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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
CARL EDWARD JOHNSTON, JR.
Appellant No. 1651 MDA 2018
Appeal from the Judgment of Sentence Entered September 6, 2018
In the Court of Common Pleas of Bradford County
Criminal Division at No: CP-08-CR-0000763-2017
BEFORE: STABILE, MURRAY, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 17, 2019
Appellant, Carl Edward Johnston, Jr. appeals pro se from the September
6, 2018 judgment of sentence imposing an aggregate 13 to 43 months of
incarceration for possession of a controlled substance and possession of drug
paraphernalia.' We remand.
Article I, § 9 of the Pennsylvania Constitution and the Sixth Amendment
to the United States Constitution guarantee a criminal defendant the right to
counsel at trial and through the completion of a direct appeal. Douglass v.
California, 372 U.S. 353 (1963); Commonwealth v Kent, 797 A.2d 978,
980 (Pa. Super. 2002). A defendant also has the right to proceed pro se on
appeal. Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998);
' 35 P.S. § 780-113(a)(16), (32).
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Commonwealth v. Rogers, 645 A.2d 223,224 (Pa. 1994). "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." Grazier, 713 A.2d 81 at 82.
Moreover, the trial court is responsible for conducting a waiver colloquy
if the defendant invokes his right to self -representation. Commonwealth v.
Johnson, 158 A.2d 117,121 (Pa. Super. 2017).
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. Failing to conduct an on
the record colloquy pursuant to [Pa.R.Crim.P.] 121(C) before
allowing a defendant to proceed pro se constitutes reversible
error. Once federal constitutional rights are involved, and once it
is clear ... a particular defendant did not exercise those rights, our
inquiry must be whether there was a valid waiver of those
constitutional rights. Furthermore, waiver cannot be
presumed in a silent record.
Id. at 121-22 (emphasis added). The record before us is silent on whether
Appellant validly waived his right to counsel for purposes of this appeal. In
accord with Johnson, we must sua sponte remand for completion of the
record and/or a valid waiver of counsel colloquy.
The record reflects that a jury found Appellant guilty of the
aforementioned offenses at the conclusion of a June 5, 2018 trial, at which
Appellant was represented by counsel. On August 2, 2018, prior to
sentencing, counsel filed a motion for judgment of acquittal on Appellant's
behalf pursuant to Pa.R.Crim.P. 704(B). Four days later, on August 6,2018,
counsel filed a motion to continue the sentencing proceeding, which had been
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set for August 13, 2018. By order of August 16, 2018, the trial court granted
that motion and continued the sentencing proceeding until September 6,
2018. Subsequently, on September 10, 2018, Appellant filed a pro se post -
sentence motion, though due to an issue with the prison mail system, the trial
court did not receive that motion until much later. October 1, 2018, Appellant,
again proceeding pro se, filed a request for transcripts2 and a motion for bail
pending appeal. He filed a pro se notice of appeal the same day. On
November 5, 2018, the trial court filed an order granting Appellant's pro se
motion to proceed in forma pauperis.
On November 29, 2018, Appellant filed a pro se motion to compel
counsel to surrender the case file. On December 13, 2018, the trial court
issued a rule on counsel to show cause why Appellant was not entitled to that
relief. Counsel answered on January 7, 2019, averring that he forwarded the
file to Appellant. In that filing, counsel referenced an order granting his
request to withdraw. Answer to Petition, 1/7/19, at ¶ 4. Counsel also
referenced a conversation with another attorney who "indicated that he may
be representing on appeal Defendant/Petitioner." Id. The certified record
contains no order granting counsel's request to withdraw, nor did appellate
counsel ever enter an appearance on Appellant's behalf.
2 We note that the record does not contain a transcript of the September 6,
2018 sentencing proceeding. We therefore do not know whether Appellant
proceeded pro se at sentencing.
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In summary, we cannot discern the validity of Appellant's waiver of
appellate counsel. We therefore remand for completion of the record3 and/or
a waiver of counsel colloquy. If Appellant is unable or unwilling to enter a
knowing, intelligent, and voluntary waiver of his right to counsel, the trial
court shall notify this Court and we will enter an order granting appropriate
relief. We direct the trial court to carry out these instructions within sixty days
of the date of this memorandum.
Case remanded. Panel jurisdiction retained.
3 The trial court shall return the record with a transcript of the waiver -of -
counsel colloquy, a transcript of the sentencing proceeding, and all other
transcripts prepared in this matter. At present the record contains the June
5, 2018 trial and a transcript, filed on April 3, 2018, of a video interview
between Appellant and a police officer. We note that the police interview
transcript does not specify the interview date.
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