had not erred in requiring the defendant to proceed
    without the assistance of counsel. We explained that otherwise,      a   'court wise'
    criminal defendant could continually appear in court without counsel on the
    date scheduled for his trial but refuse [to waive his right to counsel,] making
    it impossible to proceed with his trial."    
    Id. at 800.
    Here, Turner did not cause any delay in the proceedings or do anything
    to risk   a   delay, much less engage in extremely dilatory conduct or extremely
    serious misconduct. Rather, although he told the court at the arraignment that
    he had obtained private counsel, he did not seek a continuance of the
    arraignment in order for counsel to appear on his behalf. Nor did he at any
    subsequent proceeding ask for      a   continuance, despite the absence of counsel.
    At most, he acquiesced in the proceedings going forward without private or
    appointed counsel appearing on his behalf, and without any colloquy
    establishing his knowing, intelligent, and voluntary waiver of his right to
    counsel.
    The Commonwealth's other arguments are similarly without force. The
    record is silent on whether Turner qualified for court -appointed counsel, and
    we decline to make that determination in the first instance. Finally, the
    Commonwealth's suggestion that forfeiture may occur where the defendant
    has the means to retain counsel but knowingly appears for trial without
    counsel lacks      a   proper foundation. To the extent Wentz suggests such          a
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    standard, it   is a non -binding   plurality decision, and even if binding, it has been
    supplanted by Lucarelli's "extremely serious misconduct" or "extremely
    dilatory misconduct" standard. See Commonwealth v. Travillion, 
    17 A.3d 1247
    , 1248 (Pa. 2011) (stating forfeiture arises from       a   defendant's "extremely
    serious misconduct" or "extremely dilatory conduct" and finding forfeiture).
    We therefore vacate Turner's judgment of sentence and remand for a new
    trial. See 
    Monica, 597 A.2d at 604
    (remanding for new trial where trial court
    failed to conduct on -the -record colloquy before allowing defendant to proceed
    to trial pro se).
    Judgment of sentence vacated.              Case   remanded    for proceedings
    consistent with this memorandum. Jurisdiction relinquished.
    Judgment Entered.
    J seph D. Seletyn,
    Prothonotary
    Date: 1/7/19
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Document Info

Docket Number: 364 EDA 2018

Filed Date: 1/7/2019

Precedential Status: Precedential

Modified Date: 1/8/2019