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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DEATHRICE DWAYNE GRAY
Appellant No. 41 MDA 2016
Appeal from the Judgment of Sentence December 11, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001900-2014
BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*
JUDGMENT ORDER BY GANTMAN, P.J.: FILED SEPTEMBER 19, 2016
Appellant, Deathrice Dwayne Gray, appeals pro se from the judgment
of sentence entered in the Luzerne County Court of Common Pleas, following
his bench trial conviction for possession of a controlled substance (heroin)
(35 P.S. § 780-113(a)(16)). On February 12, 2014, police executed a
search warrant at a residence in Hazleton, Pennsylvania. Police discovered
money, drugs, and drug paraphernalia in the residence in close proximity to
Appellant. The Commonwealth charged Appellant with possession of a
controlled substance with the intent to deliver (“PWID”) and simple
possession. Appellant initially retained private counsel to defend against the
charges. Private counsel filed a motion to withdraw on November 24, 2014,
claiming Appellant had not honored their fee agreement and citing
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*Retired Senior Judge assigned to the Superior Court.
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Appellant’s complaints that he could no longer afford private counsel. The
court granted counsel’s motion to withdraw and directed Appellant to apply
for representation with the Public Defender’s Office. Appellant complied and
obtained representation from the Public Defender. Several months later,
however, the Public Defender sought to withdraw due to a conflict of
interest. Consequently, on April 7, 2015, the court appointed conflict
counsel. Conflict counsel subsequently withdrew his appearance citing a
breakdown in the attorney/client relationship. According to Appellant,
conflict counsel failed to communicate with him; so, Appellant borrowed
money from family and friends to retain private counsel for trial.
Appellant proceeded to a bench trial on October 23, 2015. The court
convicted Appellant of simple possession on October 26, 2015. On
December 11, 2015, the court sentenced Appellant to 6-23 months’
imprisonment. At the conclusion of the sentencing hearing, the court
permitted counsel to withdraw. Appellant timely filed a pro se notice of
appeal on December 24, 2015. On January 20, 2016, the court ordered
Appellant to file a Pa.R.A.P. 1925(b) concise statement, which Appellant
timely filed pro se on January 27, 2016. On February 24, 2016, Appellant
filed a pro se motion in the trial court requesting appointment of counsel for
appeal and claiming he cannot afford counsel. The court did not rule on the
motion. On April 21, 2016, Appellant filed an application for appointment of
counsel in this Court, which this Court denied without prejudice, directing
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Appellant to seek relief in the trial court.1
Pennsylvania Rule of Criminal Procedure 122 provides:
Rule 122. Appointment of Counsel
(A) Counsel shall be appointed:
* * *
(2) in all court cases, prior to the preliminary hearing
to all defendants who are without financial resources or
who are otherwise unable to employ counsel;
(3) in all cases, by the court, on its own motion, when
the interests of justice require it.
(B) When counsel is appointed,
* * *
(2) the appointment shall be effective until final
judgment, including any proceedings upon direct appeal.
Pa.R.Crim.P. 122(A), (B). Under paragraph (A)(3), the court has authority
to appoint counsel regardless of eligibility when the interests of justice
require it. Pa.R.Crim.P. 122, Comment. Rule 122 “authorizes the court to
conduct case-by-case evaluations of individual defendants’ circumstances in
order to ascertain whether counsel should be appointed.” Commonwealth
v. Cannon, 954 A.2d 1222, 1227 (Pa.Super. 2008), appeal denied, 600 Pa.
743, 964 A.2d 893 (2009) (internal citation omitted). Instantly, the record
shows Appellant had the benefit of court-appointed counsel during some
earlier proceedings. Although Appellant borrowed money from family and
friends to hire private counsel for trial, Appellant complains he no longer has
the resources to secure counsel for this appeal. In light of Appellant’s
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1
The Commonwealth indicates that Appellant filed another motion in the
trial court for appointment of counsel on May 18, 2016.
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allegations of indigency and repeated requests for counsel, we remand for a
determination of Appellant’s indigency status and consideration of the
appointment of counsel in accordance with Rule 122. See Pa.R.Crim.P. 122;
Cannon, supra. If the court determines Appellant is entitled to counsel, the
court shall appoint counsel; and appointed counsel must file a Rule 1925(b)
statement on Appellant’s behalf. The court can issue a supplemental Rule
1925(a) opinion, and the parties shall have the opportunity to file new
appellate briefs. If the court is convinced Appellant is not entitled to counsel
under Rule 122(A)(2) or (A)(3), then the appeal will proceed pro se. The
trial court shall notify this Court of its decision within 30 days.
Case remanded with instructions. Panel jurisdiction is retained.
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