J-A05028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CHRISTIAN FONT,

                            Appellant                No. 1544 EDA 2014


          Appeal from the Judgment of Sentence entered April 22, 2014,
                in the Court of Common Pleas of Monroe County,
              Criminal Division, at No(s): CP-45-CR-0002553-2013


BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                            FILED MARCH 09, 2015

        Christian Font (“Appellant”) appeals from the judgment of sentence

imposed after he pled guilty to one count of receiving stolen property. 1 We

affirm.

        Appellant stole a cell phone from an employee of the Game Stop store

at the Stroud Mall in Stroud Township, Pennsylvania, after the employee

placed the telephone down to charge it.         Affidavit of Probable Cause,

8/12/13. Appellant then sold the cell phone for $126.94 at another Game

Stop store located at the Bartonsville Plaza in Stroud Township.         Id.

Appellant was arrested and charged with one count of receiving stolen

property.

____________________________________________


1
    18 Pa.C.S.A. § 3925.
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     On February 6, 2014, Appellant entered a guilty plea, and following a

hearing on April 22, 2014, the trial court sentenced him to five (5) to

twenty-three   (23)    months   of   imprisonment    in   the   Monroe   County

Correctional Facility. No post-sentence motions were filed. Appellant filed a

timely notice of appeal.   Both Appellant and the trial court have complied

with Pa.R.A.P. 1925.

     Appellant presents six issues for our review:

     1. Whether the [trial court’s] denial of the Appellants
        continuance motion to substitute private counsel for the
        appointed public defender constituted a violation of the
        Appellant’s right to counsel and the Fifth, Sixth and
        Fourteenth Amendments to the United States
        Constitution and Article 1, Section 9 of the Pennsylvania
        Constitution?

     2. Whether the [trial court] abused its discretion in
        denying the Appellant’s continuance motion to
        substitute private counsel for the appointed public
        defender?

     3. Whether the [trial court] erred in failing to consider the
        many factors which are required for the [trial court] to
        weigh before ruling on the Appellant’s motion for a
        continuance to permit the substitution of counsel?

     4. Whether there existed an irreconcilable conflict,
        disagreement or difference of opinion between
        [Appellant] and his Public Defender as to the conduct of
        the trial defense and sentencing?

     5. Did the [trial court] err in increasing Appellant’s
        sentence of incarceration by placing him into the
        aggravated range under the sentencing guidelines?




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      6. Considering the sentencing code as a whole, was the
         [trial court’s] deviation from the sentencing guidelines
         unreasonable and excessive?


Appellant’s Brief at 4-5.

      Appellant’s first four issues pertain to the trial court’s denial of his

request for a continuance to obtain new counsel. Appellant’s Brief at 11-17.

Because Appellant’s first four issues are interrelated, we will address them

together.

      Appellant asserts that the trial court erred in denying his request for a

continuance at the commencement of the sentencing hearing to permit the

Monroe County Public Defender’s office to withdraw its appearance, and for

Appellant to obtain private counsel. Appellant’s Brief at 11-22.

      We initially recognize that we will reverse a trial court's denial of a

motion for a continuance only upon a showing of abuse of discretion. Abuse

of discretion is not merely an error of judgment, but rather is a manifestly

unreasonable judgment, a result of prejudice, bias or ill-will, or a

misapplication of law. Commonwealth v. Thomas, 879 A.2d 246, 261 (Pa.

Super. 2005) (citations omitted).   Our courts have made clear that “[t]he

right to counsel is guaranteed by both the Sixth Amendment to the United

States Constitution and by Article I, Section 9 of the Pennsylvania

Constitution ... [T]hese constitutional rights entitle an accused to choose at

his own cost and expense any lawyer he may desire.          [H]owever ... the

constitutional right to counsel of one's choice is not absolute.     It must be

exercised   at   a   reasonable   time   and   in   a   reasonable    manner.”

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Commonwealth v. Antidormi, 84 A.3d 736, 746, n.8. (Pa. Super. 2014)

(citations and internal quotations omitted).

      The right of a defendant to choose his own counsel must be
      weighed against and may be reasonably restricted by the state's
      interest in the swift and efficient administration of criminal
      justice. A defendant clearly cannot be permitted to utilize his
      right to choose his own counsel so as unreasonably to clog the
      machinery of justice and hamper and delay the state in its
      efforts to do justice with regard both to him and to others whose
      rights to a speedy trial may thereby be affected.

Thomas, 879 A.2d at 261 (citations and internal quotations omitted).

“[T]he right to counsel does not include the right to counsel of one's choice.”

Commonwealth v. Philistin, 53 A.3d 1, 16 (Pa. 2012).

      Here, the trial court explained:

      [Appellant’s] sentencing was scheduled for Tuesday, April 22,
      2014. At the start of [Appellant’s] sentencing, the following
      exchange took place between [Appellant’s] current, private
      counsel, Attorney Andrew Katsock and the [trial court]:

            Mr. Katsock:      Your Honor, [Appellant] is represented
                              by the Public Defender’s Office.       He
                              contacted me this weekend about
                              possibly representing him as private
                              counsel.     He told me he had this
                              sentencing today, obviously I haven’t
                              seen his file, I haven’t seen the PSI, he
                              does want to exercise his right to private
                              counsel, so I would respectfully request a
                              continuance of sentencing.

            Trial Court:      No, he’s got the right to private counsel,
                              but he doesn’t have the right to interrupt
                              Court proceedings by obtaining counsel
                              at the eleventh hour, no. We’re going to
                              go forward with sentencing today.


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            Mr. Katsock:      That’s fine, Your Honor, then I guess the
                              public defender will still continue to
                              handle this matter.

      The [trial] court did not deny [Appellant] the right to hire
      counsel of his choice, but rather only denied [Appellant’s]
      request to continue sentencing, an oral request which was made
      at the time of sentencing. Sentencing in this case occurred on
      April 22, 2014, a date which was set by Order dated February 6,
      2014. [Appellant] was apprised of the April 22, 2014 sentencing
      hearing at the time of his guilty plea on February 6, 2014. Thus,
      [Appellant] had more than two and one half months in which to
      retain private counsel of his choice. No reason was presented by
      [Appellant] as to why he did not or was unable to retain counsel
      prior to April 22, 2014. The [trial] court’s denial of his request
      for a continuance of the April 22, 2014 sentencing so that he
      could have more time to retain private counsel was not an abuse
      of discretion, nor did it deprive [Appellant] to counsel of his
      choice. Rather, it was [Appellant’s] failure to timely retain
      counsel of his choosing that resulted in Attorney Katsock not
      representing him at the time of sentencing.

            To the extent that [Appellant] argues that [the trial
      court’s] denial of [Appellant’s] request for a continuance of
      sentencing constitutes an order denying Attorney Katsock from
      representing Appellant, [the trial court disagrees]. Attorney
      Katsock specifically stated that [Appellant] contacted him during
      the weekend of April 18, 2014 about possibly representing him.
      Attorney Katsock made no affirmative statement that he was in
      fact actually representing [Appellant]. ... Attorney Katsock
      certainly did not file an Entry of Appearance with the Clerk of
      Courts, which is confirmed by a review of the [trial court’s]
      docket.

Trial Court Opinion, 7/18/14, at 5-6.

      We find no abuse of discretion by the trial court. Our review of the

record confirms that although Appellant had over two months between the

entry of his February 6, 2014 guilty plea and the pre-scheduled April 22,

2014 sentencing hearing to secure private counsel, Appellant did not



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attempt to do so until the weekend before the April 22, 2014 sentencing

hearing. Moreover, Attorney Katsock was equivocal about whether Appellant

intended to retain him, stating at the sentencing hearing that Appellant had

contacted him about “possibly representing him as private counsel.” N.T.,

4/22/14, at 2 (emphasis added). Also, when the trial court denied Attorney

Katsock’s request for a continuance, stating that Appellant did not “have the

right to interrupt Court proceedings by obtaining counsel at the eleventh

hour”, Attorney Katsock did not object, and instead stated, “That’s fine, Your

Honor, then I guess the public defender will still continue to handle this

matter.”   Id.   In sum, Appellant had ample time to retain private counsel

and did not do so.       The trial court, in considering the request for a

continuance and denying it, properly weighed Appellant's right to counsel of

his choice against the interest of the efficient administration of justice.

      Our review of the record further reflects that Appellant had caused a

previous delay in this case. On December 4, 2013, the trial court scheduled

Appellant’s guilty plea hearing for January 29, 2014.         Trial Court Order,

12/4/13.    However, on the date of the scheduled guilty plea hearing,

Appellant failed to appear, and the trial court was compelled to issue a

bench warrant for Appellant’s arrest to secure his presence in court. Trial

Court Order, 1/29/14, at 1.

      Our review of the record also reveals that Attorney Katsock never

entered his appearance prior to the April 22, 2014 sentencing hearing, and




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the only “Praecipe to Enter Appearance” of record was that filed by the office

of the public defender on November 1, 2013.

      Appellant nonetheless asserts that after the trial court denied his

request for a continuance, and commenced the sentencing proceedings, the

trial court was made aware of a conflict between Appellant and his public

defender, affirming at that juncture that Appellant should have been

represented by private counsel. Specifically, in the course of the sentencing

hearing, the following exchange occurred:


      Public Defender: [Appellant] indicated that he still is actively
                       participating in a methadone clinic ... [and the trial
                       court] indicated to him that you wanted to see him
                       wean himself off the methadone...

                                                ***
      Trial Court:      My experience sitting on this side of the bench, with
                        drugs being such a huge part of the criminal culture,
                        is I see 90 percent of cases where there’s abuse of
                        the methadone...

      Public Defender: No, I understand Judge, and I agree with you in that
                       respect to some degree. I do believe that it’s a
                       continuing issue and I don’t know if he’ll ever, he’s
                       obviously never getting off the methadone most
                       likely, I don’t understand how that’s a substitute. I
                       also don’t understand how that’s beneficial to him.

                                                ***
                        I explained everything to [Appellant].   I’m not
                        asking for a standard range sentence, I think
                        an aggravated range sentence based upon the
                        factors listed is appropriate. I explained that
                        to   [Appellant],    he    disagrees   with  me
                        somewhat, but when you test positive for
                        marijuana and you admit to taking morphine pills


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J-A05028-15


                            you did yourself no favors when you come before the
                            bench.

N.T., 4/22/14, at 3-5 (emphasis added).

       Appellant maintains that the public defender argued against his

wishes, and that when the public defender made the trial court aware of a

conflict between himself and Appellant with regard to the recommended

sentence, the trial court should have conducted an inquiry to determine the

nature of the conflict, or allowed private counsel to represent Appellant.

Again, upon review of the record, we are unpersuaded by Appellant’s

argument.

       Although Appellant asserts that the public defender should have

advocated for a lesser sentence, and that the conflict prevented the public

defender from representing Appellant’s interests, the record reflects that the

public defender was candid in advancing Appellant’s position to the trial

court, and informed the court of Appellant’s desire for a lesser sentence.

Therefore, the trial court was apprised of Appellant’s position and fully

informed by counsel of Appellant’s wishes prior to imposing Appellant’s

sentence.2

       Moreover, at the sentencing hearing, the public defender advocated

strenuously on Appellant’s behalf when the trial court indicated that it was


____________________________________________


2
  The guidelines recommended a sentence of restorative sanctions to two (2)
months of imprisonment in the standard range, and five (5) months of
imprisonment in the aggravated range.



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considering a sentence of State Intermediate Punishment that would result

in five (5) to seven (7) months of imprisonment at a state correctional

institution. N.T., 4/22/14, at 11. The public defender asserted that a five

(5) month sentence in the Monroe County Correctional Facility would be

more appropriate under the circumstances.           Id.   Furthermore, the public

defender explained that the reason he was seeking an aggravated range

sentence was because Appellant tested positive for controlled substances

after he pled guilty, and while the pre-sentence investigation report was

being prepared, and that a request for a standard range sentence was

incompatible with those facts.          Id. at 3.   Because of Appellant’s recent

positive drug test for marijuana, and because Appellant “admitted to taking

morphine pills”, the public defender explained that an aggravated sentence

of five (5) months imprisonment in a county facility would be appropriate.

Id. at 3-5.3

       In concluding his remarks, the public defender stated, “[Appellant]

understands he’s in the wrong here and he accepts his responsibility.

____________________________________________


3
   Appellant’s appellate counsel argues that Appellant failed his drug test
because he was participating in methadone therapy to rehabilitate himself,
resulting in a positive drug test. Appellant’s Brief at 19. Appellate counsel
argues that the public defender and trial court improperly relied on
Appellant’s use of methadone therapy for imposition of an aggravated range
sentence. However, the sentencing transcript reflects that Appellant tested
positive for marijuana and admitted to taking morphine pills, and this Court
is bound by the facts contained in the certified record. See N.T., 4/22/14,
at 5.



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J-A05028-15



[Appellant], is there anything that you’d like to say in addition to that?” Id.

at 6. Appellant responded simply, “No.” Id.

      Again, upon careful review, we find no merit to Appellant’s argument

that the trial court improperly “ignored” an “irreconcilable conflict” between

Appellant and his counsel. Appellant’s Brief at 13, 15. Rather, we conclude

that the trial court (which also had the benefit of a pre-sentence

investigation report and had reviewed the sentencing guidelines) was fully

informed by trial counsel of Appellant’s position. The trial court's denial of

Appellant’s motion for a continuance was not unreasonable given all of the

circumstances surrounding the request, and we find no abuse of discretion

by the trial court relative to Appellant’s first four issues.

      In his final two issues, Appellant challenges the discretionary aspects

of his sentence.       This Court has explained that “[a] challenge to the

discretionary aspects of a sentence must be considered a petition for

permission to appeal, as the right to pursue such a claim is not absolute.”

Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014)

(citations omitted).

      To reach the merits of a discretionary sentencing issue, we
      conduct a four-part analysis to determine: (1) whether appellant
      has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence, Pa.R.Crim.P. [708];
      (3) whether appellant's brief has a fatal defect, Pa.R.A.P.
      2119(f); and (4) whether there is a substantial question that the
      sentence appealed from is not appropriate under the Sentencing
      Code, 42 [Pa.C.S.A.] § 9781(b).



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J-A05028-15



Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

      Our review of the record reveals that Appellant failed to raise his

discretionary sentencing claims at his sentencing hearing or in a post-

sentence motion. Because such challenges to a court's sentencing discretion

must be raised during sentencing or in a post-sentence motion in order for

this Court to consider granting allowance of appeal, and Appellant has failed

to appropriately preserve his discretionary claims, they are waived.

      For the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2015




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