J-S09007-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES ANTHONY GORE
Appellant No. 1103 MDA 2015
Appeal from the Judgment of Sentence May 27, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001756-2014
BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED MARCH 15, 2016
Appellant, James Anthony Gore, appeals pro se from the judgment of
sentence entered after his parole was revoked for, among others,
threatening the life of his parole officer. After careful review, we remand for
a hearing to determine whether Gore has knowingly and intentionally waived
his right to counsel on appeal.
Gore was initially arrested after a Pennsylvania State Trooper observed
him driving erratically on Interstate 83. After pulling Gore over, the Trooper
noticed a strong smell of alcohol coming from Gore, and observed that Gore
was confused and disheveled. After a non-jury trial, the trial court convicted
Gore of driving under the influence and five associated summary offenses,
and imposed a sentence of time served to six months of incarceration.
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Gore was immediately paroled, and shortly thereafter was charged
with violating the terms of his parole. Specifically, his parole officer, Ryan
Laucks, alleged that Gore had failed to report for scheduled appointments,
failed to pay court costs and fines, failed to complete a drug and alcohol
evaluation, and had threatened to “put a warrant out for [Officer Lauck’s]
life.” Gore failed to attend the scheduled hearing on his violations, and a
warrant was issued for his arrest.
Gore was later detained and at the subsequent hearing, he conceded
that he had failed to appear at the appointments, failed to pay costs and
fines, and failed to complete the drug and alcohol evaluation. See N.T.,
5/27/15, at 4-5. His only objection to each of these charges was that the
requirements were “voluntary acts.” See id. The trial court found him in
violation of his parole, and sentenced him to serve the balance of his original
sentence.
Gore subsequently filed a document that the trial court treated as a
motion for reconsideration, which it denied.1 This timely appeal followed. The
trial court ordered Gore to file a statement of matters complained of on
appeal, and Gore filed a document in response. This document is a rambling
diatribe against the trial court, devoid of any rational attempt at forming a
coherent argument. To the best of our ability to discern, it does not appear
____________________________________________
1
Gore’s filing is not included in the certified record before us.
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to argue that he was denied a right to counsel at any stage of this
proceeding. A review of the certified record does not reveal any explicit
waiver of Gore’s right to counsel, although there are several references in
the transcripts that Gore had previously declared an intent to proceed pro
se.
At this juncture, there is no indication that Gore wishes to pursue a
claim that he was denied his right to counsel during the proceedings in the
trial court. However, we note that a court cannot “presume that a waiver of
trial counsel included a waiver of counsel on appeal. [A court is] obliged to
ascertain whether appellant had effectively waived his right to the assistance
of counsel[.]” Com. ex rel. Stanley v. Myers, 228 A.2d 215, 217 (Pa.
Super. 1967).
Moreover, the presumption must always be against the waiver of
a constitutional right. Nor can waiver be presumed where the
record is silent. 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.
Commonwealth v. Houtz, 856 A.2d 119, 122 (Pa. Super. 2004) (citation
omitted). In order to knowingly and voluntarily waive a constitutional right,
a defendant must be aware of the nature of the right and the risk associated
with forfeiting it. See Commonwealth v. Rogal, 120 A.3d 994, 1007 (Pa.
Super. 2015).
Here, there is evidence that Gore had the financial means to retain
private counsel during the entirety of the litigation in the trial court but failed
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to do so. There is also evidence that he wished to proceed pro se during the
trial and subsequent hearings. However, there is no evidence regarding
Gore’s ability to afford counsel after he was incarcerated following the
revocation hearing, and no evidence that he was aware of his right to
counsel on appeal or the risks associated with waiving it. We are therefore
constrained to remand this matter to the trial court for a hearing to
determine whether Gore has knowingly and voluntarily waived his right to
counsel for purposes of appeal.
This hearing must take place within 30 days of remand. At the
conclusion of the hearing, the trial court must make explicit findings
regarding Gore’s ability to pay and whether Gore has knowingly and
voluntarily waived his right to counsel. Within five days of the hearing, the
trial court must inform this Court of these findings by letter. If the trial court
finds that Gore is entitled to counsel on this appeal, all necessary steps
should be taken to ensure that a brief is filed with this Court within 30 days.
Case remanded for proceedings consistent with this memorandum.
Jurisdiction retained.
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