Com. v. Johnston, C., Jr.

• Court: Superior Court of Pennsylvania
• Decided: July 17, 2019
• Docket: 1651 MDA 2018
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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). J -S25010-19

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. -4