Com. v. Schoenfeld, J.

• Court: Superior Court of Pennsylvania
• Decided: May 22, 2024
• Docket: 945 WDA 2022
• Status: Unpublished

Opinion

J-S46042-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JUSTIN D. SCHOENFELD : : Appellant : No. 945 WDA 2022

Appeal from the Judgment of Sentence Entered July 25, 2022 In the Court of Common Pleas of Cambria County Criminal Division at No(s): CP-11-CR-0001007-2021

BEFORE: DUBOW, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED: May 22, 2024

Justin D. Schoenfeld (“Schoenfeld”) appeals from the judgment of

sentence imposed following his convictions of three counts of driving under

the influence (“DUI”) and a related offense.1 We vacate the judgment of

sentence and remand for a new trial.

The trial court summarized the factual background of this appeal as

follows:

At 10:43 p.m. on May 5, 2021, Summerhill Township Police Officer Donald Wyar ([“Officer Wyar”]) was dispatched to the scene of a one vehicle accident. Upon arriving, [Officer] Wyar observed Schoenfeld, the only occupant of the vehicle, seated behind the steering wheel and complaining of neck and back pain. [Officer] Wyar observed: a case of beer on the front passenger side floor; empty cans of alcoholic beverages in the vehicle; and an odor of alcohol coming from Schoenfeld. Emergency personnel arrived, removed Schoenfeld from the vehicle, and transported ____________________________________________

1 See 75 Pa.C.S.A. § 3802(d)(1)(ii) (related to amphetamines), (d)(1)(ii) (related to methamphetamines), and (d)(2) (related to combination of drugs resulting in impairment); 75 Pa.C.S.A. § 3714(a). J-S46042-23

him to the Conemaugh Memorial Medical Center’s emergency room [(“the hospital”)] where, as part of his treatment, a blood draw was performed on Schoenfeld at 11:45 p.m.

Approximately thirty-six minutes after the blood draw at 12:21 a.m. on May 6th, [Officer] Wyar advised Schoenfeld that he was under suspicion of DUI and requested that he submit to chemical testing of the blood draw. [Officer] Wyar read Schoenfeld the standard chemical test warnings on form DL-26 and Schoenfeld consented to having his blood tested. Schoenfeld’s blood test results were positive for amphetamine, methamphetamine, diazepam, and nordiazepam. The test was negative for alcohol. A urine screen performed at 1:57 a.m. on May 6th and was positive for amphetamine and benzodiazepines.

Trial Court Opinion, 4/25/23, at 2-3.

Schoenfeld signed a waiver of counsel form in the magisterial district

court in September 2021. Acting pro se, and while apparently still on bail at

the time, Schoenfeld requested continuances in October 2021 and January

2022, and he acknowledged a previously scheduled trial date.2 See

Continuance Request Forms, 10/1/21 and 1/5/22, at 1 (indicating Schoenfeld

was not in prison); Preliminary Conference Sheet, 3/2/22 at 1 (same); but

see Preliminary Conference Sheet, 3/15/22, at 1 (indicating Schoenfeld was

in prison).

Schoenfeld appeared pro se for trial on July 7, 2022. During the court’s

colloquy on Schoenfeld’s waiver of a jury trial, Schoenfeld waived his right to

a trial by a jury. However, Schoenfeld indicated that he applied for a public

defender, but the public defender’s office rejected his application. See N.T.,

____________________________________________

2 The Commonwealth also sought continuances of trial, which the court granted.

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7/7/22, at 2. The trial court indicated, “[W]e went through that with your last

trial[,]” referring to a separate criminal case (the “separate case”). Id.3 The

trial court explained that in the separate case: it was determined that

Schoenfeld’s income and assets were “well above the guidelines” for a public

defender; there had been a delay of “months” in that case before Schoenfeld

eventually retained counsel; and a jury had acquitted him of the “main

charges” but found him guilty on the “the other ones.” Id. at 5-6.

The Commonwealth conducted a colloquy of Schoenfeld concerning his

right to counsel. See id. at 3-11. Schoenfeld maintained he should qualify

for a public defender because he was incarcerated and had no assets or

property. See id. He further asserted that the public defender’s office

rejected his application due to his previous application in the separate case.

See id. at 3-4. At the conclusion of the colloquy, Schoenfeld refused to sign

a waiver of counsel form. See id. at 10. The Commonwealth noted

Schoenfeld was “maintaining on the record that he won’t waive counsel[; but

the c]ourt’s aware that he doesn’t qualify for a [p]ublic [d]efender.” Id. The

Commonwealth stated it had no objection to a continuance but asserted that

Schoenfeld was “just going to continue to attempt to sort of ham[s]tring these

proceedings.” Id. at 10-11. The court concluded, “Let’s proceed.” Id. at 11.

3 It appears that in the separate case, the trial court presided over a criminal

matter docketed in the trial court at No. 1055-202. Schoenfeld appealed the judgment of sentence in that case at 783 WDA 2022. See Response to Order, 945 WDA 2022, 9/23/22, at 1; Order, 945 EDA 2022, 12/9/22, at 1.

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The Commonwealth thereafter presented testimony from Officer Wyar.

Schoenfeld maintained any drugs in his system were given to him at the

hospital and his medical records would establish that fact. The court granted

Schoenfeld’s request to obtain his medical records and continued the trial. On

July 25, 2022, the court reconvened the trial, reviewed the medical records

on the record, heard arguments from the parties, and found Schoenfeld guilty

of the above-mentioned offenses. That same day, the court sentenced

Schoenfeld to an aggregate term of three days to six months of imprisonment

and fines and costs. Schoenfeld, still acting pro se, filed a motion for

reconsideration/notice of appeal, which this Court docketed as a timely

appeal.4

The remaining procedures in this appeal are lengthy but illuminating. In

September 2022, this Court remanded for the trial court to clarify whether

Schoenfeld was entitled to the appointment of counsel. See Order, 945 WDA

2022, 9/12/22 at 1. The trial court responded that Schoenfeld was not entitled

to appointed counsel and explained:

In this matter[,] Mr. Schoenfeld has elected to proceed pro se since his preliminary hearing. This decision is evidenced by his indication on the September 23, 2021, Notice of Arraignment where he indicated he was representing himself. Further, each record entry from continuance requests through preliminary conference forms indicates that he has elected to proceed pro se.

Further, the issue of Mr. Schoenfeld’s right to appointed counsel was addressed in [the separate case]. In that matter[,] Mr. Schoenfeld was initially represented by private counsel who ____________________________________________

4 The trial court also entered an order denying reconsideration.

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later withdrew due to a deteriorating attorney-client relationship. The [p]ublic [d]efender’s [o]ffice then evaluated Mr. Schoenfeld to determine if he qualified for their representation and determined that his income and assets far exceeded the guidelines for the appointment of counsel. Mr. Schoenfeld then obtained new private counsel who represented him through trial in th[e separate] case.

As there has been no showing that his financial situation has changed, Mr. Schoenfeld is not entitled to appointed counsel in this matter. This [c]ourt does not appoint counsel to those who have a demonstrated ability to hire counsel but do not do so out of personal choice.

Response to Order, 945 WDA 2022, 9/23/22, at 1.

This Court subsequently vacated the briefing schedule in this appeal,

stating that “it appeared [Schoenfeld] may be entitled to counsel on his direct

appeal.” Order, 945 WDA 2022, 12/9/22, at 1. This Court noted that in the

separate case, the trial court had appointed appellate counsel on July 14,

2022. See id. Therefore, we remanded for the trial court to clarify whether

Schoenfeld was entitled to the appointment of counsel in the present appeal.

See id. at 2. The trial court then appointed present counsel to represent

Schoenfeld in this appeal. See Response to Order, 945 WDA 2022, 1/26/23,

at 23. Following an additional remand for the filing of a counseled Pa.R.A.P.

1925(b) statement and a Rule 1925(a) opinion, this appeal is now before this

panel.

Schoenfeld raises the following issue for our review:

The trial court erred when it found [Schoenfeld] guilty of [DUI]; the weight and sufficiency of the evidence presented by the Commonwealth did not warrant a conviction.

Schoenfeld’s Brief at 5 (some capitalization omitted).

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Before addressing this issue, however, we review the trial court’s

decision to have Schoenfeld proceed to trial pro se. See Commonwealth v.

Forrester-Westad, 282 A.3d 811, 816 (Pa. Super. 2022) (“Given the

inherent importance of the right to counsel and the right to self-

representation, this Court has a duty to review, sua sponte, whether a

defendant waived his or her right to counsel knowingly, voluntarily, and

intelligently before proceeding in every critical stage of a criminal proceeding

. . .”) (citation omitted). Our standard of review is de novo, and our scope of

review is plenary. See Commonwealth v. McLendon, 293 A.3d 658, 666

(Pa. Super. 2023), appeal denied, --- A.3d ---, 2023 WL 8885966 (Pa. 2023).

“The Sixth Amendment to the United States Constitution and Article I,

§ 9 of the Pennsylvania Constitution guarantees a criminal defendant the right

to the assistance of counsel.” Id. at 665. A deprivation of the right to counsel

can never be harmless. See Commonwealth v. Johnson, 158 A.3d 117,

121 (Pa. Super. 2017). However, the right to counsel is not absolute: a

defendant may elect to proceed pro se if he waives his right to counsel; a

court may also require a defendant to proceed pro se if he forfeits the right to

counsel. See Commonwealth v. Lucarelli, 971 A.2d 1173, 1179 (Pa.

2009). Waiver is an intentional and voluntary relinquishment of a known right

to counsel; forfeiture results from the defendant’s extremely serious

misconduct or extremely dilatory conduct. See id.

Here, Schoenfeld appeared pro se for trial. During the colloquy on his

right to counsel, Schoenfeld refused to waive his right to counsel, maintained

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he should qualify for a public defender, and indicated he could not, and would

not, retain private counsel. See N.T., 7/7/22, at 7-8. Although Schoenfeld

previously waived his right to counsel in the magisterial district court, that

waiver did not establish a knowing, intelligent, and voluntary relinquishment

of his right to counsel in subsequent proceedings in the trial court. See

Johnson, 158 A.3d at 123 (noting that while Johnson signed a waiver of

counsel form in the magisterial district court, Johnson did not waive his right

to counsel at a suppression hearing); compare Pa.R.Crim.P. 121(B) (outlining

the procedures for waiving the right to counsel before an issuing authority)

with Pa.R.Crim.P. 121(C) (outlining the procedures for waiving the right to

counsel after a preliminary hearing and before a common pleas court judge).

Thus, Schoenfeld did not waive his right to counsel, and we next consider

whether Schoenfeld forfeited his right to counsel. See Lucarelli, 971 A.2d at

1179.

Our case law recognizes that a defendant should not be permitted to

unreasonably clog the machinery of justice or hamper and delay the state's

efforts to effectively administer justice. See id. In Lucarelli, our Supreme

Court has concluded that “where a defendant’s course of conduct

demonstrates his or her intention not to seek representation by private

counsel, despite having the opportunity and financial wherewithal to

do so, a determination that the defendant be required to proceed pro se is

mandated because that defendant has forfeited the right to counsel.” Id. at

1179 (emphasis added). Lucarelli, for example, engaged in extremely dilatory

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conduct in failing to retain counsel where he had more than eight months to

prepare for trial, retained several attorneys who withdrew from

representation, and, five weeks before trial, the court reduced bail to allow

him to retain new counsel. See id. at 1177, 1180.

In Commonwealth v. Wentz, 421 A.2d 796, 798 (Pa. Super. 1980)

(en banc), this Court rejected Wentz’s claim that the trial court “coerced” him

into proceeding pro se at trial. In that case, an arraignment judge informed

Wentz that he was ineligible for “free” counsel and should obtain private

counsel. Wentz, 421 A.2d at 798 (quotation marks omitted). Wentz then

appeared at trial without counsel and asserted only that he did not know any

attorneys in the area. See id. The trial court, in Wentz, further observed

that Wentz had income “between $350 and $400 every two weeks” and was

not entitled to “free counsel.” See id. at 799.5 ____________________________________________

5 Wentz specifically concluded that

a criminal defendant who has been duly notified of the date of his trial, and who has been advised to obtain counsel to represent him and who, nevertheless, appears in court on the scheduled date without counsel and with no reasonable excuse for the lack thereof and no concrete plans for the obtaining of counsel has waived his right to counsel.

Wentz, 421 A.2d at 799. We note that of the seven judges participating in that decision, two judges joined the author of the lead opinion, one judge concurred in the result, and three judges dissented from that conclusion. Moreover, this Court decided Wentz before our Supreme Court’s decision in Lucarelli, which set forth the extremely serious misconduct or extremely dilatory conduct standard for forfeiture. Nevertheless, given the similarities between the Court’s reasoning in Wentz and the standard of forfeiture in (Footnote Continued Next Page)

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Following our review of the record and the case law, we cannot conclude

that Schoenfeld forfeited his right to counsel at trial. Unlike Wentz, the record

does not establish that the trial court considered Schoenfeld’s present ability

to afford counsel, informed him that he did not qualify for “free”

representation, or warned him to obtain private counsel before appearing at

trial in the present case. Cf. Wentz, 421 A.2d at 798-99. Moreover, while

the trial court indicated that Schoenfeld had assets “well beyond” the

guidelines for the appointment of counsel, see N.T., 7/7/22, at 4-6, the court

only referred to the previous separate case and apparently did not consider

Schoenfeld’s incarceration prior to trial in the present case. See id. The fact

that the trial court, in the previous separate case, appointed Schoenfeld

appellate counsel on July 14, 2022—i.e., after the beginning of trial in the

present case case, but prior to its completion—contradicts the suggestion that

Schoenfeld did not qualify for the public defender or had an ability to retain

private counsel for trial in the present case.

In sum, we perceive nothing concrete or substantive in the record which

supports the trial court’s assessment that Schoenfeld had the resources to

retain private counsel or that Schoenfeld had a proper opportunity to obtain

private counsel before facing the prospect of proceeding to trial as his own

counsel. Without clear indications on the record that Schoenfeld knowingly,

Lucarelli, we discuss Wentz for the purpose of comparison to the circumstances in the present case.

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intelligently and voluntarily waived his right to counsel or forfeited his right to

counsel by engaging in extremely dilatory conduct,6 we cannot overlook, or

accept, the court’s decision to require him to proceed pro se at trial.

Therefore, we conclude that the trial court violated Schoenfeld’s right to

counsel. Because this violation is not subject to a harmless error analysis, we

are compelled to vacate the judgment of sentence and remand for a new trial.

We emphasize nothing in our decision limits the trial court from conducting a

hearing to determine Schoenfeld’s eligibility for continued representation by

appointed counsel or Schoenfeld’s right to proceed pro se following a colloquy.

Additionally, Schoenfeld’s conduct following remand may, in appropriate

circumstances, and based on a more complete record, amount to an

unreasonable attempt to delay the proceedings.7

Judgment of sentence vacated. Case remanded. Jurisdiction

relinquished.

6 We reiterate that the Commonwealth, at trial, did not oppose a continuance.

See N.T., 7/7/22, at 10. Notwithstanding its assertion that Schoenfeld would “hamstring” the proceedings, the Commonwealth presented no evidence of any dilatory conduct by Schoenfeld or his ability to afford private counsel. See id. at 3-11. The Commonwealth noted only that the trial court was aware that Schoenfeld did not qualify for a public defender in the previous separate case. See id. at 10.

7 In light of our conclusion that the record does not support the trial court’s

decision to require Schoenfeld to proceed pro se at trial, we will not address the issue raised by counsel in this appeal.

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5/22/2024

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