Com. v. Floyd, C.

2020 Pa. Super. 287

• Court: Superior Court of Pennsylvania
• Decided: December 16, 2020
• Docket: 84 MDA 2019
• Status: Published

Opinion

J-S54035-19

2020 PA Super 287

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHARLES FLOYD : : Appellant : No. 84 MDA 2019

Appeal from the Judgment of Sentence Entered December 21, 2018 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001694-2012, CP-22-CR-0002833-2018

BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

OPINION BY DUBOW, J.: FILED DECEMBER 16, 2020

Appellant, Charles Floyd, has appealed from two Judgments of Sentence

entered in the Dauphin County Court of Common Pleas, one entered after

Appellant entered a negotiated guilty plea to Possession with Intent to Deliver

(“PWID”), Criminal Use of a Communication Facility, and Possession of Drug

Paraphernalia,1 and the other entered following the consequent revocation of

Appellant’s sentence of intermediate punishment (“IP”) imposed for a prior

conviction.2 On January 4, 2019, Appellant timely filed one Notice of Appeal

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1 35 P.S. § 780-113(a)(30), 18 Pa.C.S. § 7512(a), and 35 P.S. § 780- 113(a)(32), respectively.

2 On February 19, 2013, Appellant pleaded guilty to felony drug charges at Docket Number 1694-2012 and received a three-year sentence of county IP. Subsequently, following Appellant’s 2014 conviction in an unrelated matter, the court revoked Appellant’s IP sentence and imposed a new two-year IP sentence. J-S54035-19

listing both lower court docket numbers. We conclude that because the trial

court did not inform Appellant of his appellate rights as required by our rules

of criminal procedure, a breakdown in the operation of the court as discussed

in Commonwealth v. Larkin, A.3d , 2020 PA Super 163, at *3 (Pa.

Super. filed July 9, 2020) (en banc) occurred. Thus, we decline to quash this

appeal based on Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018).

Additionally, with this appeal, Appellant’s counsel, James J. Karl,

Esquire, seeks to withdraw from representing Appellant pursuant to Anders.3

Following our review of the record, we conclude that the trial court committed

reversible error by failing to provide appropriate waiver-of-counsel colloquies

before allowing Appellant to proceed pro se at each critical stage of the

proceeding. Accordingly, we vacate Appellant’s guilty plea, vacate Appellant’s

Judgments of Sentence, deny counsel’s Application for Leave to Withdraw as

Counsel, and remand for further proceedings.4

The relevant facts and procedural history, as gleaned from the certified

record, are as follows. On April 9, 2018, the Commonwealth charged

Appellant with the above offenses at Docket Number 2833-2018.5 Initially,

3 Anders v. California, 386 U.S. 738 (1967).

4 On September 4, 2020, Appellant filed a pro se “Motion to Dismiss Attorney James Karl.” In light of our disposition, we deny Appellant’s Motion without prejudice to seek relief in the trial court.

5 The filing of these charges engendered the commencement of revocation proceedings at Docket Number 1694-2012.

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Gregory Mills, Esquire, an assistant public defender, represented Appellant.

However, after the preliminary hearing, Appellant began filing pro se motions,

including a Motion to Suppress and a Petition for Writ of Habeas Corpus.

Appellant also requested that the court permit him to “terminate” Attorney

Mills’s representation of him.

On August 28, 2018, the trial court held a status conference to ascertain

whether Appellant wished to waive his right to counsel. After the court

conducted an abbreviated colloquy, Appellant stated that he would represent

himself.6 The court thereafter permitted Attorney Mills to withdraw as

counsel, and permitted Appellant to proceed pro se with Attorney Mills as

standby counsel.

On September 5, 2018, the trial court held a hearing on Appellant’s

Suppression Motion and Habeas Corpus Petition at which Appellant

represented himself pro se, with Attorney Mills serving as standby counsel.

The court did not conduct a waiver-of-counsel colloquy at the hearing.

Following the hearing, the court denied Appellant’s Motion and his Petition.

On December 12, 2018, Appellant appeared pro se, with Attorney Mills

as standby counsel, and entered guilty pleas to the above charges pursuant

6 The court asked Appellant if he intended to represent himself, informed Appellant that a PWID conviction carried with it a sentence of 15 to 20 years’ incarceration, and explained to Appellant that self-representation conferred upon him the responsibility to make all decisions in the case. N.T., 8/28/18, at 5-8.

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to the terms of a negotiated agreement. The trial court did not conduct a

waiver of counsel colloquy prior to accepting the guilty plea.

On December 21, 2018, Appellant appeared for sentencing. Although

the court again neglected to conduct a waiver of counsel colloquy, Appellant

represented himself with Hillary Hall, Esquire, an assistant public defender,

serving as standby counsel. The trial court sentenced Appellant, at Docket

Number 2833-2018, to a negotiated sentence of two concurrent terms of 6 to

23 months’ incarceration and costs and fines. At the same hearing, the court

revoked Appellant’s IP sentence at Docket Number 1694-2012, and imposed

an 8- to 23-month’ sentence of incarceration, concurrent to the 6- to 23-

month sentence imposed at Docket Number 2833-2018.

Relevant to the issues in this appeal, after imposing Appellant’s

sentence, the court failed to inform Appellant of his appellate rights and failed

to ascertain from stand-by counsel if Appellant was aware of his appellate

rights. On January 4, 2019, Appellant timely filed one Notice of Appeal listing

both lower court docket numbers.

On February 13, 2019, Appellant pro se filed a court-ordered Pa.R.A.P.

1925(b) Statement. On February 29, 2019, the trial court appointed Attorney

Karl to represent Appellant and directed counsel to file a Rule 1925(b)

Statement. On March 20, 2019, Attorney Karl filed a Statement of Intent to

File Anders/McClendon Brief in Lieu of Statement of Errors Complained of

on Appeal pursuant to Pa.R.A.P. 1925(c)(4). The trial court did not file a

responsive Pa.R.A.P. 1925(a) Opinion.

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On March 26, 2019, this Court issued a Rule to Show Cause why we

should not quash Appellant’s appeal in light of Walker, 185 A.3d at 977

(stating that “when a single order resolves issues arising on more than one

lower court docket, separate notices of appeal must be filed. The failure to

do so will result in quashal of the appeal.” (citing Pa.R.A.P. 341)). Appellant

filed a Response noting, inter alia, the trial court’s failure to advise Appellant

of his appellate rights. On April 29, 2019, this Court issued an Order

discharging the Rule to Show Cause and deferring the issue to the merits

panel.

Walker Issue

As noted above, Appellant has appealed from two Judgments of

Sentence but filed only one Notice of Appeal. At first blush, this appears to

be a clear violation of Walker’s prohibition of this practice, requiring quashal

of this appeal.

However, as noted above, we conclude that quashal is unnecessary in

light of this Court’s recent decision in Larkin, 2020 PA Super 163 at *3. In

Larkin, the PCRA court entered an order dismissing the defendant’s PCRA

petition, in which the defendant had sought PCRA relief relating to more than

one docket. Id. at *2. The PCRA court’s dismissal order informed the

defendant that he had thirty days from the date of the order “to file an

appeal.” Id. at *3 (emphasis in original). The defendant timely filed a notice

of appeal listing both of his criminal docket numbers. We declined to quash

the appeal on the ground that the order’s reference to “an appeal” misled the

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defendant into filing a single notice of appeal, thus constituting a breakdown

in the court’s operation. Id. (citing Commonwealth v. Stansbury, 219 A.3d

157, 159-60 (Pa. Super. 2019) (noting that “we have many times declined to

quash a[ defective] appeal when the defect resulted from an appellant’s acting

in accordance with misinformation relayed to him by the trial court” and

holding that this Court can overlook such defects because the purveyance of

misinformation by the court constitutes a breakdown in the court’s

operations)).

Here, Appellant’s failure to file separate Notices of Appeal resulted not

from the purveyance of misinformation but rather from the trial court’s total

neglect in informing Appellant in the first instance of his appellate rights. The

Pennsylvania Rules of Criminal Procedure require the trial court, at the time

of sentencing, to “determine on the record that the defendant has been

advised of . . . the right to . . . appeal[.]” Pa.R.Crim.P. 704(C)(3)(a). See

also Pa.R.Crim.P 708(D)(3)(a) (When the court has determined that the

defendant has violated his probation or parole, “[t]he judge shall advise the

defendant on the record . . . of the right to . . . appeal[.]”).

Instantly, the trial court did not advise Appellant of his appellate rights

after imposing sentence or determine on the record that Appellant had been

advised of his appellate rights. Subsequently, Appellant filed one Notice of

Appeal listing both trial court docket numbers. We conclude that the trial

court’s failure to inform Appellant of his appellate rights as required by the

Rules of Criminal Procedure constitutes a breakdown in the operation of the

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court. Accordingly, pursuant to the holding in Larkin, we decline to quash

Appellant’s appeal.

Appellate Issues

On August 1, 2019, Attorney Karl filed Application for Leave to Withdraw

as Counsel and an Anders Brief raising numerous issues, which counsel

asserted lack merit.7 However, counsel also raised, analyzed, and provided

advocacy in support of, two meritorious issues pertaining to the adequacy of

the trial court’s waiver-of-counsel colloquy at Appellant’s August 28, 2018

hearing and the court’s failure to conduct a waiver-of-counsel colloquy at all

subsequent proceedings including Appellant’s revocation hearing. See

Anders Brief at 18-22, 26-29. Neither Appellant nor the Commonwealth filed

a Response addressing any of the issues raised in counsel’s Anders Brief.

Because counsel has provided advocacy in support of two issues of

arguable merit, we address those issues first.

7 The Anders Brief contained issues pertaining to: (1) the denial of Appellant’s Habeas Corpus Petition; (2) the denial of Appellant’s suppression Motion, (3) the validity of Appellant’s guilty plea; (4) the validity of a March 20, 2015 revocation hearing arising from Appellant’s guilty plea at Docket Number 1859-2014; (5) the one-month delay in the court filing Appellant’s revocation detainer; (6) the validity of the December 21, 2018 revocation proceeding; and (7) whether Appellant was serving a sentence when he committed a new criminal offense on April 9, 2018.

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Waiver of Counsel Colloquy

Appellant asserts that his August 28, 2018 waiver-of-counsel colloquy

was inadequate and that the court failed to colloquy him at all subsequent

proceedings, including any of the proceedings revoking his IP.8 Id.

When a defendant seeks to waive the right to counsel, the trial court

must conduct on the record a full and complete waiver colloquy to determine

whether the defendant’s waiver is knowing, voluntary, and intelligent.

Commonwealth v. Brazil, 701 A.2d 216, 219 (Pa. 1997). See

Commonwealth v. Johnson, 158 A.3d 117, 122 (Pa. Super. 2017) (stating

that the court must conduct a “thorough inquiry into the accused’s

appreciation of both [the right to counsel and the right to represent oneself] .

. . at trial, guilty plea hearings, sentencing, and every ‘critical stage’

of a criminal proceeding.” (citation omitted)).

Pennsylvania Rule of Criminal Procedure 121 outlines the requirements

for a valid waiver-of-counsel colloquy. It states, in pertinent part:

[T]he judge or issuing authority, at a minimum, shall elicit the following information from the defendant:

8 Appellant proceeded pro se at: (1) the joint hearing on his habeas corpus and suppression motions at Docket Number 2833-2018; (2) the guilty plea at Docket Number 2833-2018; (3) the sentencing hearing at Docket Number 2833-2018; (4) the revocation hearing at Docket Number 1694-2012; and (5) the sentencing hearing at Docket Number 1694-2012. The court held Appellant’s revocation and sentencing hearings at the same time.

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(a) that the defendant understands that he . . . 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 . . . 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). A court’s failure to conduct a valid colloquy before

allowing a defendant to proceed pro se constitutes reversible error.

Commonwealth v. Murphy, 214 A.3d 675, 678 (Pa. Super. 2019). See

also Commonwealth v. Payson, 723 A.2d 695, 699–700 (Pa. Super. 1999)

(deprivation of the right to counsel, or the right to waive counsel, can never

be harmless). Additionally, where the court fails to conduct a waiver of

counsel colloquy, a defendant’s alleged waiver of counsel is ineffective, even

if the court has appointed standby counsel. Brazil, 701 A.2d at 219.

Our review of the Notes of Testimony from Appellant’s August 28, 2018,

status conference indicates that although the trial court conducted a

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perfunctory waiver-of-counsel colloquy, the colloquy was deficient in that the

court did not advise Appellant of the elements of the charged offenses and the

range of sentences or and/or fines for each. See N.T., 8/28/18, at 5-8. In

addition, our review reveals that the trial court did not perform any waiver-

of-counsel colloquies at the subsequent hearings on Appellant’s suppression

and habeas corpus motions, guilty plea, revocation of his probation, or at

sentencing.

Based on this record and the above case law, we conclude that the trial

court committed reversible error on August 28, 2018, and at each subsequent

proceeding, by allowing Appellant to proceed under his own representation

without first conducting thorough on-the-record colloquies to determine

whether Appellant understood the consequence of proceeding pro se and

knowingly, voluntarily, and intelligently waived his right to counsel.

Accordingly, we are constrained to vacate Appellant’s guilty plea and his

Judgments of Sentence.9

Guilty plea vacated. Judgments of Sentence vacated. Counsel’s Petition

to Withdraw as Counsel denied. Appellant’s “Motion to Dismiss Attorney

James Karl” denied without prejudice. Case remanded. Jurisdiction

relinquished.

Judge Lazarus joins the Opinion.

Judge Bowes files a Dissenting Opinion. ____________________________________________

9 In light of our disposition, we need not address the remaining issues presented in the Anders Brief.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/16/2020

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