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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
SHAWN N. WEBB,
Appellant No. 1831 EDA 2012
Appeal from the Judgment of Sentence May 24, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013009-2011
BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED MARCH 18, 2015
Shawn N. Webb appeals from the judgment of sentence of fifteen days
to six months imprisonment after the trial court adjudicated Appellant guilty
of driving under the influence of alcohol, general impairment, with refusal of
a blood alcohol content (“BAC”) test. Appellate counsel has filed a petition
seeking to withdraw his representation and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009), which govern a withdrawal from representation on
direct appeal. We conclude that, contrary to counsel’s assessment, the
certified record establishes that Appellant did not validly waive his right to
counsel at trial and is entitled to relief. We therefore reverse and remand
for a new trial.
*
Former Justice specially assigned to the Superior Court.
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At approximately 2:45 a.m. on August 3, 2010, Philadelphia Police
Officer Stacy Little observed Appellant’s vehicle traveling in the wrong
direction down a one-way street, Church Lane. When Officer Little
effectuated a stop and approached his vehicle, she detected a strong odor of
alcohol on Appellant’s breath. Appellant’s clothing was in disarray, and his
eyes were bloodshot. When asked for his license, registration, and
insurance card, Appellant appeared to be in a stupor, had difficultly
complying with the demand, and did not understand simple requests.
Appellant, who also slurred his speech and had an unsteady gait, was
arrested for DUI, and, after being given the appropriate warnings,
subsequently refused BAC testing. A police witness opined that Appellant
was sufficiently intoxicated that he was incapable of safely operating a motor
vehicle. Based on this proof, Appellant was found guilty of driving under the
influence of alcohol, incapable of safely driving, and refusing a BAC test.
This appeal followed imposition of the above-delineated judgment of
sentence.
Before we address the questions raised on appeal, we first must
resolve appellate counsel’s request to withdraw. Commonwealth v.
Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc). There are procedural
and briefing requirements imposed upon an attorney who seeks to withdraw
on appeal. The procedural mandates are that counsel must
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1) petition the court for leave to withdraw stating that,
after making a conscientious examination of the record, counsel
has determined that the appeal would be frivolous; 2) furnish a
copy of the brief to the defendant; and 3) advise the defendant
that he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court's attention.
Id. at 1032 (citation omitted).
Our review of counsel’s petition to withdraw reveals that it is compliant
with these directives. Additionally, counsel attached a copy of a letter sent
to Appellant wherein counsel advised Appellant of his right to proceed pro se
or with retained counsel and which operated as a cover letter for the brief
filed in the within appeal. Since we have ascertained that counsel complied
with the procedural requirements of Anders, we now consider whether his
brief satisfies the mandates of Santiago. In that decision, our Supreme
Court outlined that
in the Anders brief that accompanies court-appointed counsel's
petition to withdraw, counsel must: (1) provide a summary of
the procedural history and facts, with citations to the record; (2)
refer to anything in the record that counsel believes arguably
supports the appeal; (3) set forth counsel's conclusion that the
appeal is frivolous; and (4) state counsel's reasons for
concluding that the appeal is frivolous. Counsel should articulate
the relevant facts of record, controlling case law, and/or statutes
on point that have led to the conclusion that the appeal is
frivolous.
Santiago, supra at 361.
In the brief at issue herein, counsel attempts to comply with
Santiago. However, he incorrectly analyzes the first of two issues
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presented in that document. Specifically, counsel asserts that he identified
two contentions that Appellant potentially could raise on appeal. First, “Did
the trial court err in allowing [Appellant] to proceed to trial while
representing himself?” Appellant’s brief at 10. Second, “Was [Appellant]
denied his right to a trial by jury.” Id. at 12.
While counsel suggests that Appellant’s waiver of counsel was sound,
we disagree. In his brief, counsel fails to outline either the content of the
colloquy or the areas of inquiry set forth in Pa.R.Crim.P. 121, which governs
waiver-of-counsel proceedings. A comparison of the colloquy herein with the
requirements of Pa.R.Crim. 121 reveals that the waiver was invalid. The
pertinent law follows.
The Pennsylvania Supreme Court has stated, "The waiver of the right
to counsel must appear from the record to be a knowing and intelligent
decision made with full understanding of the consequences."
Commonwealth v. Szuchon, 484 A.2d 1365, 1377 (Pa. 1984). In Von
Moltke v. Gillies, 332 U.S. 708, 724 (1948), the United States Supreme
Court provided guidance as to the minimum information to be disseminated
to the defendant:
To be valid . . . waiver [of the right to counsel] must be made
with an apprehension of the nature of the charges, the statutory
offenses included within them, the range of allowable
punishments thereunder, possible defenses to the charges and
circumstances in mitigation thereof, and all other facts essential
to a broad understanding of the whole matter. A judge can
make certain that an accused's professed waiver of counsel is
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understandingly and wisely made only from a penetrating and
comprehensive examination of all the circumstances under which
such a plea is tendered.
In accordance with these principles, Pa.R.Crim. P. 121 outlines the
areas that must be covered to ensure a valid waiver of the right to counsel:
(A)(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
(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.
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Pa.R.Crim.P. 121 (A)(2).
Additionally, “a waiver colloquy must, of course, always contain a clear
demonstration of the defendant’s ability to understand the questions posed
to him during the colloquy.” Commonwealth v. McDonough, 812 A.2d
504, 507 n.1 (Pa. 2002). We also observe that our High Court has indicated
that it is incumbent upon the trial court to ensure that it conducts the proper
colloquy once a defendant seeks to represent himself. Commonwealth v.
Davido, 868 A.2d 431 (Pa. 2005). The Davido Court outlined:
In Commonwealth v. McDonough, 571 Pa. 232, 812 A.2d 504
(2002), this court considered whether the prosecutor could
“colloquy” a defendant consistent with Rule 121. We
acknowledged that a defendant had the right to represent
himself at trial. McDonough, 812 A.2d at 506 (citing Faretta v.
California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562
(1975)). We then made clear that when a defendant desired to
represent himself, “he must petition the court and the court
must follow the appropriate legal procedure for securing a valid
waiver of counsel.” Id. Rule 121 provided the appropriate legal
procedure and could be complied with by the prosecutor's
colloquy so long as the prosecutor inquired into the six areas set
forth by the Comments to Rule 121 before the trial judge.
McDonough, 812 A.2d at 506-07. In this way, the trial judge
could ascertain on the record whether there was a knowing,
voluntary, and intelligent waiver of counsel. Id. at 508. We
stressed, however, that it was the trial judge who was
“ultimately responsible for ensuring that the defendant is
questioned about the six areas discussed above and for
determining whether the defendant is indeed making an
informed and independent decision to waive counsel.” Id.
Likewise, we held that it was the “trial judge” that had the duty
to ensure that a defendant's right to counsel was protected. Id.
Thus, we conclude that, consistent with McDonough, the
Rules of Criminal Procedure are clear that it is up to the
trial court, and not counsel, to ensure that a colloquy is
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performed if the defendant has invoked his right to self
representation.
Id. at 437-38 (footnote omitted; emphasis added). Thus, the failure to
object at the trial level to a deficient waiver colloquy is not fatal to appellate
review.1
The following facts are relevant. Appellant was appointed counsel,
Stephen J. Fleury Jr., from the Defender Association of Philadelphia. At the
inception of trial, Mr. Fleury reported that Appellant told him that he “does
not wish my services.” N.T. Trial (Waiver), 5/24/12, at 3. Appellant
confirmed that he wanted to represent himself. The Court queried, “Did Mr.
Fleury discuss with you the problems and the possible pitfalls you face if you
do that?” Id. at 4. Appellant answered, “No, he didn’t.” Id.
The trial court first determined that Appellant was capable of
understanding the proceedings. It ascertained that Appellant was forty-
eight years old, had attended some college, could read and write English,
was not under the influence of drugs or alcohol, was never treated for
mental illness, and was not receiving psychiatric care. Id. at 6-8. Next, the
trial court informed Appellant that he had the right to court-appointed
counsel:
THE COURT: Do you understand you have a right to be
represented by counsel in this hearing?
1
In light of this precedent, the trial court’s observation that Appellant’s
counsel did not object to the sufficiency of the waiver colloquy is inapt.
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....
THE DEFENDANT: Yes.
THE COURT: Okay. And if you cannot afford a lawyer counsel
would be appointed for you. Do you understand that?
THE DEFENDANT: Somewhat, yes.
THE COURT: What do you mean somewhat? You either
understand or you don’t understand.
THE DEFENDANT: I mean, you [are] saying that they would be
appointed for me?
THE COURT: That’s Mr. Fleury sitting next to you.
THE DEFENDANT: Yes. I don’t want to have him. I’m saying I
don’t want somebody to be appointed for me.
THE COURT: All right. But you understand that if you couldn’t
afford a lawyer the Court would appointment [sic] a lawyer to
represent you. Do you understand that?
THE DEFENDANT: Yes.
Id. at 8-9. Then, the court stated, “Sir, if you decide to proceed without
counsel, do you understand that you will be bound by all normal rules and
procedures for a trial such as this? Do you understand that?” Id. at 9.
Appellant represented that he understood that information. Id. at 10.
The court informed Appellant next that there were “certain advantages
to being represented by counsel and those advantages are having a
professional who has had years of experience with trials such as this and
having a professional argue the law and evidence both orally and in written
memorandums [sic].” Id. at 11. Appellant said that he understood that
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there was an advantage to having a lawyer represent him and that “by
proceeding without counsel,” he would relinquish those advantages. Id.
The court also asked, “Do you understand that if an issue is not raised
during this trial or if it is not raised in a proper manner it may be waived and
you may not ever be able to raise it again?” as well as, “And you understand
that you are stuck with whatever mistakes you make while you’re
representing yourself.” Id. at 12. Appellant responded that he understood.
Finally, the court ascertained that no one was forcing or threatening
Appellant to relinquish his right to be represented by Mr. Fleury and that
nothing was promised to him in exchange for his waiver of counsel. The
colloquy concluded.
Thus, the record reveals that the trial court properly determined that
Appellant was able to understand the questions posed to him during the
colloquy. The record also demonstrates that, as required by Pa.R.Crim.P.
121(A)(2)(a), Appellant was told that he possessed the right to be
represented by court-appointed counsel. Additionally, the trial court, as
required by Pa.R.Crim.P. 121(A)(2)(d), clarified to Appellant that he would
be bound by all the normal rules of procedure and that counsel would be
familiar with these rules.
However, the court only tangentially touched on the subject matter
outlined in 121(A)(2)(e) and (f). The court did explain that Appellant could
waive issues and would be bound by his own missteps, but the court failed
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to specify that there were possible defenses to the charges, of which counsel
might be aware, and that those defenses would be permanently lost if not
raised at trial. Similarly, it did not set forth that, in addition to defenses,
Appellant had many rights that, if not timely asserted, might be permanently
lost. Finally, the court did not comply to any extent with Pa.R.Crim.P.
121(A)(2)(b) and (c) in that it did not discover either if Appellant understood
the nature and elements of the charges or if Appellant was aware of the
permissible range of sentences and/or fines.
We recently addressed whether a waiver of counsel was valid in
Commonwealth v. Phillips, 93 A.3d 847 (Pa.Super. 2014). Therein, the
defendant was appointed counsel and, after becoming dissatisfied with his
representation, asked to proceed pro se. The defendant was colloquied
three times: at the hearing on his motion to proceed pro se, before his
suppression hearing, and at trial just prior to jury selection. During the first
colloquy, the court neither outlined the elements of the crimes nor informed
the defendant that there were certain defenses that would be lost if not
raised. At the second colloquy, the court merely told the defendant that if
he waived counsel, he would still be bound by all the applicable rules of
procedure, with which counsel would be familiar. Finally, at the trial
colloquy, the court did not ensure that the defendant understood the
permissible range of sentences for the charged offenses. In all three
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instances, each court neglected to ascertain the defendant’s age, educational
background, or comprehension abilities.
We held, “Failure to conduct a thorough on-the-record colloquy before
allowing a defendant to proceed to trial pro se constitutes reversible error.”
Id. at 853. We noted that, in this context, we are not permitted to apply a
totality of the circumstances analysis. We ruled that since the oral
colloquies in question were all inadequate in some respect, the defendant did
not validly waive counsel, and his convictions had to be reversed.
Likewise, in Commonwealth v. Clyburn, 42 A.3d 296 (Pa.Super.
2012), we reversed and remanded for a new trial where the trial court did
not conduct a Pa.R.Crim.P. 121-compliant colloquy before allowing the
defendant to proceed pro se. Therein, the defendant signed a written form
examining most areas that must be covered under the law, but it did not
outline the nature and elements of each offense charged against the
defendant. The same deficit occurred during the oral colloquy, where the
crimes were merely listed and the focus was on the grading and range of
sentences. Since neither the written form nor oral colloquy apprised the
defendant of the nature and elements of each charge leveled against her, we
concluded that the waiver colloquy was defective. See also
Commonwealth v. Payson, 723 A.2d 695, 701 (Pa.Super. 1999) (“The law
is now clear that the trial judge must conduct the colloquy [required by the
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rules of criminal procedure] and in doing so must formally question the
defendant on the six listed areas.”).
In this case, the colloquy completely omitted two areas of inquiry: an
explanation of the nature and elements of the crime and the permissible
range of sentences. The trial court also failed to fully cover the waiver
problem involved with self-representation. Appellant never was told that, by
proceeding pro se, he could forfeit defenses and rights about which his
lawyer would be versed. Hence, counsel on appeal has incorrectly asserted
that Appellant validly waived his right to counsel at trial and cannot be
permitted to withdraw.
Since Appellant is unequivocally entitled to relief, it is unnecessary to
remand for the filing of a merits brief. To do so would merely delay this
matter further. Instead, we vacate the judgment of sentence and remand
for a new trial. Commonwealth v. Goodenow, 741 A.2d 783,
788 (Pa.Super. 1999) (counsel seeking to withdraw under Anders
incorrectly asserted that defendant had no grounds to withdraw guilty plea;
presentence request to withdraw guilty plea should have been granted under
controlling case law; rather than require counsel to file a merits brief, we
vacated defendant’s judgment of sentence and remanded for appointment of
new counsel).
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The Petition to Withdraw filed by Owen W. Larrabee, Esquire is denied.
Judgment of sentence reversed. Case remanded for a new trial. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/18/2015
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