J-S72005-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.*
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 06, 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).1
For the following reasons, we remand the matter with instructions and
relinquish jurisdiction.
The relevant facts and procedural history of this case are as follows.
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
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1
35 P.S. § 780-113(a)(16).
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*Retired Senior Judge assigned to the Superior Court.
J-S72005-16
Commonwealth charged Appellant with possession of a controlled substance
with the intent to deliver 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 Appellant’s complaints that he could no longer
afford private counsel. The court granted counsel’s motion 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. On April 7, 2015, the court appointed conflict
counsel. Conflict counsel later 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, and was
convicted of simple possession on October 26, 2015. On December 11,
2015, the court sentenced Appellant to 6-23 months’ imprisonment. After
sentencing, 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) statement, which
Appellant timely filed pro se on January 27, 2016. Appellant filed an
untimely post-sentence motion to reduce his sentence on February 5, 2016,
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which the court denied on February 11, 2016, for lack of jurisdiction due to
the pending appeal.
On February 24, 2016, Appellant filed a pro se motion in the trial court
requesting appointment of counsel for his appeal, claiming he could not
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 Appellant to seek relief in the
trial court. Appellant filed another motion in the trial court for appointment
of counsel on May 18, 2016; the court did not rule on that motion either. In
light of Appellant’s allegations of indigency and repeated requests for
counsel, on September 19, 2016, this Court remanded the matter to
determine indigency status and/or consider the appointment of counsel in
the interests of justice. Upon remand, the trial court scheduled a hearing for
October 5, 2016. On October 11, 2016, the trial court notified this Court
that it was unable to assess Appellant’s indigency status because Appellant
failed to appear at the hearing. The record shows the court sent notice of
the hearing to an address where Appellant no longer resides.2
As a preliminary matter, Pennsylvania Rule of Criminal Procedure 122
provides:
Rule 122. Appointment of Counsel
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2
In a separate motion filed in this Court on October 27, 2016, Appellant
explained why he did not receive notice of the hearing and failed to attend.
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(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; Commonwealth v. Cannon, 954
A.2d 1222 (Pa.Super. 2008), appeal denied, 600 Pa. 743, 964 A.2d 893
(2009) (explaining Rule 122 authorizes court to conduct case-by-case
evaluations of individual defendants’ circumstances to ascertain whether
counsel should be appointed).
Instantly, given the significant rights at issue, and in the interests of
justice, we decline to proceed with the pro se appeal. The better resolution
at this point is to remand this case to the trial court for appointment of
counsel within ten (10) days to communicate with Appellant about the
issue(s) he wants to pursue on appeal. Because Appellant appears to seek,
inter alia, reconsideration of his sentence, appointed counsel must file post-
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sentence motions nunc pro tunc within ten (10) days of counsel’s
appointment, to preserve Appellant’s sentencing challenge and to restore his
appellate rights. Following disposition of the post-sentence motions nunc
pro tunc, either party can file a timely appeal. Counsel must also verify
Appellant’s current mailing address and confirm the court has the correct
address on file.
Case remanded with instructions. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/6/2016
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