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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
BRIAN TURNER
Appellant : No. 364 EDA 2018
Appeal from the Judgment of Sentence December 20, 2017
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0002115-2017
BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 07, 2019
Brian Turner appeals from the judgment of sentence entered following
his convictions for driving under the influence of alcohol ("DUI"), driving while
operating privilege suspended or revoked, and failure to use hazard warning
signals.' Turner argues the court violated his constitutional right to counsel.
We vacate the judgment of sentence and remand for a new trial.
The facts underlying the charges are not relevant to our disposition. In
short, Pennsylvania State Trooper Michael Hodgskin discovered Turner on
February 5, 2017, asleep in his car on the side of the road around 4 a.m. After
rousing Turner, having Turner perform field sobriety tests, and attempting to
have him perform a breathalyzer test, Officer Hodgskin arrested Turner for
1- See 75 Pa.C.S.A. §§ 3802(a)(1), 1543(a), and 4305, respectively.
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DUI. Turner's license was suspended at the time of his arrest. See N.T.,
12/5/17, 5-19.
Officer Hodgskin filed a criminal complaint against Turner, and in June
2017, Turner appeared in magisterial district court. He signed forms waiving
his right to counsel in that court and waiving a preliminary hearing.
Turner's first appearance before the trial court was at his formal
arraignment on October 12, 2017. Turner told the court that he was
represented by an attorney in Harrisburg. N.T., 10/12/17, at 2-3. Turner
acknowledged that the attorney had not entered his appearance, but stated
that it was because the attorney had been on vacation. Id. Turner said that
an unidentified person in the courthouse had advised him to "just come here
today and plead not guilty or whatever and make sure I'm here with [the
attorney]" on the trial date. Id. at 3. The trial judge replied, "I'm going to
mark on this list that you don't have an attorney because he hasn't formally
entered his appearance. . . . Until he does, the notices are going to go to you."
Id. at 3-4. The court did not offer Turner court -appointed counsel, conduct a
waiver colloquy, or warn him that appearing without counsel in the future
risked forfeiture of his right to counsel.
Turner appeared before a different judge in December 2017, for a
pretrial conference. No attorney appeared at the conference on Turner's
behalf. The prosecutor introduced Turner to the court as "a pro se individual."
N.T., 12/4/17, at 2 (italics added). Turner did not say otherwise, and the court
did not inquire into the status of Turner's representation or conduct a waiver
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colloquy. Nor did Turner ask for a continuance so retained counsel could
attend. The court proceeded with the pretrial conference, noting that Turner
was charged with a first offense DUI of general impairment and faced a
sentence of six -months' probation. Id. at 2-4. Turner entered a plea of not
guilty. Id. at 4-5. The court set trial for the following day. Id. at 5.
The next day, Turner appeared for trial unrepresented by counsel and
the trial began before the same judge as had presided at the pretrial
conference. The judge again did not offer Turner court -appointed counsel,
inquire into the status of Turner's representation, or conduct a waiver
colloquy. Nor was there any discussion of whether Turner had forfeited his
right to counsel.
A bench trial then ensued with Turner representing himself. When the
Commonwealth moved to admit a video of the incident into evidence, Turner
objected that he had not been given a chance to view the video before trial.
Id. at 34-37. The prosecutor responded that Turner had not asked to see it
and that if he had done so, the Commonwealth would have made a copy
available. Id. at 35-36. Turner argued that the court had scheduled the trial
the day beforehand, and as a layperson, he should have been advised at the
pretrial conference that video evidence existed. Id. at 36. The court overruled
Turner's objection, stating, "Because you are not represented by a lawyer in
this matter, that's your choice. That has nothing to do with the
Commonwealth's obligation." Id. at 37. Turner presented no evidence in his
defense, but argued his innocence.
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The court found Turner guilty, and later sentenced him to a total of 3
days to 6 months in jail.2 Turner, still acting pro se, obtained leave from the
trial court to file a notice of appeal nunc pro tunc, and then filed this appeal.
Appellate counsel then entered his appearance.
Turner, represented by private counsel on appeal, raises the following:
I. Whether [Turner] was denied his right to counsel as
guaranteed under the Sixth Amendment to the Constitution
of the United States and by Article 1 § 9 of the Pennsylvania
Constitution when the trial court proceeded to try [Turner]
as a pro se defendant after he informed the court he had
consulted with legal counsel?
II. Whether [Turner] waived his right to trial counsel when he
did not knowingly, intelligently, or voluntarily do so?
III. Whether [Turner] was denied his right to counsel as
guaranteed under the Sixth Amendment to the constitution
of the United States and Article 1 § 9 of the Pennsylvania
Constitution and/or [Turner's] due process rights were
violated where the trial court failed to conduct an on -the -
record colloquy to determine whether [Turner] was
knowingly, intelligently, and voluntarily waiving his right to
counsel at trial?
Turner's Br. at 4-5 (suggested answers and answers below omitted). Although
Turner presents his question in three parts, he presents a singular argument:
that the trial court erred in trying him pro se without conducting a colloquy to
2 But see Commonwealth v. Giron, 155 A.3d 635, 640 (Pa.Super. 2017)
(holding enhanced penalties based on refusal of blood testing are
unconstitutional).
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ensure that Turner knowingly, intelligently, and voluntarily waived his right to
counsel. See Turner's Br. at 9-13.3
The United States and Pennsylvania Constitutions provide a right to
counsel for any criminal defendant facing a sentence of imprisonment. See
Commonwealth v. Moody, 125 A.3d 1, 14 (Pa. 2015);4 see also
Pa.R.Crim.P. 122, Comment. It is the responsibility of a trial court to
determine whether a criminal defendant has waived his or her right to counsel
knowingly, intelligently, and voluntarily. See Pa.R.Crim.P. 121(C);
Commonwealth v. Davido, 868 A.2d 431, 437-38 (Pa. 2005). Because we
presume against the waiver of a constitutional right, we do not find waiver
where the record is silent. Commonwealth v. Phillips, 141 A.3d 512, 517
(Pa.Super.) (citing Commonwealth v. Monica, 597 A.2d 600, 603 (Pa.
1991)). "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. (quoting
Monica, 597 A.2d at 603).
3 The trial court entered a statement pursuant to Rule 1925(a) of the
Pennsylvania Rules of Appellate Procedure, stating that the court would rely
on the record instead of filing an opinion. However, the court's reasoning does
"not already appear of record," and the court failed to "specify in writing the
place in the record where [the] reasons [for the order or the rulings or other
errors complained of] may be found." Pa.R.A.P. 1925(a)(1).
4 See also Commonwealth v. Johnson, 828 A.2d 1009, 1015 (Pa. 2003)
(stating right to counsel under Article I, § 9 of Pennsylvania Constitution is
coterminous with Sixth Amendment for determining when right attaches).
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Rule 121 of the Pennsylvania Rules of Criminal Procedure outlines the
information the court must elicit from the defendant to ensure a valid waiver
of counsel. See Pa.R.Crim.P. 121(A)(2).5 The court must determine whether
the defendant has waived the right to counsel regardless of the defendant's
financial eligibility for appointed counsel, and the failure to conduct a Rule 121
5
Rule 121(A)(2) provides:
To ensure that the defendant's waiver of the right to counsel is
knowing, voluntary, and intelligent, the judge or issuing authority,
at a minimum, shall elicit the following information from the
defendant:
(a) that the defendant understands that he or she has the right to
be represented by counsel, and the right to have free counsel
appointed if the defendant is indigent;
(b) that the defendant understands the nature of the charges
against the defendant and the elements of each of those charges;
(c) that the defendant is aware of the permissible range of
sentences and/or fines for the offenses charged;
(d) that the defendant understands that if he or she waives the
right to counsel, the defendant will still be bound by all the normal
rules of procedure and that counsel would be familiar with these
rules;
(e) that the defendant understands that there are possible
defenses to these charges that counsel might be aware of, and if
these defenses are not raised at trial, they may be lost
permanently; and
(f) that 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, these
errors may be lost permanently.
Pa.R.Crim.P. 121(A)(2).
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colloquy constitutes per se reversible error. Commonwealth v. Clyburn, 42
A.3d 296, 300-01 (Pa.Super. 2012). A waiver of the right to counsel before a
magisterial district judge does not constitute waiver in the Court of Common
Pleas. Rather, the trial court must conduct a new colloquy prior to proceedings
in that court. See Pa.R.Crim.P. 121(C); see also id., Comment;
Commonwealth v. Johnson, 158 A.3d 117, 123 (Pa.Super. 2017).
Here, Turner was charged with a misdemeanor DUI, which exposed him
to a potential sentence of six months' imprisonment. See 75 Pa.C.S.A. §
3803(a)(1). He therefore had a constitutional right to counsel. Moody, 125
A.3d at 14. Although Turner waived this right for his preliminary hearing, the
trial court was obligated to conduct a waiver colloquy on the record prior to
proceeding to trial. Johnson, 158 A.3d at 123. Nonetheless, and even though
Turner informed the trial court during his formal arraignment that he was in
the process of obtaining representation, the court failed to conduct a colloquy,
either at the arraignment, the pretrial conference, or trial. The record is
therefore silent as to whether Turner was aware of his right to counsel and is
insufficient to establish that he knowingly, intelligently, and voluntarily waived
that right. See Phillips, 141 A.3d at 517.
The Commonwealth argues that a waiver colloquy was unnecessary
because Turner forfeited his right to counsel. The Commonwealth contends
that Turner forfeited his right because he had the opportunity and financial
ability to seek counsel, but appeared in court without representation and did
not request a continuance in order to obtain representation. In support, the
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Commonwealth cites Lucarelli, 971 A.2d at 1179, and Commonwealth v.
Wentz, 421 A.2d 796 (Pa.Super. 1980) (plurality).
It is true that a court need not conduct a colloquy to ensure there was
a knowing, intelligent, and voluntary waiver of the right to counsel where the
defendant has forfeited that right. See Commonwealth v. Staton, 120 A.3d
277, 286 (Pa. 2015). A criminal defendant may forfeit the right to counsel
only through "extremely serious misconduct" or "extremely dilatory
misconduct." Id. (citing Lucarelli, 971 A.2d at 1179).
We disagree that Turner forfeited his right to counsel. His conduct did
not rise to the level of "extremely serious misconduct" or "extremely dilatory
misconduct." Id. The Commonwealth's citations to Lucarelli and Wentz are
unavailing. In Lucarelli, the defendant hired several attorneys over an eight -
month period, and obtained $20,000 from the court five weeks before trial
specifically for the purposes of obtaining representation, but had no excuse
for not having counsel at the time of trial. Lucarelli, 971 A.2d at 1180. The
Pennsylvania Supreme Court concluded the defendant's "extremely dilatory
misconduct" constituted a forfeiture of counsel. Similarly, in Wentz, the trial
court advised the defendant at his arraignment that he was not eligible for
court -appointed counsel and that he should obtain private counsel. 421 A.2d
at 798. The defendant nonetheless appeared at trial without counsel and
without an explanation other than that he had "requested 'free' counsel" and
gave no indication that he had taken reasonable steps to obtain private
counsel. Id. The court reiterated that he was not eligible for court -appointed
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counsel. The defendant replied that he "didn't know any attorneys" in the area
but admitted that he had known the trial date for "weeks and weeks." Id. We
concluded that the court had not erred in requiring the defendant to proceed
without the assistance of counsel. We explained that otherwise, a 'court wise'
criminal defendant could continually appear in court without counsel on the
date scheduled for his trial but refuse [to waive his right to counsel,] making
it impossible to proceed with his trial." Id. at 800.
Here, Turner did not cause any delay in the proceedings or do anything
to risk a delay, much less engage in extremely dilatory conduct or extremely
serious misconduct. Rather, although he told the court at the arraignment that
he had obtained private counsel, he did not seek a continuance of the
arraignment in order for counsel to appear on his behalf. Nor did he at any
subsequent proceeding ask for a continuance, despite the absence of counsel.
At most, he acquiesced in the proceedings going forward without private or
appointed counsel appearing on his behalf, and without any colloquy
establishing his knowing, intelligent, and voluntary waiver of his right to
counsel.
The Commonwealth's other arguments are similarly without force. The
record is silent on whether Turner qualified for court -appointed counsel, and
we decline to make that determination in the first instance. Finally, the
Commonwealth's suggestion that forfeiture may occur where the defendant
has the means to retain counsel but knowingly appears for trial without
counsel lacks a proper foundation. To the extent Wentz suggests such a
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standard, it is a non -binding plurality decision, and even if binding, it has been
supplanted by Lucarelli's "extremely serious misconduct" or "extremely
dilatory misconduct" standard. See Commonwealth v. Travillion, 17 A.3d
1247, 1248 (Pa. 2011) (stating forfeiture arises from a defendant's "extremely
serious misconduct" or "extremely dilatory conduct" and finding forfeiture).
We therefore vacate Turner's judgment of sentence and remand for a new
trial. See Monica, 597 A.2d at 604 (remanding for new trial where trial court
failed to conduct on -the -record colloquy before allowing defendant to proceed
to trial pro se).
Judgment of sentence vacated. Case remanded for proceedings
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 1/7/19
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