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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
VINCENT WESLEY HALLMAN
Appellant No. 2882 EDA 2016
Appeal from the PCRA Order June 25, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0007765-2006
BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED APRIL 21, 2017
Vincent Wesley Hallman appeals from the trial court’s order denying
his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§
9541-46 (“PCRA”). After careful review, we affirm.
In 2007, the trial court sentenced Hallman to an aggregate term of
imprisonment of twenty-and-one-half to forty-four years’ imprisonment,
after a jury convicted him of multiple offenses stemming from a robbery.1
Hallman filed a direct appeal to this court, which affirmed his judgment of
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Hallman was convicted of four counts of robbery, 18 Pa.C.S.A. §
3701(a)(1)(ii) and (iv); two counts of aggravated assault, 18 Pa.C.S.A. §
2702(a)(1) and (4); one count of theft, 18 Pa.C.S.A. § 3903; one count of
possessing a firearm without a license, 18 Pa.C.S.A. § 6105; and one count
of resisting arrest, 18 Pa.C.S.A. § 5104.
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sentence on September 25, 2008. Commonwealth v. Hallman, 963 A.2d
566 (Pa. Super 2008) (Table). Hallman filed a petition for allowance of
appeal, which our Supreme Court denied on April 1, 2009. Commonwealth
v. Hallman, 968 A.2d 232 (Pa. 2009) (Table).
On January 20, 2010, Hallman filed a timely pro se PCRA petition
(“Petition 1”). On October 11, 2011, Hallman filed an amendment to his pro
se PCRA petition (“Petition 2”). On September 15, 2014, Hallman’s
appointed counsel filed an amended PCRA petition (“Petition 3”), which
raised the following two issues:
1. Trial counsel was ineffective for failing to object to the jury
instruction on accomplice liability.
2. Trial counsel was ineffective for failing to object to the
prosecutor’s initialing of the amended bills.
Brief of Appellee, at 3.
On November 28, 2014, having received an answer to Petition 3 from
the Commonwealth, the PCRA court held a hearing. At the hearing,
appointed counsel was present, but Hallman requested to proceed pro se in
order to pursue claims raised in Petition 1 and Petition 2 that appointed
counsel believed were frivolous.
Following a colloquy conducted by the Commonwealth to establish the
validity of Hallman’s waiver of counsel, The Honorable R. Stephen Barrett
found Hallman “knowingly, intelligently, and voluntarily relinquished his right
to counsel” pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa.
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1988). N.T. PCRA Hearing, 11/28/14, at 13. Appointed counsel acted as
standby counsel during the hearing.
Prior to argument, the Commonwealth objected on the grounds they
were only prepared to argue the issues Hallman raised in Petition 3. In
response, Judge Barrett presented Hallman with two options: request a
continuance to file an amended pro se petition raising all of the claims
asserted in Petition 1, Petition 2 and Petition 3, or proceed only on the issues
raised in Petition 3. After consulting with counsel, Hallman opted for the
latter, and proceeded pro se only on the issues raised in Petition 3.
Following argument and subsequent briefing on those issues, Judge Barrett
denied Hallman’s petition on June 30, 2015.
On July 15, 2015, Hallman filed a timely notice of appeal, followed by
a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal. On January 13, 2016, the PCRA court issued its Rule 1925(a)
opinion. On appeal, Hallman raises the following issue for our review:
“Was [Hallman] completely denied the right to counsel on [his] first PCRA
petition by the court?” Brief of Appellant, at 4. Specifically, Hallman avers
the PCRA court should have reinstated counsel after the court limited
argument to the issues in Petition 3, which appointed counsel had prepared.
A PCRA petitioner has a constitutional right to represent himself in a
post-conviction proceeding. Grazier, 713 A.2d at 82. However, the court is
required to make an on-the-record determination that petitioner knowingly,
intelligently, and voluntarily waived his right to counsel. Id. Once a
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petitioner has made a competent waiver of his right to counsel, that waiver
remains in effect absent a substantial change in circumstance. See
Commonwealth v. Phillips, 141 A.3d 512, 521 (Pa. Super. 2016).
To ensure waiver of counsel is knowing, intelligent and voluntary,
petitioner must be colloquied on the following: (1) that the defendant
understands that he or she has the right to be represented by counsel, and
the right to have counsel appointed if the defendant is indigent; (2) 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; (3) 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 (4) that the defendant understands that he or she 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. Commonwealth v.
Robinson, 970 A.2d 455, 459 (Pa. Super. 2009).
Here, the Commonwealth engaged in the following colloquy with
Hallman:
Q. Are you aware that you have the right to be represented by
counsel during the pendency of your [PCRA] petition?
A. Yes, sir.
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Q. Are you aware if you choose to take advantage of that right,
Mr. Tone [appointed counsel] will continue his appointment to
represent you in regards to this PCRA hearing?
A. (No response.)
Q. I’ll say it again.
A. Yeah.
Q. If you decide that you wanted to proceed with counsel, Mr.
Tone can continue to represent you?
A. Yes, sir.
Q. Are you aware, then, if you choose to take advantage of your
right to counsel, you do not have to pay Mr. Tone?
A. Yes, sir.
Q. Do you understand that evidentiary hearings are governed by
strict evidentiary rules and rules of criminal procedure?
A. Yes, sir.
Q. Are you aware that if you choose to go forward without an
attorney, you will still be bound by the normal rules of criminal
procedure and evidentiary rules?
A. Yes, sir.
Q. Are you aware that if you do not comply with those rules, you
may lose your opportunity to elicit pertinent, relevant evidence?
A. Yes, sir.
Q. And do you understand if you were represented by an
attorney during the hearing, he would be familiar with the rules
of criminal procedure and rules of evidence?
A. Yes, sir.
Q. Knowing all this, is it still your intention to proceed without
counsel?
A. Yes, sir.
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N.T. PCRA Hearing, 11/28/14 at 10-13. Based on the forgoing, the PCRA
court, pursuant to Grazier, properly found Hallman “knowingly, intelligently,
and voluntarily relinquished his right to counsel,” and allowed him to
proceed pro se. Id. at 13.
Moreover, the record does not suggest Hallman asked the PCRA court
to reinstate appointed counsel and/or sought to limit his waiver of counsel
exclusively to argument in support of Petition 1 and Petition 2. See
Phillips, 141 A.3d at 521 (waiver remained in effect where there was no
substantial change in circumstances, no evidence that waiver of counsel was
limited, and/or no request for reappointment of counsel). In fact, when
presented with an opportunity to file a fourth petition, Hallman, after
consulting with standby counsel, declined. Accordingly, we find the PCRA
court did not deprive Hallman of his right to counsel.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2017
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