Com. v. Lovelace, T.

• Court: Superior Court of Pennsylvania
• Decided: October 11, 2019
• Docket: 543 EDA 2019
• Status: Unpublished

Opinion

J-S49024-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

TEKEESHA LARAE LOVELACE

Appellant No. 543 EDA 2019

Appeal from the Order Entered December 28, 2018 In the Court of Common Pleas of Chester County Criminal Division at No: CP-15-CR-0001288-2018

BEFORE: BENDER, P.J.E., STABILE, J. and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED OCTOBER 11, 2019

Appellant, Tekeesha Larae Lovelace, appeals from her judgment of

sentence of 11½—23 months’ imprisonment for aggravated assault, resisting

arrest and driving under suspension.1 We remand this case for the trial court

to conduct a hearing concerning whether Appellant knowingly, intelligently

and voluntarily waived her right to appellate counsel.

During a traffic stop, police officers attempted to arrest Appellant based

on suspicion that she was driving while under the influence of a controlled

substance. Appellant became combative and struck the officers. The jury

found her guilty of the aforementioned charges. On November 30, 2018, the

trial court imposed sentence.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2702, 5104 and 75 Pa.C.S.A. § 1543. J-S49024-19

At the conclusion of the sentencing hearing, Appellant’s attorney stated

that Appellant wanted to handle post-sentence motions and the appeal

herself. N.T., 11/30/18, at 46. The court asked whether counsel had reviewed

any colloquy with Appellant relating to her right to appellate counsel. Id.

Counsel replied that he did not have a colloquy but could get one to the clerk.

Id. The court stated to Appellant:

[Counsel is] going to go over your rights as far as the deadlines for filing your appeal and your post-sentences motions and all of that. He will give you a copy of that in writing. So I’m going to direct that you sit down with him and go through all of that because I want to make sure that you understand what your rights are. If you have any questions about that that you feel he can’t answer, I’m happy to come back here in court and answer any questions you have on that. So I will give you the opportunity to spend the time with him. As I said, it’s a preprinted form. Everyone goes through that. It’s not like he has made it up or anything like that. This is the standard form that everyone goes through so that we make sure you understand your rights and you don’t miss any deadlines. So I’m going to direct that you sit with him, go through that, and then, as I said, if you are uncomfortable with his advice and you have a question about anything concerning that, I’ll come back and I’ll try to answer any questions that you have . . .

Id. at 47. The court entered an order permitting counsel to withdraw his

appearance. The record, however, does not include any written form in which

Appellant waived appellate counsel or any hearing transcript in which

Appellant waived counsel after being apprised of the rights that she was giving

up.

Appellant did not file post-sentence motions, but she did file a timely

pro se notice of direct appeal. She also filed a motion for leave to proceed in

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forma pauperis, which the trial court granted. Both Appellant and the trial

court complied with Pa.R.A.P. 1925. The court’s Rule 1925 opinion

recommended dismissal of Appellant’s appeal due to the vagueness of her

Pa.R.A.P. 1925 statement.

In this Court, Appellant filed a pro se brief in this appeal raising three

issues:

I. Whether the Commonwealth had sufficient evidence to establish a prima facie case?

II. Abuse of discretion/authority

III. Was the verdict against the weight of the evidence and the law?

Appellant’s Brief at 7.

We do not reach the issues presented in Appellant’s brief, because there

is no colloquy in the record relating to waiver of Appellant’s right to appellate

counsel on direct appeal. It is well settled that “[i]n addition to the accused’s

absolute right to a direct appeal of his sentence, the accused has the right to

assistance of court-appointed counsel to pursue such appeal, if indigent.”

Commonwealth v. Bronaugh, 670 A.2d 147, 149 (Pa. Super. 1995). “While

an accused possesses such rights, he also has the ability to waive his right to

counsel and to an appeal.” Id. “The effective waiver of such a right must be

an intentional relinquishment or abandonment of a known right or privilege[,

and] no waiver can be presumed where the record is silent.” Id.

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Pursuant to Bronaugh, we cannot overlook the absence of any colloquy

establishing that Appellant knowingly and intelligently waived her right to

counsel after being informed of the rights and privileges that she was

relinquishing. We conclude that the proper course of action is to remand this

case for an on-the-record colloquy, within thirty days of this memorandum, in

which the trial court ascertains whether Appellant’s decision to waive counsel

is knowing, intelligent and voluntary. Cf. Commonwealth v. Robinson, 970

A.2d 455, 460 (Pa. Super. 2009) (noting in context of PCRA appeal that

“regardless of how unambiguous a defendant’s [desire to proceed pro se] may

be, without a colloquy the court cannot ascertain that the defendant fully

understands the ramifications of a decision to proceed pro se and the pitfalls

associated with his lack of legal training. Thus, a defendant cannot knowingly,

voluntarily, and intelligently waive counsel until informed of the full

ramifications associated with self-representation”). If Appellant confirms

following a proper colloquy that she would like to proceed pro se, and the trial

court is satisfied that her decision to waive counsel is knowing, voluntary, and

intelligent, the court shall enter an order permitting Appellant to represent

herself. If Appellant indicates that she wants counsel to represent her, or if

the court determines that her decision to waive counsel is not knowing,

voluntary, and intelligent, the court shall enter an order appointing counsel to

represent her on direct appeal.

Case remanded with instructions. Panel jurisdiction retained.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/11/19

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