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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                          :
DAVID WAYNE FAUST,                        :         No. 1374 EDA 2019
                                          :
                         Appellant        :


      Appeal from the Judgment of Sentence Entered November 15, 2018,
                 in the Court of Common Pleas of Bucks County
                Criminal Division at No. CP-09-CR-0000512-2018


BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 Filed: March 18, 2020

        David Wayne Faust appeals pro se from the November 15, 2018

judgment of sentence1 entered in the Court of Common Pleas of Bucks County

following his entry of guilty pleas to one count each of theft by failure to make

required disposition of funds received, deceptive or fraudulent business

practice, and identity theft.2 The trial court imposed an aggregate sentence

of 6½ to 13 years of incarceration and ordered restitution in the amount of




1 Appellant filed his pro se appeal from the March 22, 2019 order denying his
post-sentence motion. In the criminal context, however, an appeal properly
lies from the judgment of sentence and not from an order denying
post-sentence motions. See Commonwealth v. Dreves, 839 A.2d 1122,
1125 n.1 (en banc). We have, therefore, amended the caption to reflect that
this appeal is from the November 15, 2018 judgment of sentence.

2   18 Pa.C.S.A. §§ 3927(a), 4107(a)(2), and 4120(a), respectively.
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$304,025. For the reasons that follow, we reinstate appellant’s direct appeal

rights nunc pro tunc and remand with instructions.

      The record reflects that appellant, a then-licensed funeral director and

owner of Faust Funeral Home, was charged with numerous offenses that

occurred between 1999 and 2017 and involved 54 victims.                All victims

purchased pre-paid funerals from appellant.         With respect to some of the

victims, appellant forged a physician’s signature on false death certificates in

order to obtain funds placed in escrow for pre-paid funerals and then used

those funds for his own benefit. As concerns other victims, appellant never

placed the pre-paid funeral funds into escrow, but merely cashed the checks

and used the money for his own benefit.          An investigation into appellant’s

activities resulted in appellant’s being charged with numerous theft-related

offenses at two separate docket numbers; specifically, No. CP-09-CR-

0000512-2018       (“Docket       512”)    and   No.    CP-09-CR-0000513-2018

(“Docket 513”).3

      The    record    reflects     that    appellant    was    represented    by

Jeffrey Allen Sigman, Esq., at the initiation of the criminal proceedings against




3 The record reflects that appellant entered guilty pleas at Docket 513 to
forgery (unauthorized act in writing), 18 Pa.C.S.A. § 4101(a)(2); tampering
with public records or information, 18 Pa.C.S.A. § 4911(a)(1); identity theft,
18 Pa.C.S.A. § 4120(a); impersonating a holder of a professional license,
18 Pa.C.S.A. § 4913(a)(1); theft by deception, 18 Pa.C.S.A. § 3922(a)(1);
and forgery (uttering a forged writing), 18 Pa.C.S.A. § 4101(a)(3). Appellant’s
aggregate sentence at Docket 512 and Docket 513 was 9 years to 18 years of
imprisonment.


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appellant at Docket 512 and Docket 513 through the June 5, 2018 guilty plea

proceedings. Nothing in the records at Docket 512 or Docket 513 indicates

that Attorney Sigman moved to withdraw his representation. On August 3,

2018, however, Steven Michael Jones, Esq., entered his appearance on

appellant’s behalf at Docket 512 and Docket 513. Attorney Jones appeared

with appellant at appellant’s November 15, 2018 sentencing on both dockets.

On November 26, 2018,4 Attorney Jones filed motions for modification of

sentence at both dockets. On December 7, 2018,5 the trial court entered an

order at Docket 512 reflecting the agreement between the Commonwealth

and Attorney Jones that Count 3 at Docket 512 would be modified to an

18 to 36-month sentence of incarceration to run consecutive to Count 1 of

that docket. On March 22, 2019, the trial court entered an order denying

appellant’s post-sentence motion to modify sentence at Docket 512.          The

certified record before us indicates that the trial court did not enter an order

with respect to the disposition of appellant’s post-sentence motion at

Docket 513. Therefore, pursuant to Pa.R.Crim.P. 720(B)(3)(a), that motion

was   denied    by   operation   of   law   on   March    25,   2019.      See




4 We note that the post-sentence motions were timely filed because the
tenth day of the ten-day period for the filing of a post-sentence motion
provided in Pa.R.Crim.P. 720(A)(1) fell on a Sunday. See 1 Pa.C.S.A. 1908
(omitting Saturday, Sunday, and legal holidays from filing time
computations).

5We note that the order is dated December 6, 2018, but was entered on the
docket on December 7, 2018.


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Pa.R.Crim.P. 720(B)(3)(a) (providing post-sentence motion is denied by

operation of law if trial court fails to decide or grant extension within

120 days).

      The record further reflects that appellant filed a pro se notice of appeal

on April 24, 2019, from Docket 512.6 In the notice of appeal, appellant states

that he received the order denying his post-sentence motion on April 16,

2019, which late notice prohibited him from obtaining a copy of the docket

sheet for inclusion with the notice of appeal. (See appellant’s pro se notice

of appeal at footnote “*”.) Additionally, appellant attached to his notice of

appeal a copy of correspondence from Attorney Jones dated March 27, 2019,

advising appellant that the trial court denied his post-sentence motion, that

appellant has 30 days to appeal, and that Attorney Jones “will not be

representing [appellant] in an appeal,” and wishing appellant “luck.”

(Appellant’s notice of appeal, 4/24/19 at attachment.) Appellant also attached

a copy of the envelope that Attorney Jones’s letter was allegedly mailed in

that indicates Attorney Jones sent this letter to a post office box in

St. Petersburg, Florida, that is used to process inmate mail from senders other

than the inmate’s counsel or a court.      Nothing in the certified records at

Docket 512 and Docket 513 indicates that Attorney Jones moved to withdraw




6 We note that the trial court then ordered appellant to file a statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant,
pro se, timely complied. Thereafter, the trial court filed a Rule 1925(a)
opinion.


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his representation of appellant, much less that the trial court granted him

leave to withdraw. Therefore, the records demonstrate that Attorney Jones,

appellant’s privately retained counsel, actively represented appellant through

sentencing and the filing of post-sentence motions on Docket 512 and

Docket 513. Before the time expired for filing notices of appeal, however,

Attorney Jones informed appellant that he will not be representing appellant

on direct appeal.

      Appellant has now filed a pro se brief raising a discretionary aspect of

sentencing claim with respect to the sentences imposed on November 15,

2018, at Docket 512 and Docket 513.        The trial court declined to address

appellant’s claim at Docket No. 513 because appellant failed to take an appeal

from that docket.   (Trial court opinion, 7/29/19 at 1.)     For the following

reasons, we reinstate appellant’s direct appeal rights at Docket 512 and

Docket 513 nunc pro tunc and remand for further proceedings consistent

with this memorandum.

            [C]riminal defense counsel may not unilaterally
            abandon a client.     Pa.R.Crim.P. 120(C) (formerly
            Pa.R.Crim.P. 302(b)). Under the applicable rules,
            once counsel enters his appearance, he may not
            withdraw his appearance except by leave of court. Id.
            Counsel is required under this rule to file a motion to
            withdraw and serve it upon the court, the attorney for
            the Commonwealth and the client. Id. Leave to
            withdraw shall be granted, unless the interests of
            justice otherwise require. Id.

            This Court previously addressed the gravity of
            unilateral, informal withdrawal as counsel, and we
            reiterate that analysis:


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               The     importance     of    the   express
               requirement of formal allowance of
               withdrawal is well illustrated here. By
               informally withdrawing, counsel left
               appellant to seek new private counsel,
               assignment of court appointed counsel, or
               to pursue direct appeal pro se during the
               critical 30-day period during which
               appellant was required to perfect or waive
               a direct appeal.     Had counsel sought
               allowance of the court to formally
               withdraw as counsel, the trial court could
               have taken steps necessary to prevent the
               procedural default which occurred in this
               case by having counsel file notice of
               appeal before withdrawing, by assigning
               court appointed counsel, or by ensuring
               that appellant’s notice of appeal would be
               effectual.

               We in no way suggest that counsel was
               required to continue as counsel in this
               matter in perpetuity. For a variety of
               reasons, from ethical to financial
               concerns, counsel properly may seek to
               withdraw from representing a client.
               Regardless of the legitimacy of counsel’s
               grounds for withdrawal as counsel, formal
               leave of court is nonetheless clearly and
               unequivocally required before counsel
               may be deemed to have withdrawn as
               counsel.

          Commonwealth v. Keys, 397 Pa. Super. 453, 580
          A.2d 386, 387 (Pa. Super. 1990).

          In Keys, the appellant’s privately retained trial
          counsel withdrew without leave of court at the
          post-sentencing, but pre-appeal, stage of the case.
          Id. 580 A.2d at 386-87. As a result of trial counsel’s
          abandonment, the appellant filed a defective pro se
          notice of appeal, which was quashed. Id. at 387. We
          condemned the unauthorized withdrawal of trial


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            counsel, holding when counsel of record fails to
            withdraw formally and properly as counsel, after
            sentencing but before the expiration of the time for
            filing of notice of appeal, yet counsel nonetheless
            ceases active representation, the appellant’s loss of
            appellate rights will be deemed a procedural default
            attributable to counsel of record, but not to the
            appellant. Id. 580 A.2d at 386. As formal withdrawal
            is a procedural safeguard, we cannot imagine a reason
            that counsel for a criminal defendant who pleads
            guilty should be held to a lesser standard than counsel
            would be if he represents a defendant who is tried and
            convicted. Thus, we apply the principles enunciated
            in Keys, supra, as equally controlling in the present
            case.

Commonwealth v. Qualls, 785 A.2d 1007, 1010-1011 (Pa.Super. 2001).

      Here, nothing in the records at Docket 512 and Docket 513 indicates

that Attorney Jones sought leave of court to withdraw his representation of

appellant. Rather, Attorney Jones merely sent a letter to appellant stating

that he “will not be representing [appellant] in an appeal.” (Appellant’s pro se

notice of appeal, 4/24/19 at attachment.) By ceasing to represent appellant

without leave of court, Attorney Jones rendered ineffective legal assistance

that resulted in per se prejudice to appellant by denying appellant his right

to directly appeal his convictions at Docket 513. See Qualls, 785 A.2d at

1011. Moreover, this is not a case where the appellant waived his right to

counsel and elected to proceed pro se.        This is a case where appellant

proceeded pro se out of necessity. As such, the character and content of the

issue appellant raised at Docket 512 may have been different had appellant

had the benefit of counsel. Accordingly, we reinstate appellant’s rights to a



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direct appeal nunc pro tunc at Docket 512 and Docket 513 and direct

Attorney Jones to file notices of appeal at both dockets within 30 days of the

date of filing this memorandum. Attorney Jones may then properly seek to

withdraw in the trial court.   The trial court may then decide the issue of

appellant’s representation by requiring appellant to secure private counsel,

appoint counsel finding eligibility for same, or allow appellant to represent

himself following a Grazier7 colloquy. The remand may change the content

and character of these appeals substantially, requiring the issuance of new

Rule 1925(b) orders and Rule 1925(a) opinions, as well as the preparation of

new briefs that may necessitate discussion of new issues raised by counsel or

by appellant himself.     Therefore, we remand this case for proceedings

consistent with this memorandum, and we relinquish our jurisdiction.

       Case remanded for the filing of direct appeals at No. CP-09-CR-

0000512-2018 and No. CP-09-CR-0000513-2018 nunc pro tunc and

proceedings consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 3/18/20




7   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


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