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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
VADIM ILLARIONOV, No. 1838 EDA 2016
Appellant
Appeal from the Judgment of Sentence, April 7, 2016,
in the Court of Common Pleas of Chester County
Criminal Division at No. CP-15-CR-0001209-2015
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 04, 2017
Vadim Illarionov appeals from the judgment of sentence entered on
April 7, 2016, in the Court of Common Pleas of Chester County following his
conviction in a waiver trial of one count of driving under the influence of
alcohol ("DUI").1 Assistant Chester County Public Defender Stephen F.
Delano has filed a petition to withdraw, alleging that the appeal is frivolous,
accompanied by an Anders brief.2 After careful review, we deny counsel's
withdrawal petition, vacate appellant's judgment of sentence, and remand
for a new trial.
1 75 Pa.C.S.A. § 3802(a)(1).
2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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On February 28, 2015, appellant was arrested and charged with DUI.
The record reflects that Attorney Evan Kelly entered his appearance on
appellant's behalf by praecipe docketed on April 14, 2015. On July 2, 2015,
and again on August 14, 2015, the trial court continued appellant's trial
upon motion of defense counsel. The certified record before us is scant, and
it fails to contain defense counsel's motions for continuance.
Additionally, the docket sheet entries indicate that appellant completed
a waiver of counsel colloquy on September 28, 2015. Although the record
contains a written waiver of counsel colloquy that appears to be executed by
appellant and is dated September 28, 2015, this written colloquy bears no
time -stamp. Additionally, the execution line provided for the trial court to
acknowledge its finding that appellant knowingly, intelligently, and
voluntarily waived his right to counsel remains blank. Curiously, the
certified record contains a court order dated September 21, 2015, which was
7 days prior to appellant's alleged written waiver of counsel, in which the
trial court permitted Attorney Kelly to withdraw. The docket sheet entries,
however, fail to reflect that this order was docketed, and the order also
bears no time -stamp. The record further demonstrates that Attorney Kelly
never filed a motion to withdraw. We are, therefore, unable to determine
why the trial court permitted Attorney Kelly to withdraw.
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The record further reflects that on December 15, 2015, appellant
appeared for trial without representation, and the following colloquy took
place:
THE COURT: All right. And Mr. Illarionov, if you
could come up to the podium, please. And would
you state your name.
[APPELLANT]: Vadim Illarionov.
THE COURT: And sir, do you have an attorney?
[APPELLANT]: I do not.
THE COURT: And do you wish to proceed without
an attorney today?
[APPELLANT]: I do.
THE COURT: And do you understand that you have
the right to be represented by an attorney and if you
can't afford one, one would be assigned to represent
you free of charge? Do you understand that?
[APPELLANT]: I do. I tried to get a public attorney,
but based on my wife's income from last year, we
were above poverty level.
THE COURT: So then you do not qualify for free
a
attorney. All right. And I did have you read and fill
out this waiver of counsel colloquy. Do you
remember doing that?
[APPELLANT]: Yes, I do.
THE COURT: All right. And I note that on that, you
had requested stand-by counsel to be appointed.
Unfortunately, since you do not qualify for a free
attorney based on your income, I'm not going to be
appointing stand-by counsel. All right. Do you have
any questions or concerns about that?
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[APPELLANT]: Well, actually, I do. My wife and I
are going through a divorce. So I'm not sure if I
should proceed today because she is not supporting
me anymore. I'm living at a friend's house in
Thorndale, the Coatsville area, since yesterday.
THE COURT: When did you separate?
[APPELLANT]: Well, it would have been -- it's been a
rough ride with separation. We have separated five
times in the last seven years.
THE COURT: Have things changed since you filled
this out back on September 28th, 2015?
[APPELLANT]: Nothing has been filed yet.
THE COURT: All right. What I can do is have you go
up to the Public Defender's Office, explain all of that
to them, see if that makes any difference. But if it
does not, I'm not going to postpone the case. So
would you like to take the time to do that?
[APPELLANT]: No. Actually, I would like to proceed.
THE COURT: Okay. Very good. You can have a
seat there.
Notes of testimony, 12/15/15 at 2-4. The trial court then conducted a
waiver trial. At the close of evidence, the trial court found appellant guilty of
DUI.
The record next reflects that on March 14, 2016, Public Defender
Delano entered his appearance on appellant's behalf. On April 7, 2016, the
trial court sentenced appellant to 5 days to 6 months of imprisonment, a
$1,000 fine plus costs, and 20 hours of community service. On April 18,
2016, appellant filed a post -sentence motion in which he contended that the
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verdict was against the weight of the evidence. The trial court denied the
motion by order dated May 13, 2016.
On June 13, 2016, appellant then filed a timely notice of appeal to this
court. On June 16, 2016, the trial court directed appellant to file a concise
statement of errors complained of on appeal within 21 days. On July 6,
2016, Public Defender Delano filed a statement of intent to file an Anders
brief in lieu of a statement of matters complained of on appeal. Although
the trial court filed a "brief opinion regarding the reasons for [its] rulings," it
erroneously determined that "[d]ue to [appellant's] failure to file and serve
upon this Court a concise statement of matters complained of on appeal as
directed by our Order of June 16, 2016, all allegations of error are deemed
waived [pursuant to] Pa.R.A.P. 1925(b)(4)(vii)." (Trial court opinion,
8/10/16 at 2.) This determination was in error because Rule 1925(c)(4)
permits counsel in a criminal case to serve on the judge a statement of
intent to file an Anders brief in lieu of filing a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(c)(4).
On October 25, 2016, Public Defender Delano filed in this court a
petition to withdraw as counsel and an Anders brief, wherein Public
Defender Delano states that, after a conscientious review of the record, he
determined that an appeal is wholly frivolous.
withdraw pursuant
A request by appointed counsel to
to Anders and Santiago gives rise to certain
requirements and obligations, for both appointed
counsel and this Court. Commonwealth v.
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Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
2015)
These requirements and the significant
protection they provide to an Anders
appellant arise because a criminal
defendant has a constitutional right to a
direct appeal and to counsel on that
appeal. Commonwealth v. Woods,
939 A.2d 896, 898 (Pa.Super. 2007).
This Court has summarized these
requirements as follows:
Direct appeal counsel seeking
to withdraw under Anders
must file a petition averring
that, after a conscientious
examination of the record,
counsel finds the appeal to be
wholly frivolous. Counsel
must also file an Anders brief
setting forth issues that might
arguably support the appeal
along with any other issues
necessary for the effective
appellate presentation
thereof.
Anders counsel must also
provide a copy of the Anders
petition and brief to the
appellant, advising the
appellant of the right to retain
new counsel, proceed pro se
or raise additional points
worthy of the Court's
attention.
Woods, 939 A.2d at 898 (citations
omitted).
There are also requirements as to the
precise content of an Anders brief:
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The Anders brief that
accompanies court -appointed
counsel's petition to withdraw
. . 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, 978 A.2d at 361.
Id. at 1248. If this Court determines that appointed
counsel has met these obligations, it is then our
responsibility "to make a full examination of the
proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous."
Id. at 1248. In so doing, we review not only the
issues identified by appointed counsel in the Anders
brief, but examine all of the proceedings to "make
certain that appointed counsel has not overlooked
the existence of potentially non -frivolous issues."
Id.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).
Our review of Public Defender Delano's application to withdraw,
supporting documentation, and Anders brief reveals that he has complied
with all of the foregoing requirements. We note that counsel also furnished
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a copy of the brief to appellant, advised him of his right to retain new
counsel, proceed pro se, and/or raise any additional issues that he deems
worthy of this court's attention, and attached to the Anders petition a copy
of the letter sent to appellant as required under Commonwealth v.
Millisock, 873 A.2d 748, 751 (Pa.Super. 2005). See Commonwealth v.
Daniels, 999 A.2d 590, 594 (Pa.Super. 2010) ("While the Supreme Court in
Santiago set forth the new requirements for an Anders brief, which are
quoted above, the holding did not abrogate the notice requirements set forth
in Millisock that remain binding legal precedent.").
As Public Defender Delano has complied with all of the requirements
set forth above, we conclude that counsel has satisfied the procedural
requirements of Anders. Once counsel has met his obligations, however, "it
then becomes the responsibility of the reviewing court to make a full
examination of the proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous." Santiago, 978 A.2d
at 355 n.5.
In this case, we need not turn to the merits of the issues appellant
wishes to raise because our independent review of the record reveals that
the trial court violated appellant's right to counsel as provided by the Sixth
Amendment to the United States Constitution and by Article I, Section Nine
of the Pennsylvania Constitution when it tried him pro se after failing to
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conduct an adequate waiver of counsel colloquy and when appellant's waiver
of counsel was equivocal.
"Both the right to counsel and the right to self -representation are
guaranteed by the Sixth Amendment to the United States Constitution and
by Article I, Section Nine of the Pennsylvania Constitution."
Commonwealth v. Payson, 723 A.2d 695, 699 (Pa.Super. 1999).
"Deprivation of these rights can never be harmless." Id. In Payson, this
court instructed that:
An individual may certainly waive a constitutional
right. However, a waiver is only valid if made with
knowledge and intelligence. If we are to uphold such
a waiver, the record must clearly demonstrate an
informed relinquishment of a known right. In order
to make a knowing and intelligent waiver, the
individual must be aware of both the nature of the
right and the risks and consequences of forfeiting it.
Id. at 700 (internal citations omitted).
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. Anything less is not waiver.
Id. (citation omitted).
Our supreme court has held that a trial court must conduct a "probing
colloquy . . . making a searching and formal inquiry" into the following
questions:
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(1) whether the defendant is aware of his right to
counsel or not and (2) whether the defendant is
aware of the consequences of waiving that right or
not. Specifically, the court must inquire whether or
not: (1) the defendant understands that he has the
right to be represented by counsel, and the right to
have free counsel appointed if he is indigent; (2) the
defendant understands the nature of the charges
against him and the elements of each of those
charges; (3) the defendant is aware of the
permissible range of sentences and/or fines for the
offenses charged; (4) the defendant understands
that if he waives the right to counsel he will still be
bound by all the normal rules of procedure and that
counsel would be familiar with these rules; (5) [the]
defendant understands that there are possible
defenses to these charges which counsel might be
aware of, and if these defenses are not raised at
trial, they may be lost permanently; and (6) 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, the objection to
these errors may be lost permanently.
Commonwealth v. Lasko, 14 A.3d 168, 173 (Pa.Super. 2011) (citation
omitted; brackets in original).
Our state and federal constitutions guarantee both the right to counsel
and the right to self -representation. Faretta v. California, 422 U.S. 806,
821 (1975) (implicit in the structure of the Sixth Amendment is the right of
a criminally accused to conduct his own defense); Commonwealth v.
Szuchon, 484 A.2d 1365, 1376-1377 (Pa. 1984) (an accused has a right to
conduct his own defense pursuant to Article 1, Section 9 of the Pennsylvania
Constitution). "[I]n order to invoke the right of self[ -]representation, the
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request to proceed pro se must be made timely and not for purposes of
delay and must be clear and unequivocal." Commonwealth v. Davido,
868 A.2d 431, 438 (Pa. 2005). In considering whether such a request is
unequivocal, we consider "a myriad of factors[,]" including, but not limited
to, whether the request was for hybrid representation or merely for the
appointment of standby or advisory counsel; the trial court's response to a
request; whether a defendant has consistently vacillated in his request; and
whether a request is the result of an emotional outburst. Id. at 439. "[T]he
inquiry surrounding whether a request to proceed pro se is unequivocal is
fact intensive and should be based on the totality of the circumstances
surrounding the request." Id.
Here, even assuming that the written colloquy contained in the
certified record before us lacked deficiencies, our supreme court has held
that a written waiver, without more, is not sufficient to establish a knowing
and intelligent waiver of counsel. Lasko, 14 A.3d at 173 (citation omitted).
Additionally, this court has held that the trial court must conduct a
"penetrating and comprehensive" colloquy on -the -record. Id. (citation
omitted). Accordingly, we examine the oral colloquy to determine whether it
was constitutionally sufficient. We also consider the record as a whole to
determine, based upon the totality of the circumstances, whether appellant
unequivocally waived his right to counsel.
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Here, it is clear that the oral colloquy conducted was not adequate.
The trial court failed to inquire as to: (1) whether appellant understood the
nature of the charges against him and the elements of the charges;
(2) whether appellant was aware of the permissible range of sentences
and/or fines for the offenses charged; (3) whether appellant understood that
if he waived the right to counsel, he would still be bound by all normal rules
of procedure and that counsel would be familiar with these rules;
(4) whether appellant understood that there were possible defenses to the
charges that counsel might be aware of, and that if these defenses were not
raised at trial, they may be lost permanently; (5) whether appellant
understood that, in addition to defenses, he had many rights that, if not
timely asserted, may be permanently lost; and (6) whether appellant
understood that if errors occurred and were not timely objected to, or
otherwise timely raised by appellant, these errors could be permanently lost.
Moreover, the totality of circumstances present in this case
demonstrates that appellant's waiver of counsel was equivocal. In response
to the trial court's inquiry as to whether appellant had any concerns,
appellant stated, "actually, I do." (Notes of testimony, 12/15/15 at 3.)
Appellant then stated that he was "not sure if [he] should proceed today"
and attempted to explain his reduced income and inability to afford counsel
in light of his separation from his wife. (Id. at 3-4.) The trial court,
however, did not permit appellant to explain his financial situation, but,
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rather, informed appellant that he could, at that point in the proceedings, go
to the public defender's office and explain, but if that did not make a
difference, the trial court would not postpone the case. (Id. at 4.) It then
asked appellant if he would "like to take the time to do that." (Id.) It was
then that appellant elected to proceed pro se. (Id.) Additionally, appellant
is represented by an assistant public defender in this appeal; albeit, he is
seeking to withdraw.
Given these considerations, it is abundantly clear that appellant's
waiver of counsel was equivocal and that the waiver of counsel colloquy was
fatally deficient in fulfilling the requirements set forth by the Pennsylvania
Supreme Court. In such circumstances, there are no assurances that
appellant knowingly, voluntarily, and intelligently waived his right to counsel.
Accordingly, we vacate appellant's judgment of sentence and remand the
case for a new trial. Given our disposition in this matter, we need not
address the claims appellant raised for our review. We do note, however,
that our review of the record raises concerns that implicate Birchfield v.
North Dakota, U.S. , 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016).
Petition to withdraw denied; judgment of sentence vacated; case
remanded for a new trial. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 4/4/2017
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