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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ERIC JOHN LESLIE, : No. 709 WDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, December 8, 2014,
in the Court of Common Pleas of Elk County
Criminal Division at No. CP-24-CR-0000278-2014
BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ.
JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.: FILED APRIL 15, 2016
Eric John Leslie appeals from the December 8, 2014 judgment of
sentence of the Court of Common Pleas of Elk County denying his post-trial
motion and motion to modify sentence. We remand to the trial court in
order to determine whether appellant’s waiver of his right to counsel was a
knowing, intelligent, and voluntary decision.
The trial court provided the following relevant procedural history:
By criminal complaint filed June 9, 2014,
[appellant] was charged with burglary, 18 Pa.C.S.A.
[§] 3502(a)(2), a felony of the first degree; theft by
unlawful taking or disposition, 18 Pa.C.S.A.
[§] 3921(a), a felony of the second degree; and
receiving stolen property, 18 Pa.C.S.A.
[§] [3925(a)], a felony of the second degree. All of
the charges were filed as a result of an incident on
June 2, 2014, at the residence of Lori Dowie at [],
Fox Township, Elk County, Pennsylvania.
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After his arrest and preliminary arraignment,
[appellant] retained Attorney Jeffrey S. DuBois. . . .
[Appellant] [] appeared before the Court on
December 8, 2014, at which time a negotiated
disposition was presented to the Court. As a result,
[appellant] entered a guilty plea to burglary and was
sentenced to a period of incarceration of not less
than 36 months nor more than 72 months at the
State Diagnostic and Classification Center at
Pittsburgh, with a time-served credit of 76 days.
The December 8, 2014 sentencing order was
docketed on December 12, 2014, and thereafter
[appellant] filed a timely post-sentence motion on
December 19, 2014, sounding primarily in claims
which asserted that his attorney was ineffective and
that a presentence investigation report was
mandated.
....
At the time of the February 23, 2015 hearing,
the testimony of Attorney Jeffrey DuBois and
[appellant’s] mother, Debra Jean Leslie, was
presented and documentary evidence was
introduced. Pre- and post-hearing memorand[a]
were also submitted or filed. On April 17, 2015, this
Court entered a discussion and its order by which
[appellant’s] post-sentence motion was denied. On
May 1, 2015, [appellant] filed the pending timely
notice of appeal and thereafter filed a statement of
concise matters complained of on appeal.[1]
Trial court opinion, 9/3/15 at 1-2 (citations omitted).
During the February 23, 2015 hearing on appellant’s post-sentence
motion, the trial court granted Attorney DuBois’s oral motion to withdraw as
appellant’s counsel. (See notes of testimony, 2/23/15 at 32.) Appellant
represented himself throughout the duration of the hearing.
1
See Pa.R.A.P. 1925(b).
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Before we can consider the merits of the six issues appellant raises for
our review, we must first consider whether appellant’s waiver of his right to
counsel was proper. “When a waiver of the right to counsel is sought at the
post-conviction and appellate stages, an on-the-record determination should
be made that the waiver is a knowing, intelligent, and voluntary one.”
Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998).
In the case at bar, the record indicates that appellant filed a
post-sentence motion pro se and entered the February 23, 2015
post-sentence motion hearing under the impression that Attorney DuBois
had withdrawn from the case. (Notes of testimony, 2/23/15 at 31.) The
record, however, does not indicate that the trial court, when it granted
Attorney DuBois’s motion to withdraw, conducted a colloquy with appellant
in order to make a determination on the record that appellant’s decision to
waive his right to counsel and proceed with his post-sentence motion pro se
was a knowing, intelligent, and voluntary decision pursuant to Grazier. We,
therefore, remand to the trial court so that such a determination can be
made.
Case remanded. Jurisdiction retained.
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