Com. v. Latham, S. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
SHONTEE LATHAM
Appellant No. 1360 WDA 2014
Appeal from the PCRA Order July 14, 2014
In the Court of Common Pleas of Lawrence County
Criminal Division at No(s): CP-37-CR-0001266-2008
BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED JULY 16, 2015
Appellant, Shontee Latham, appeals pro se from the PCRA order
entered July 14, 2014, by the Court of Common Pleas of Lawrence County.
We remand with instructions for the PCRA court to conduct a Grazier1
hearing and an on-the-record colloquy to confirm Latham’s desire to proceed
pro se.
On April 23, 2010, a jury convicted Latham of firearms not to be
carried without a license, possession of a firearm prohibited, recklessly
endangering another person, and terroristic threats. On August 6, 2010, the
trial court sentenced Latham to five to ten years’ imprisonment. This Court
affirmed Latham’s judgment of sentence on appeal. See Commonwealth
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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v. Latham, 60 WDA 2011 (Pa. Super., filed Oct. 18, 2011) (mem. op.).
Latham did not seek allocatur with the Pennsylvania Supreme Court.
Latham filed a pro se PCRA petition. The PCRA court appointed
counsel to represent Latham as a first time, indigent PCRA petitioner.
Subsequently, on March 19, 2013, Latham filed a pro se Motion to Dismiss
Counsel and Proceed Pro Se, expressing dissatisfaction with his court-
appointed counsel. The PCRA court scheduled a hearing on Latham’s motion
for June 7, 2013; however, the hearing was continued several times at
Latham’s request. The PCRA court finally conducted a hearing on January
31, 2014. At the outset of the hearing, the following brief exchange
occurred:
THE COURT: We’re here for a hearing on the motion for post-
conviction collateral relief that the Defendant has filed. The
Defendant has indicated that he wished to proceed pro se, and,
Mr. Latham, I take it that’s still your desire, to proceed pro se?
MR. LATHAM: Yes, sir.
THE COURT: Okay. Very well. You may proceed.
PCRA Hearing, 1/31/14 at 3.
There is no indication that appointed counsel properly withdrew her
representation pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). Latham proceeded to represent himself throughout the hearing, at
the conclusion of which the court denied his PCRA petition. This timely pro
se appeal followed.
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We must first determine whether the PCRA court adequately advised
Latham of his right to counsel and confirmed his desire to proceed pro se.
In Commonwealth v. Robinson, 970 A.2d 455 (Pa. Super. 2009), an en
banc panel of this Court determined that “[r]egardless of how unambiguous
a defendant's [desire to proceed pro se] may be, without 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. Thus, a defendant cannot ‘knowingly, voluntarily, and
intelligently’ waive counsel until informed of the full ramifications associated
with self-representation.” Id. at 460 (citation omitted). The en banc panel
held that a waiver “colloquy must be held by the PCRA court of its own
accord … once the defendant has expressed a desire to proceed pro se as
long as PCRA counsel has not properly withdrawn by complying with the
dictates of Turner/Finley.” Id.
Instantly, appointed counsel did not properly withdraw and the record
is devoid of any indication that the PCRA court conducted a Grazier colloquy
before permitting Latham to proceed pro se. Accordingly, we remand for an
on-the-record Grazier colloquy, during which the court shall inform Latham
“that he not only has a right to have counsel on appeal, but that he was also
entitled to a counseled amended petition and representation before the
PCRA court.” Commonwealth v. Figueroa, 29 A.3d 1177, 1182 (Pa.
Super. 2011).
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Should Latham decide that he does not wish to continue representing
himself, the PCRA court shall in its discretion either reinstate previously-
appointed counsel or appoint new counsel. If counsel is appointed, counsel
must enter his or her appearance and promptly request that this Court
vacate the PCRA order so that an amended petition may be filed below, in
which case we will relinquish jurisdiction. If Latham decides to proceed pro
se, the PCRA court shall promptly inform this Court so that we may address
this appeal on the merits.
Case remanded for proceedings consistent with this memorandum.
Panel jurisdiction retained.
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