Com. v. McGill, B.

• Court: Superior Court of Pennsylvania
• Decided: August 25, 2020
• Docket: 1211 EDA 2019
• Status: Unpublished

Opinion

J-S20038-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BENEDICT KOLLIE MCGILL : : Appellant : No. 1211 EDA 2019

Appeal from the Judgment of Sentence Entered March 18, 2019 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0002428-2018

BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: Filed: August 25, 2020

Benedict Kollie McGill appeals the judgment of sentence entered

following his pro se non-jury trial conviction for Firearms Not to Be Carried

without a License, Disorderly Conduct, and Public Drunkenness.1 McGill claims

that he did not make a knowing, intelligent, and voluntary waiver of his right

to counsel. The trial court and the Commonwealth both agree that the record

does not contain a colloquy ascertaining the validity of McGill’s waiver of his

right to counsel. Therefore, they both agree that we should remand this matter

for a new trial. After careful review, we find that the certified record does not

contain an on-the-record colloquy of McGill waiving his right to counsel.

Therefore, we vacate McGill’s judgment of sentence and remand to the trial

court for further proceedings.

____________________________________________

1 18 Pa.C.S.A. §§ 6106(a)(1), 5503(a)(4), and 5505, respectively. J-S20038-20

On August 12, 2017, police approached McGill outside of an apartment

complex where he was intoxicated and banging on a door. McGill told the

officers that he was carrying a gun for which he did not have a permit. The

officers secured the firearm and charged Appellant with the aforementioned

crimes.

McGill requested and received two continuances of trial in order for him

to obtain counsel. However, on March 18, 2018, after appearing without

counsel a third time, the court denied McGill’s requested continuance. McGill

represented himself in a non-jury trial and was convicted of all charges. He

was sentenced on March 18, 2019, to time served to 23 months, with

immediate bench parole. This timely appeal followed.

McGill raises the following issues before this Court:

A. Did [McGill] make a knowing and intelligent waiver of his right to counsel?

B. Did the trial court abuse its discretion in refusing to grant a continuance to [McGill] who had no legal representation and needed additional time to obtain counsel?

McGill’s Br. at 7 (unnecessary capitalization omitted).

In his first issue, McGill claims that the trial court did not place on the

record a colloquy determining whether his waiver of his right to counsel was

knowing, intelligent, and voluntary. Therefore, McGill argues we should vacate

his sentence and remand for a new trial. See id. at 11. We agree.

“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.”

-2- J-S20038-20

Commonwealth v. Johnson, 158 A.3d 117, 121 (Pa.Super. 2017). “The

constitutional right to counsel may be waived, but this waiver is valid only if

made with knowledge and intelligence. 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. Phillips,

93 A.3d 847, 851-52 (Pa.Super. 2014) (citations and quotation marks

omitted).

“The question of waiver must be determined regardless of whether the

accused can or cannot afford to engage counsel. Failure to conduct a thorough

on-the-record colloquy before allowing a defendant to proceed to trial pro se

constitutes reversible error.” Id. at 853 (citing Commonwealth v. Houtz,

856 A.2d 119, 124 (Pa.Super. 2004)); see also Pa.R.Crim.P. 121(C)

(requiring trial court to ascertain from defendant on record whether waiver of

right to counsel is knowing, voluntary, and intelligent).

Here, the trial court did not conduct an on-the-record colloquy of McGill’s

waiver of his right to counsel prior to McGill proceeding to his non-jury trial

pro se. Although a criminal defendant can forfeit the right to counsel through

“extremely serious misconduct” or “extremely dilatory conduct,” the trial court

here does not claim to have denied McGill counsel under either standard, and

we therefore do not address those standards. See Commonwealth v.

Lucarelli, 971 A.2d 1173, 1179 (Pa. 2009). Accordingly, we vacate McGill’s

judgment of sentence and remand to the trial court. Because we remand on

McGill’s first issue, we do not reach the second.

-3- J-S20038-20

Judgment of sentence vacated. Case remanded for further proceedings.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/25/20

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