Com. v. Cole, M. ( 2022 )

J-S29012-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW JOSEPH COLE :
:
Appellant : No. 1182 WDA 2021
Appeal from the Judgment of Sentence Entered August 30, 2021
In the Court of Common Pleas of Clearfield County Criminal Division at
No(s): CP-17-CR-0000264-2020
BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: OCTOBER 31, 2022
Matthew Joseph Cole appeals from the judgment of sentence entered
by the Clearfield County Court of Common Pleas after the court held a bench
trial, with Cole acting pro se, and found Cole guilty of Driving Under the
Influence (“DUI”) and several summary offenses. Cole argues on appeal that
the court abused its discretion by failing to grant him a continuance on the
morning of the bench trial so that he could continue to try to obtain counsel.
We conclude that the trial court did not abuse its discretion, and we therefore
affirm Cole’s judgment of sentence.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Cole was charged with DUI and several summary motor vehicle
violations on January 22, 2020.1 In July 2020, Cole entered into a negotiated
plea agreement with the Commonwealth. However, on October 26, 2020, the
Commonwealth withdrew its consent to the plea agreement at a hearing in
which Cole appeared unrepresented. Cole indicated at the hearing that he had
applied to the Public Defender’s Office, but had not yet heard back. The trial
court asked the Assistant Public Defender to check into Cole’s application. The
trial court also specifically informed Cole that the Commonwealth’s withdrawal
of the plea offer meant his case was being placed back on the trial list, and
that his case would “be tried consistent with Rule 600. That will give you
enough time to obtain counsel, whether it’s the public defender’s office or
not.” N.T., 10/26/20, at 3.
Cole failed to appear at a pretrial conference on January 21, 2021. At
the following pretrial conference, on March 18, 2021, Cole appeared, but
almost three hours late. He did not have counsel. After the parties established
that the matter would proceed to a bench trial, the court set the trial date for
June 15, 2021. The Commonwealth asked the court to appoint standby
counsel, and the court agreed it would. The court instructed Cole in no
uncertain terms that his bench trial had been set for June 15, 2021, and would
begin promptly at 9 a.m.
____________________________________________
1 Cole did not appear for his preliminary hearing.
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The matter proceeded to the bench trial on the scheduled date, which
was almost one and one-half years after the charges had been filed against
Cole. The Chief Public Defender for Clearfield County was present at the trial
as standby counsel. He informed the court that the Public Defender’s Office
had received an application for representation from Cole the day before - June
14, 2021. However, the office determined that Cole did not qualify for a public
defender, and had notified Cole of its determination. See N.T., 6/15/21, at 5.
Cole, meanwhile, told the court he had sent 15 applications to the Public
Defender’s Office over the past year and a half. However, according to Cole,
those applications had repeatedly been returned to him on the basis that he
had failed to complete them correctly. When the court asked Cole for evidence
of this, Cole was only able to produce a single letter from the Public Defender’s
Office, dated December 1, 2020, stating that an application had been returned
to Cole for lack of documentation. See id. at 6. The court pointed out to Cole
that over six months had elapsed since he had received that letter. It
proceeded to inform Cole that if he could not provide any evidence that he
had received subsequent letters from the Public Defender's Office regarding
any applications he may have filed in those six months, or evidence of the
applications themselves, the court was going to proceed to trial. Cole was not
able to produce any such evidence.
Cole told the court, though, that he had hired a private attorney the day
before. According to Cole, the attorney informed him that he was unable to
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attend the trial the following day on such short notice. The court asked the
Commonwealth for its position on the continuance, and the Commonwealth
responded that it was ready to proceed to trial.
The case proceeded to the bench trial, with Cole acting pro se, and the
Chief Public Defender acting as standby counsel. The court found Cole guilty
of DUI and several summary offenses, and sentenced him to three to six
months’ incarceration for the DUI charge and to fines and costs for the
summary offenses. Cole filed a timely notice of appeal, and both Cole and the
trial court complied with Pa.R.A.P. 1925. Cole raises a single issue on appeal:
Whether the trial court erred when it denied [Cole’s] motion for
continuance to acquire legal counsel when [Cole] had neither
effectively waived his right to counsel and his conduct in the case
did not support [a] finding of forfeiture of the right to counsel.
Appellant’s Brief at 7 (unnecessary capitalization omitted).
Cole argues the trial court abused its discretion by denying his motion
for a continuance to obtain counsel.2 He asserts the court improperly denied
the motion based on its erroneous conclusion that he forfeited his right to
counsel by engaging in dilatory conduct. This claim offers Cole no basis for
relief.
____________________________________________
2 Cole does not point to any place in the June 15, 2021 transcript where he
actually moved for a continuance, nor do we see any such request in the
record. However, the court clearly treated the exchange that occurred on June
15, 2021, as an oral motion for a continuance, and we will do the same.
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As Cole acknowledges, it is within a trial court’s discretion to decide
whether to grant or to deny a motion for a continuance, and this Court will
reverse that decision only if we find the trial court abused its discretion. See
Commonwealth v. Ross, 57 A.3d 85, 91 (Pa. Super. 2012). Further, Rule
106(D) of the Rules of Criminal Procedure provides:
A motion for continuance on behalf of the defendant shall be made
not later than 48 hours before the time set for the proceeding. A
later motion shall be entertained only when the opportunity
therefor did not previously exist, or the defendant was not aware
of the grounds for the motion, or the interests of justice require
it.
Pa.R.Crim.P. 106 (D).
Cole does not dispute that he did not request a continuance until the
morning of the trial, nor does he argue that any of the conditions allowing the
court to entertain a motion filed within 48 hours of the proceeding exist here.
Therefore, it was, as the trial court found and the Commonwealth maintains,
well within the discretion of the court to deny a motion for a continuance under
Rule 106(D). See Commonwealth’s Brief at 4 (citing Commonwealth v.
Fisher, 372 A.2d 1, 5 (Pa. Super. 1977) (holding that a request for a
continuance made less than 48 hours prior to trial is at the court’s discretion,
and the trial court in that case did not abuse its discretion by denying the
defendant’s request for a continuance the day after trial began)).
Cole seems to argue, however, that the court abused its discretion
because the denial of his motion for a continuance had the effect of forcing
him to continue to trial pro se, which in turn violated his constitutional right
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to counsel. In making this argument, Cole acknowledges that the right to
counsel is not absolute and may be waived or forfeited. See Commonwealth
v. Lucarelli, 971 A.2d 1173, 1178-1179 (Pa. 2009). As for the latter, he
further acknowledges that a trial court may determine that a defendant has
forfeited his right to counsel and direct the defendant to proceed pro se in
instances where the defendant has engaged in extreme dilatory conduct. See
id. at 1180. Cole admits that while “there is evidence of some dilatory conduct
on [his] part[,]” “the question to be answered is whether he engaged in
conduct that could be considered extremely dilatory.” See Appellant’s Brief at
12, 17.
In essentially answering that question in the affirmative, the trial court
explained that Cole had been given plenty of time to secure counsel prior to
trial, but had failed to do so. The court told Cole as early as October 2020 that
the case was proceeding to trial and he needed to obtain an attorney. Then,
in March 2021, the court specifically instructed Cole that trial was set for, and
would take place on, June 15, 2021. Therefore:
[Cole] was aware of the date of the bench trial for nearly three
months and the charges for almost a year and a half; he should
not be rewarded for his lack of preparation by receiving a
continuance on the day of trial when the Court and
Commonwealth were prepared to move forward.
Trial Court Opinion, 12/29/21, at 4.
In its opinion, the trial court recognized Cole’s assertions on the morning
of trial that he had tried to apply for a public defender and had unsuccessfully
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submitted 15 incomplete applications in those efforts. The court, however,
pointed out that Cole had been unable to provide any evidence of these
applications except the single letter from December 1, 2020. See id. at 3. The
court added that Cole was also unable to demonstrate how he had been filling
out the forms incorrectly or that he had tried to correct whatever deficiencies
had been found in his alleged subsequent applications. See id. at 4. The court
continued:
Additionally, [Cole] was present for a proceeding on October 26,
2020. At that time, [Cole] told the Court that he had submitted
applications for representation, but had not yet been approved.
This Court sent an Assistant Public Defender to check on the status
of [Cole’s] application, and [Cole] was instructed to wait and
speak with her to determine what, if anything, was needed to
complete the application. [Cole] was also notified that his case
would be placed on the trial list, and he would need to obtain
counsel, either through the Public Defender’s Office or private
counsel. Nothing that [Cole] presented exhibited that he took the
necessary steps to follow the instructions of the Court or the Public
Defender’s Office. [Cole] willful[ly] failed to successfully complete
an application for representation.
Id. at 4.
The court also acknowledged that Cole claimed on the morning of trial
that he had obtained private counsel the day before trial. However, as the trial
court observed, there was no evidence the attorney either entered his
appearance or requested a continuance on behalf of Cole. See id.
We see no abuse of discretion in the court’s decision to deny Cole’s
request for a continuance and proceed to trial under these circumstances. We
do not agree with Cole’s assertion that the trial court erred by finding that he
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forfeited his right to counsel by engaging in sufficiently dilatory conduct. Cole
failed to obtain counsel despite having more than enough time to do so, and
despite being advised by the court that he needed to do so. Although Cole
claimed he had made multiple unsuccessful attempts to obtain representation
through the Public Defender’s Office, he was unable to produce any evidence
other than a single letter to support those allegations.
Even had Cole provided evidence of what he classifies as the
“miscommunication” with the Public Defender’s Office, it was incumbent upon
Cole to take the necessary steps to properly complete an application to the
Public Defender’s Office - or seek private counsel - within a reasonable time
of the trial date of which he had been duly notified. Instead, the Chief Public
Defender testified on the morning of trial that his office had received an
application from Cole just the day before, which it denied on the basis that
Cole did not qualify for a public defender. Therefore, it was not until the day
before trial, the date of which Cole had been aware of for months, that Cole
attempted to obtain private counsel. Based on this conduct, we see no error
on the part of the trial court in denying Cole’s motion for a continuance and
proceeding to trial with Cole acting pro se, as he had forfeited his right to
counsel. See Lucarelli, 971 A.2d at 1180 (citing Wilkerson v. Klem, 412
F.3d 449, 454 (3d Cir. 2005) (holding that a defendant who had been duly
notified of the date of his trial and who had been advised to obtain counsel in
sufficient time to be ready for trial, and who appeared on the scheduled date
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without counsel or a reasonable excuse for his failure to have counsel,
forfeited his right to counsel)).
We note that Cole also takes issue with the fact that he never waived
his right to counsel or received a colloquy regarding any such waiver.
However, in cases of forfeiture such as this one, it is not necessary for the
court to conduct a colloquy to ensure the defendant is knowingly and
voluntarily waiving the right to counsel. See Lucarelli, 971 A.2d at 1178.
Accordingly, no relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2022
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