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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

GARTH WILLIAM ATKINS

                        Appellant                   No. 1015 MDA 2016


           Appeal from the Judgment of Sentence May 23, 2016
             In the Court of Common Pleas of Centre County
           Criminal Division at No(s): CP-14-CR-0000464-2015


BEFORE: BOWES, LAZARUS, AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                        FILED FEBRUARY 15, 2017

      Garth William Atkins appeals from the May 23, 2016 judgment of

sentence of five to twelve months incarceration imposed following the

revocation of his probation for technical violations. After careful review, we

vacate the judgment of sentence and remand for a new violation of

probation (“VOP”) hearing.

      Appellant pled guilty to harassment by communication, a third-degree

misdemeanor, and disorderly conduct, a summary offense, and the court

sentenced him to one year of probation. Within one month, his supervision

was transferred to Huntingdon County.      On December 30, 2015, a bench

warrant issued for Appellant based on technical probation violations.

Specifically, Appellant was charged with violating Condition 5 of his
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probation, the requirement that he pay all fines, costs and restitution, and

Condition 6, failing to keep appointments with the probation and parole

department, to wit, a mandatory appointment on December 28, 2015.

      A VOP hearing was held on May 23, 2016, when the Commonwealth

established only that the costs, fines and restitution had been paid and

offered no evidence that Appellant missed any probation appointments.

Nonetheless, the Commonwealth asked that Appellant’s probation be

revoked, that he be sentenced to five to twelve months in the county facility,

with credit for time served, and that he be required to complete the Pride

Program, after which he would be eligible to apply for parole.

      Appellant appeared without counsel. He questioned why he was being

required to participate in the Pride Program when his offenses had nothing to

do with drugs or alcohol. He also objected to five months incarceration for

missing one probation appointment and pointed out that he had no new

criminal charges or offenses.    When the court accused Appellant of only

paying his fines and costs “because they found you and brought you in,”

Appellant reminded the court that he turned himself in.          N.T. Probation

Revocation Hearing, 5/23/16, at 3.

      At that juncture, a third person, identified in the record only as Ms.

Delker, interjected that Appellant tested positive for marijuana when he was




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drug-tested during intake in Huntingdon County and that he stated he would

not stop smoking.1       She also represented to the court that Appellant was

highly intoxicated when he turned himself in, and offered this information in

support of the recommendation that he be required to participate in the

substance abuse program.           Appellant disputed that account, advising the

court that no urine sample was taken in Huntingdon County.             Appellant

candidly admitted, however, that, after he completed what he was required

to do, he was going to get into a medical marijuana program.

       The trial court found by a preponderance of the evidence that the two

conditions of Appellant’s probation had been violated, revoked his probation,

and ordered him to undergo imprisonment in the Centre County Correctional

Facility for five to twelve months with credit for time served. The court also

ordered Appellant to complete the Pride Program, and pronounced him

eligible for work release and re-entry programming.

       At that point, the attorney for the Commonwealth inquired whether a

colloquy was necessary. The trial court acknowledged that a colloquy was

probably necessary, and asked Appellant whether he understood that he had

a right to a court-appointed attorney. He answered in the affirmative.

Appellant was then sworn and examined regarding his right to be

____________________________________________


1
 The trial court identified Ms. Ashley Delker in its Rule 1925(a) opinion as
Appellant’s probation officer.



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represented by counsel, his right to have counsel appointed at no cost to

him, and whether he understood the nature of the charges, the permissible

range of sentences and/or fines, and that there are possible defenses to the

charges that if not raised could be permanently lost. Appellant responded in

the affirmative to each question, and when asked whether he “still want[ed]

to proceed by yourself,” he responded, “For an M3 and a summary, yes.”

N.T. Probation Revocation Hearing, 5/23/16, at 8. At that point, the hearing

concluded without any discussion of post-sentence motions or appeal rights.

       On June 20, 2016, Appellant filed a counseled nunc pro tunc post-

sentence motion alleging that the court’s failure to apprise him of his post-

sentence rights constituted a breakdown in the judicial process and

warranted consideration of the motion. He alleged further that, although he

appeared without counsel at the hearing, the trial court failed to conduct an

on-the-record colloquy to ascertain whether he was waiving his right to

counsel at the onset of the proceeding. Appellant asked that his sentence be

vacated and judgment arrested due to a lack of sufficient evidence to

support the violations, and finally, that his sentence of incarceration for a

technical violation was excessive. Appellant filed a notice of appeal to this

Court on June 21, 2016.2 He timely complied with the court’s order to file a

____________________________________________


2
  Although the notice of appeal was not filed within thirty days of judgment
of sentence, we decline to quash the appeal. Since the trial court did not
(Footnote Continued Next Page)


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Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal and

the trial court penned its Rule 1925(a) opinion.     Appellant presents three

issues for our review:

      I.     Did the trial court err in not effectively colloquying
             Defendant on his waiver of counsel prior to what purported
             to be his probation violation hearing?

      II.    Did the trial court err in finding sufficient evidence to
             support alleged probation violations absent sworn
             testimony or a valid admission?

      III.   Was a sentence of total confinement           for   technical
             probation violations excessive?

Appellant’s brief at 4 (unnecessary capitalization deleted).

      This is an appeal from a sentence imposed after the court revoked

probation. This Court “can review the validity of the revocation proceedings,

the legality of the sentence imposed following revocation, and any challenge

to the discretionary aspects of the sentence imposed.” Commonwealth v.

Wright, 116 A.3d 133, 136 (Pa.Super. 2015) citing Commonwealth v.

Cartrette, 83 A.3d 1030, 1033 (Pa.Super. 2013) (en banc).

      Appellant’s first issue implicates the validity of the VOP proceeding.

The trial court and the parties agree that a criminal defendant who declares

                       _______________________
(Footnote Continued)

advise Appellant of his right to file a post-sentence motion and to appeal,
and the timing of the exercise of those rights, as required by Pa.R.Crim.P.
704(C)(3), an administrative breakdown occurred that excused the timely
filing of the notice of appeal. See Commonwealth v. Patterson, 940 A.2d
493 (Pa.Super. 2007) (citing cases).



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his intention to represent himself must be colloquied on the record by the

court to demonstrate his appreciation of his right to counsel, that counsel

will be provided at no cost if he cannot afford counsel, that he has a right to

waive counsel, but that there are risks attendant to the waiver. That right

attaches at every stage of a criminal proceeding where substantial rights

may be affected, including at a probation violation hearing.       Mempa v.

Rhay, 389 U.S. 128 (1967) (holding counsel must be afforded at a

probation revocation); Pa.R.Crim.P. 708(B)(1). The content of the on-the-

record colloquy is set forth in Pa.R.Crim.P. 121.

         Appellant appeared without counsel and the VOP court did not conduct

an on-the-record colloquy prior to the hearing to determine whether

Appellant knowingly and intelligently was waiving his right to counsel.

Appellant alleges that the trial court’s waiver colloquy after he had been

found in violation of his probation and sentenced constituted reversible

error.      He relies upon this Court’s decision in Commonwealth v.

Patterson, 931 A.2d 710, 715 (Pa.Super. 2007), in support of his

contention that the waiver colloquy must be conducted prior to allowing a

defendant to proceed pro se.

         The trial court maintained that its post hoc inquiry into Appellant’s

understanding and intent was sufficient. The Commonwealth concedes,

however, that a colloquy should have been conducted prior to commencing

the hearing and certainly prior to questioning Appellant about the allegations

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that gave rise to the violation. Nonetheless, the Commonwealth attempts to

excuse this deficiency by recasting the events.    It suggests that Appellant

made admissions that negated the need for a hearing, i.e., that a hearing

did not occur, and that Appellant could have belatedly chosen after the

colloquy to seek assistance of counsel and proceed with a hearing on the

violation.   The Commonwealth posits that Appellant arguably would have

understood that he could have requested counsel and a new hearing after he

received the colloquy.      In an abundance of caution, however, the

Commonwealth agrees that the case should be remanded for a new

probation revocation hearing.

      We agree that relief is due on this issue.   A defendant is entitled to

counsel “at every stage of a criminal proceeding where substantive rights of

the accused may be affected.”     Commonwealth v. Johnson, 828 A.2d

1009 (Pa. 2003). Although the full panoply of rights due a defendant in a

criminal trial are not applicable at a VOP hearing, the United States Supreme

Court held in Mempa, supra, that counsel must be afforded at such a

proceeding.    Our own criminal rules provide that probation shall not be

revoked unless there has been “a hearing held as speedily as possible at

which the defendant is present and represented by counsel[.]” Pa.R.Crim.P.

708(B)(1).

      In Patterson, supra, we vacated judgment of sentence on a

probation violation and remanded for a hearing to determine the defendant’s

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representation where he appeared at a post-sentence hearing challenging

revocation without counsel and the court proceeded without conducting a

colloquy. In that case, the defendant had admitted to violating his probation

based upon two new convictions and was sentenced to imprisonment. His

counsel filed a motion opposing revocation of probation based on the fact

that the defendant allegedly had completed his previous sentences. Counsel

then sought to withdraw, and the court conducted a hearing on that motion.

The defendant indicated at that hearing that he would seek other counsel for

the hearing on the probation revocation, and counsel was permitted to

withdraw.   When the defendant appeared at the revocation hearing, he

advised the court that he had not received notice of the hearing and that he

was still in the process of engaging new counsel. The court asked whether

he was aware of his right to court-appointed counsel. Appellant responded

in the affirmative but declined appointment of counsel. At that juncture, the

trial court proceeded to hear evidence regarding the defendant’s prior

sentences, determined that his sentences for prior convictions had not

expired, found him to be in violation of probation, and sentenced him to two

to four years imprisonment.

     On appeal, this Court found that the brief colloquy, even when

combined with the colloquy from an earlier hearing, was insufficient to

satisfy the standards for waiver of counsel. The defendant was not asked

whether he understood the permissible range of sentence, or the risks in

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failing to assert rights in a timely manner. We concluded that he proceeded

without counsel simply because he was there and had some knowledge of

the arguments he wished to advance. We vacated the sentence, remanded

for a hearing, and directed the VOP court that, if the defendant requested

pro se status, “the trial court shall conduct a full colloquy on the record at

the new sentencing hearing to ensure that his request is knowing,

intelligent, and voluntary.” Id. at 716.

      At the outset of the instant proceeding, the VOP court took no notice

that Appellant did not have counsel or ask Appellant whether he intended to

waive his right to counsel and proceed pro se.      The court conducted the

hearing, and only after Appellant was found to have violated his probation

and was sentenced to a term of imprisonment, the Commonwealth belatedly

raised the issue of a waiver colloquy. The trial court agreed that a colloquy

was probably necessary and proceeded to conduct one on the record.

      That Appellant did not understand the nature of the proceeding and

the permissible range of sentence is clear from his response to the court’s

final question “And you still want to proceed by yourself?” N.T. Probation

Revocation Hearing, 5/23/16, at 8.     Appellant responded, “For an M3 and

summary, yes[,]” an obvious reference to his underlying convictions, not to

the probation violation and revocation.

      This was a criminal proceeding where Appellant was entitled to

counsel, he appeared pro se, and there was no effective waiver of counsel.

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The Commonwealth’s half-hearted attempt to suggest that Appellant’s

admissions obviated the need for a hearing, and that no hearing occurred, is

belied by the record. Moreover, the Commonwealth’s assertion that

Appellant would have understood, after the belated colloquy, that he could

still seek counsel and obtain a new hearing is untenable. The court did not

offer Appellant that opportunity and his probation already had been revoked

and sentence imposed. In light of the totality of circumstances, we find the

after-the-fact colloquy ineffectual and that Appellant’s purported waiver of

counsel was not knowing and intelligent. The VOP judgment of sentence

must be vacated and the matter remanded for a new VOP hearing.

      Appellant also contends that, in addition to the ineffective waiver of his

right to counsel, the evidence was insufficient to support the probation

violation and that he is entitled to discharge.   Were he correct, we would

address Appellant’s sufficiency of the evidence arguments. However, even

assuming arguendo that the evidence was insufficient, the proper remedy is

not discharge but to vacate the revocation which we have already ordered.

      In Commonwealth v. Mullins, 918 A.2d 82 (Pa. 2007), our Supreme

Court distinguished a probation violation from the situation where a

conviction is overturned due to insufficient evidence. In the latter scenario,

the Double Jeopardy Clause bars retrial.       However, the double jeopardy

considerations present in the context of a retrial are not present in the

probation revocation scenario.    Our High Court noted that this Court had

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“consistently remanded for new VOP hearings when probation revocations

were    vacated   due     to   insufficient    evidence.”   Id.   at   85   (citing

Commonwealth         v.    Sims,      770      A.2d   346    (Pa.Super.     2001),

Commonwealth v. Homoki, 605 A.2d 829 (Pa.Super. 1992), and

Commonwealth v. Maye, 411 A.2d 783 (Pa.Super 1979), all reversing

probation revocation and remanding for new revocation hearing because

Commonwealth offered insufficient competent evidence). It reaffirmed that

precedent, and reiterated that the purpose of a VOP hearing is “to establish

to the satisfaction of the court that granted probation, that the individual’s

conduct warrants continuing him as a probationer.” Id. at 86. The Court

continued, “Even where the VOP hearing record is insufficient to sustain

revocation of probation, this purpose should not be frustrated – the court

that granted probation should not be precluded from determining whether

probation remains the proper course only because the Commonwealth failed

to include certain formalities in the record.” Id.

       Since we are vacating judgment of sentence and remanding for a new

VOP hearing based on the failure of the trial court to obtain a knowing and

intelligent waiver of Appellant’s right to counsel prior to the hearing, we do

not reach the issues of the sufficiency of the evidence and excessive

sentence.

       Judgment of sentence vacated and case remanded for a new VOP

hearing. Jurisdiction relinquished.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/15/2017




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