Com. v. Harding, J.

• Court: Superior Court of Pennsylvania
• Decided: March 24, 2017
• Docket: Com. v. Harding, J. No. 3214 EDA 2015
• Status: Unpublished

Opinion

J-S84044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v.

JAMES HARDING

Appellant No. 3214 EDA 2015

Appeal from the Judgment of Sentence September 22, 2015 in the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0000914-2014 CP-39-CR-0004806-2013 CP-39-CR-0005211-2013

BEFORE: OLSON, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED MARCH 24, 2017

Appellant, James Harding, appeals pro se from the judgment of

sentence entered in the Lehigh County Court of Common Pleas following

revocation of his parole. We vacate the court’s order and remand for further

proceedings.

The facts of this case are unnecessary for our disposition, and the

relevant procedural history is as follows. On March 17, 2014, Appellant pled

guilty to three counts of driving under the influence at three separate

dockets. That same day, the trial court sentenced Appellant to a negotiated

thirty days’ to six months’ imprisonment for each offense, all to run

consecutively. Appellant subsequently committed new offenses, and on

* Former Justice specially assigned to the Superior Court. J-S84044-16

March 10, 2015, the court conducted a Gagnon II1 hearing at which it

revoked Appellant’s parole, sentenced him to serve the remaining balance of

his original sentence, and granted him immediate reparole.

Thereafter, Appellant again violated his parole when he committed

forgery. The trial court sentenced him to eleven-and-one-half to twenty-

three months’ imprisonment on this new offense. On September 22, 2015,

the court once again conducted a Gagnon II hearing, during which the

following exchange occurred:

THE COURT: [Appellant], you don’t have a lawyer here for your Gagnon hearing. Do you wish to be represented?

[APPELLANT]: No. I want―I wish to get this over and done with.

N.T. Gagnon II Hr’g, 9/22/15, at 2. At the conclusion of the hearing, the

court revoked Appellant’s parole, sentenced him to serve the remaining

balance on his previous sentence, and granted him immediate work release.2

Appellant timely filed a pro se notice of appeal on October 9, 2015. The

court did not order Appellant to file a concise statement of errors complained

of on appeal, pursuant to Pa.R.A.P. 1925(b).

As a prefatory matter, we consider whether Appellant knowingly,

intelligently, and voluntarily waived his right to counsel.

1 Gagnon v. Scarpelli, 411 U.S. 778 (1973). 2 The following day, the court modified its order to have Appellant’s revocation sentence run consecutive to his new sentence for forgery.

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“When a waiver of the right to counsel is sought at the . . . appellate

stages, an on-the-record determination should be made that the waiver is a

knowing, intelligent, and voluntary one.” Commonwealth v. Robinson,

970 A.2d 455, 457 (Pa. Super. 2009) (en banc) (citations and quotation

marks omitted); see also Commonwealth v. Grazier, 713 A.2d 81, 82

(Pa. 1998) (requiring on-the-record determination of whether waiver of

counsel was knowing, intelligent, and voluntary).

Nevertheless, “there is no absolute right under either the Sixth

Amendment or the Fourteenth Amendment [of the United States

Constitution] to be afforded counsel at a parole or probation revocation

hearing.” Jester v. Pennsylvania Bd. of Probation and Parole, 595 A.2d

748, 751 (Pa. Cmwlth. 1991) (citing Gagnon, 411 U.S. at 790).3 Thus, in

parole revocation hearings, the court is not required to conduct an extensive

on-the-record colloquy to ensure that a defendant has effectuated a valid

waiver of counsel. Jester, 595 A.2d at 751. However, “reasonable steps

must be taken to ensure that a parolee has an ample opportunity to retain

counsel of his or her choice or secure the services of the public defender.”

Id. (citation omitted). Furthermore, in the interest of fairness, our Supreme

Court has also recognized the right to counsel “in an appeal from a parole

revocation order[.]” Id. (citing Bronson v. Pennsylvania Bd. of

3 Commonwealth Court decisions are not binding on this Court; however, they may be considered persuasive authority. See Commonwealth v. Heredia, 97 A.3d 392, 395 n.4 (Pa. Super. 2014).

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Probation and Parole, 421 A.2d 1021, 1026 (Pa. 1980)); see also

Pa.R.Crim.P. 708(B)(1).

Instantly, a review of the record reveals no waiver of counsel for

Appellant’s September 22, 2015 revocation hearing. The only indication that

Appellant wanted to proceed pro se was his negative response to the court’s

question as to whether he wished to be represented at the Gagnon II

hearing. See N.T. Gagnon II Hr’g at 2 (“I wish to get this over and done

with.”). Thus, the record does not show that the court took reasonable

steps to ensure Appellant had an opportunity to retain counsel, let alone that

Appellant executed a knowing, intelligent, and voluntary waiver of counsel.

See Robinson, 970 A.2d at 457; Jester, 595 A.2d at 751. Although the

court was not required to conduct an extensive waiver colloquy given the

nature of parole revocation proceedings, the brief exchange between the

court and Appellant was insufficient to constitute an adequate waiver of

counsel. See Jester, 595 A.2d at 751. Accordingly, we vacate Appellant’s

judgment of sentence and remand this matter for the trial court to conduct a

Grazier hearing to determine whether Appellant has knowingly, intelligently,

and voluntarily waived his right to counsel before revoking such parole as

allowed by law. See Grazier, 713 A.2d at 82; Pa.R.Crim.P. 709(B)(1).

Judgment of sentence vacated. Case remanded. Jurisdiction

relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/24/2017

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