Com. v. Hosler, H.

Opinion

J-S15030-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HARRY EDWARD HOSLER : : Appellant : No. 503 MDA 2022

Appeal from the Judgment of Sentence Entered March 3, 2022 In the Court of Common Pleas of Schuylkill County Criminal Division at No.: CP-54-CR-0000955-2021

BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.

MEMORANDUM BY STABILE, J.: FILED OCTOBER 24, 2023

Appellant, Harry Edward Hosler, appeals from the March 3, 2022

judgment of sentence entered in the Court of Common Pleas of Schuylkill

County (“trial court”), following the revocation of his probation. His counsel

has filed a brief and an application to withdraw pursuant to Anders v.

California, 386 U.S. 738 (1969), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). Upon review, we vacate the judgment of sentence and

deny counsel’s application to withdraw.

The facts and procedural history of this case are undisputed. On June

30, 2020, Appellant was sentenced to an 18-month probationary period for

criminal trespass; breaking into an occupied structure, 18 Pa.C.S.A.

§ 3503(a)(1)(ii) at docket 2137-2016.

While serving the probationary sentence, Appellant, on March 3, 2021,

was arrested and charged with possession of a controlled substance J-S15030-23

(methamphetamine), 35 P.S. § 780-113(a)(16), at the current docket 955-

2021. On May 3, 2021, Appellant pled guilty to the possession charge before

the magisterial district court and was sentenced to 12-months of probation,

to run concurrently with the probationary sentence imposed at docket 2137-

2016.

Less than five months later, on September 24, 2021, at docket 1823-

2021, Appellant was arrested and charged with, inter alia, possession with

intent to deliver (“PWID”) (methamphetamine), 35 P.S. § 780-113(a)(30), in

connection with an incident that occurred in Pottsville on July 12, 2021.1

On December 3, 2021, in light of the PWID charge, the Commonwealth

filed a motion to revoke Appellant’s probation in the instant case, docket 955-

2021. Appellant proceeded to represent himself and the record does not

indicate whether the trial court conducted a Grazier hearing sub judice.2

However, there is some suggestion in the record that a Grazier hearing might

have been conducted in an unrelated case in Schuylkill County before a

different judge. See N.T., Revocation, 3/3/22, at 20 (“So Judge Hale gave

you a number of questions that she asked to make sure this is what you want

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1 During the pendency of this appeal, and following a guilty plea, Appellant

was sentenced to 27 to 54 months’ incarceration for PWID at 1823-2021, to run concurrently with his other sentences. 2 Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (requiring a colloquy to determine if the petitioner was knowingly, intelligently, and voluntarily relinquishing his right to counsel).

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to do of your own free will”). Following a Gagnon hearing,3 at which the

Commonwealth presented evidence, the trial court granted the

Commonwealth’s motion, and revoked Appellant’s probation sentencing him

to 3 to 6 months’ imprisonment on March 3, 2022. Id. at 34. Still pro se,

Appellant timely appealed. On April 13, 2022, this Court directed the trial

court to conduct a Grazier hearing, following which Attorney James G.

Conville (“Attorney Conville or counsel”) was appointed to represent Appellant

on appeal.

On October 22, 2022, Attorney Conville filed in this Court an application

to withdraw as counsel and filed an Anders brief, wherein he raised a

challenge under Commonwealth v. Simmons, 262 A3d 512 (Pa. Super.

2021) (en banc) (holding that sentence imposed following anticipatory

probation revocation is an illegal sentence). Anders Brief at 5-6.

When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first examining counsel’s petition to

withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. ____________________________________________

3 In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Supreme Court determined a two-step procedure was required before parole or probation may be revoked: [A] parolee [or probationer] is entitled to two hearings, one a preliminary hearing [Gagnon I] at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his parole [or probation], and the other a somewhat more comprehensive hearing [Gagnon II] prior to the making of a final revocation decision. Id. at 781-82. Here, there is no indication in the record that the trial court ever conducted a Gagnon I hearing.

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2007) (en banc). It is well-established that, in requesting a withdrawal,

counsel must satisfy the following procedural requirements: 1) petition the

court for leave to withdraw stating that, after making a conscientious

examination of the record, counsel has determined that the appeal would be

frivolous; 2) provide a copy of the brief to the defendant; and 3) advise the

defendant that he or she has the right to retain private counsel, proceed pro

se or raise additional arguments that the defendant considers worthy of the

court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009).

Instantly, counsel’s application to withdraw from representation

provides that counsel reviewed the record and concluded that the appeal is

frivolous. Furthermore, counsel notified Appellant that he was seeking

permission to withdraw and provided Appellant with copies of the petition to

withdraw and his Anders brief. Counsel also advised Appellant of his right to

retain new counsel, proceed pro se, or raise any additional points he deems

worthy of this Court’s attention. Accordingly, we conclude that counsel has

satisfied the procedural requirements of Anders.

We next must determine whether counsel’s Anders brief complies with

the substantive requirements of Santiago, wherein our Supreme Court held:

[I]n the Anders brief that accompanies court-appointed counsel’s petition to withdraw, counsel must: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of

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record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361. Here, our review of counsel’s brief indicates that

he has complied with the briefing requirements of Santiago. We, therefore,

conclude that counsel has satisfied the minimum requirements of

Anders/Santiago.

Once counsel has met his obligations, “it then becomes the responsibility

of the reviewing court to make a full examination of the proceedings and make

an independent judgment to decide whether the appeal is in fact wholly

frivolous.” Santiago, 978 A.2d at 355 n.5.

Before we may turn to the merits of this appeal, we find we must

examine whether Appellant’s constitutional rights were violated when he was

not given a waiver-of-counsel colloquy prior to the start of the March 3, 2022,

revocation hearing.

It is well-established that a criminal defendant has a Sixth Amendment

right to counsel,4 which attaches at “the initiation of adversary proceedings,”

which includes the filing of a criminal complaint. Commonwealth v. McCoy,

975 A.2d 586, 590 (Pa. 2009); see Commonwealth v. Prysock, 972 A.2d

539, 542 (Pa. Super. 2009) (citation omitted) (noting that criminal defendants

have a Sixth Amendment right to counsel). An accused unable to afford

counsel has the right to have counsel appointed for him. Powell v. Alabama, ____________________________________________

4 The Amendment guarantees that, “[i]n all criminal prosecutions,” an accused

shall enjoy the right “to have the assistance of counsel for his defense.” U.S. CONST. amend. VI.

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287 U.S. 45, 53 (1932). “This right extends to everyone charged with an

offense punishable by imprisonment . . . and is binding upon the states.”

Commonwealth v. Brown, 476 A.2d 381, 384 (Pa. Super. 1984) (citations

omitted).

As our Supreme Court has explained:

The right to counsel is one of the safeguards of the Sixth Amendment deemed necessary to ensure fundamental human rights of life and liberty, and serves as one of the essential barriers against arbitrary or unjust deprivation of human rights. The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not still be done. The essence of this right is the opportunity for a defendant to consult with an attorney and to have him investigate the case and prepare a defense for trial. Once the adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to have counsel present at all critical stages of the criminal proceedings.

....

The denial of the right at any stage constitutes a structural defect that must be remedied, because any such error affects the framework within which the trial proceeds.

Kuren v. Luzerne County, 146 A.3d 715, 732-33 (Pa. 2016) (brackets,

ellipsis, citations and quotation marks omitted). A defendant, however, is free

to relinquish this right, so long as he or she does so knowingly, voluntarily,

and intelligently. Indeed, it is the responsibility of the trial court to ensure

that a colloquy is performed if the defendant has invoked his right to self-

representation. See Commonwealth v. Davido, 868 A.2d 431, 437-38 (Pa.

2005). As alluded above, “[b]oth the right to counsel and the right to self-

representation are guaranteed by the Sixth Amendment to the United States

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Constitution and by Article I, Section Nine of the Pennsylvania Constitution.

Deprivation of these rights can never be harmless.” Commonwealth v.

Payson, 723 A.2d 695, 700 (Pa. Super. 1999) (citations omitted). “Courts

indulge every reasonable presumption against waiver of fundamental

constitutional rights and that we do not presume acquiescence in the loss of

fundamental rights. A waiver is ordinarily an intentional relinquishment or

abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S.

458, 464 (1938) (footnotes and citations omitted).

“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.” Commonwealth v. Houtz, 856 A.2d 119, 123 (Pa. Super.

2004) (citation omitted). 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. Id. at 124 (citing Payson, 723 A.2d at 701).

“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.” Commonwealth v.

Noonan, 285 A.3d 523, 525-26 (Pa. 1971). Furthermore, waiver cannot be

presumed in a silent record. Id. at 526 (emphasis added).

The inherent importance of the right to counsel justifies its

overwhelming protection and the rigorous requirements necessary to find

waiver. A panel of this Court previously extended the Court’s duty to sua

sponte raise the issue of waiver of counsel in termination of parental rights

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cases. See In re X.J., 105 A.3d 1,4 (Pa. Super. 2014) (citing

Commonwealth v. Stossel, 17 A.3d 1286 (Pa. Super. 2011)). Flowing from

the cases discussed above, it is apparent that this Court has a duty to review

whether Appellant properly waived his right to counsel prior to or at his

revocation hearing even though he has not asserted this issue on appeal.

“[A] judge’s thorough inquiry into the accused’s appreciation of both

[the right to counsel and the right to represent oneself] must be used in

certain summary proceedings, at trial, guilty plea hearings, sentencing, and

every ‘critical stage’ of a criminal proceeding.” Commonwealth v. Phillips

(“Phillips I”), 93 A.3d 847, 853 (Pa. Super. 2014) (quoting Commonwealth

v. Baker, 464 A.2d 496, 499 (Pa. Super. 1983). “A critical stage in a criminal

proceeding is characterized by an opportunity for the exercise of judicial

discretion or when certain legal rights may be lost if not exercised at that

stage.” Commonwealth v. Johnson, 828 A.2d 1009, 1014 (Pa. 2003).

Tellingly, “the right to counsel under Article I, § 9 [of the Pennsylvania

Constitution] is coterminous with the Sixth Amendment right for purposes of

determining when the right attaches.” Commonwealth v. McCoy, 975 A.2d

586, 590 (Pa. 2009) (citations omitted). In Phillips I, this Court found that

a suppression hearing constituted a critical stage requiring judicial inquiry into

the defendant’s right to counsel. See Phillips I, 93 A.3d at 854-55. Relevant

to this case, revocation proceedings have been held to constitute a critical

stage. See Commonwealth. ex rel. Rambeau v. Rundle, 314 A.2d 842,

846 (Pa. 1973) (noting that a defendant is entitled to the assistance of counsel

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at his parole revocation hearing because the assistance of counsel is required

at every stage of a criminal proceeding where substantial rights of a criminal

accused may be affected).

Moreover, this Court has held that “once a defendant has made a

competent waiver of counsel, that waiver remains in effect through all

subsequent proceedings in that case absent a change of circumstances.”

Commonwealth v. Phillips (“Phillips II”), 141 A.3d 512, 521 (Pa. Super.

2016) (emphasis added). However, in Phillips II, the trial court had

previously conducted an adequate on the record colloquy prior to finding that

the defendant knowingly, voluntarily, and intelligently waived his right to

counsel. See id. at 519. Therefore, the defendant’s constitutional right to

counsel was not violated.

In Monica, our Supreme Court held that “waiver [cannot] be presumed

where the record is silent. The record must show, or there must be an

allegation and evidence which show, that an accused was offered counsel but

intelligently and understandingly rejected the offer. Anything less is not

waiver.” Monica, 597 A.2d at 603. Further, in Payson, this Court found that

a written waiver of counsel form signed before a magistrate is not applicable

to a waiver of counsel during a subsequent guilty plea. See Payson, 723

A.2d at 704. Additionally, this Court noted that the defendant’s waiver before

the district justice contained the “specific notation that it is effective only as

to the proceeding before the district justice.” Id. (emphasis in original).

“We have long stated that ‘a signed statement alone cannot establish that a

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defendant has effectively waived [his constitutional] right [to counsel].’”

Commonwealth v. Clyburn, 42 A.3d 296, 300 (Pa. Super. 2012) (quoting

Commonwealth ex re. Clinger v. Russell, 213 A.2d 100, 101 (Pa. Super.

1965)).

Here, there is nothing in the record indicating Appellant ever waived his

right to counsel on the record in this case before the trial court conducted

the March 3, 2022, revocation hearing. The fact that Appellant might have

waived this right in an unrelated case before a different judge does not cure

any constitutional violations vis-à-vis this case. Thus, this case is

distinguishable from Phillips II, where the trial court previously conducted

an adequate on the record colloquy. As a revocation hearing is a critical stage

and Appellant was not colloquied on the record, we are constrained to find

that Appellant did not knowingly, voluntarily, and intelligently waive his right

to counsel. Differently put, in order to proceed at the March 3, 2022,

revocation hearing, the trial court was required to determine, on the record,

whether Appellant knowingly, voluntarily, and intelligently waived his right to

counsel. It did not do so. We, therefore, hold that the trial court’s failure to

colloquy Appellant of his constitutional right to counsel prior to the revocation

hearing requires us to vacate his judgment. Appellant is entitled to a new

revocation hearing in the instant case.

Finally, we conclude that counsel complied with Anders/Santiago and

identified issues that arguably could support an appeal. However, given our

sua sponte determination resulting from our independent review of the record

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that Appellant’s constitutional right to counsel was violated here, we must

deny counsel’s application to withdraw because Appellant is entitled to counsel

during the new revocation hearing. See Commonwealth v. Johnson, 158

A.3d 117, 122 (Pa. Super. 2017) (explaining that a criminal defendant has a

right to counsel at all critical stages of criminal proceedings).

Judgment of sentence vacated. Application to withdraw denied. Case

remanded for further proceedings. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 10/24/2023

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