J    -S62029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

     COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA

                  v.


     BRIAN TURNER

                       Appellant              :   No. 364 EDA 2018

            Appeal from the Judgment of Sentence December 20, 2017
      In the Court of Common Pleas of Northampton County Criminal Division
                        at No(s): CP-48-CR-0002115-2017

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

MEMORANDUM BY McLAUGHLIN, J.:                         FILED JANUARY 07, 2019

         Brian Turner appeals from the judgment of sentence entered following

his convictions for driving under the influence of alcohol ("DUI"), driving while

operating privilege suspended or revoked, and failure to use hazard warning

signals.' Turner argues the court violated his constitutional right to counsel.

We vacate the judgment of sentence and remand for a new trial.

         The facts underlying the charges are not relevant to our disposition. In

short, Pennsylvania State Trooper Michael Hodgskin discovered Turner on

February 5, 2017, asleep in his car on the side of the road around 4 a.m. After

rousing Turner, having Turner perform field sobriety tests, and attempting to

have him perform       a   breathalyzer test, Officer Hodgskin arrested Turner for




1-   See 75 Pa.C.S.A. §§ 3802(a)(1), 1543(a), and 4305, respectively.
J   -S62029-18



DUI. Turner's license was suspended at the time of his arrest. See N.T.,

12/5/17, 5-19.

        Officer Hodgskin filed         a   criminal complaint against Turner, and in June

2017, Turner appeared in magisterial district court. He signed forms waiving

his right to counsel in that court and waiving a preliminary hearing.

        Turner's first appearance before the trial court was at his formal

arraignment on October 12, 2017. Turner told the court that he was

represented by an attorney in Harrisburg. N.T., 10/12/17, at 2-3. Turner

acknowledged that the attorney had not entered his appearance, but stated

that it was because the attorney had been on vacation. Id. Turner said that

an unidentified person in the courthouse had advised him to                 "just come here
today and plead not guilty or whatever and make sure I'm here with [the

attorney]" on the trial date. Id. at              3. The   trial judge replied, "I'm going to

mark on this list that you don't have an attorney because he hasn't formally

entered his appearance.    .   .   .   Until he does, the notices are going to go to you."

Id. at 3-4.   The court did not offer Turner court -appointed counsel, conduct              a

waiver colloquy, or warn him that appearing without counsel in the future

risked forfeiture of his right to counsel.

        Turner appeared before              a   different judge in December 2017, for        a

pretrial conference. No attorney appeared at the conference on Turner's

behalf. The prosecutor introduced Turner to the court as "a pro se individual."

N.T., 12/4/17, at 2 (italics added). Turner did not say otherwise, and the court

did not inquire into the status of Turner's representation or conduct               a   waiver

                                                 - 2 -
J -S62029-18




colloquy. Nor did Turner ask for          a    continuance so retained counsel could

attend. The court proceeded with the pretrial conference, noting that Turner

was charged with      a   first offense DUI of general impairment and faced                     a

sentence of six -months' probation.           Id. at 2-4. Turner entered    a    plea of not

guilty. Id. at 4-5. The court set trial for the following day. Id. at 5.

       The next day, Turner appeared for trial unrepresented by counsel and

the trial began before the same judge as had presided at the pretrial

conference. The judge again did not offer Turner court -appointed counsel,

inquire into the status of Turner's representation, or conduct                       a   waiver

colloquy. Nor was there any discussion of whether Turner had forfeited his

right to counsel.

       A bench   trial then ensued with Turner representing himself. When the

Commonwealth moved to admit           a   video of the incident into evidence, Turner

objected that he had not been given            a   chance to view the video before trial.

Id. at 34-37.    The prosecutor responded that Turner had not asked to see it

and that if he had done so, the Commonwealth would have made                             a   copy

available.   Id. at 35-36. Turner argued that the court          had scheduled the trial

the day beforehand, and as      a   layperson, he should have been advised at the

pretrial conference that video evidence existed. Id. at 36. The court overruled

Turner's objection, stating, "Because you are not represented by                 a   lawyer in

this   matter, that's your choice. That has                  nothing   to   do       with     the

Commonwealth's obligation."         Id. at    37. Turner presented no evidence in his

defense, but argued his innocence.

                                              -3
J   -S62029-18



        The court found Turner guilty, and later sentenced him to              a   total of   3

days to 6 months in jail.2 Turner, still acting pro se, obtained leave from the

trial court to file   a   notice of appeal nunc pro tunc, and then filed this appeal.

Appellate counsel then entered his appearance.

        Turner, represented by private counsel on appeal, raises the following:

        I.     Whether [Turner] was denied his right to counsel as
               guaranteed under the Sixth Amendment to the Constitution
               of the United States and by Article 1 § 9 of the Pennsylvania
               Constitution when the trial court proceeded to try [Turner]
               as a pro se defendant after he informed the court he had
               consulted with legal counsel?
        II.    Whether [Turner] waived his right to trial counsel when he
               did not knowingly, intelligently, or voluntarily do so?

        III.   Whether [Turner] was denied his right to counsel as
               guaranteed under the Sixth Amendment to the constitution
               of the United States and Article 1 § 9 of the Pennsylvania
               Constitution and/or [Turner's] due process rights were
               violated where the trial court failed to conduct an on -the -
               record colloquy to determine whether [Turner] was
               knowingly, intelligently, and voluntarily waiving his right to
               counsel at trial?

Turner's Br. at 4-5 (suggested answers and answers below omitted). Although

Turner presents his question in three parts, he presents        a   singular argument:

that the trial court erred     in   trying him pro se without conducting   a   colloquy to




2   But see Commonwealth            v. Giron, 155 A.3d 635, 640 (Pa.Super. 2017)
(holding enhanced           penalties based on refusal of blood testing are
unconstitutional).


                                             -4
J   -S62029-18



ensure that Turner knowingly, intelligently, and voluntarily waived his right to

counsel. See Turner's Br. at 9-13.3

        The United States and Pennsylvania Constitutions provide                            a   right to

counsel for any criminal defendant facing                   a    sentence of imprisonment. See

Commonwealth v. Moody, 125 A.3d                                 1,   14    (Pa.   2015);4 see also

Pa.R.Crim.P. 122, Comment.                 It    is    the responsibility of        a   trial court to

determine whether          a   criminal defendant has waived his or her right to counsel

knowingly,       intelligently,      and        voluntarily.         See     Pa.R.Crim.P.       121(C);

Commonwealth v. Davido, 868 A.2d 431, 437-38                                (Pa. 2005). Because we

presume against the waiver of              a    constitutional right, we do not find waiver

where the record      is       silent. Commonwealth v. Phillips, 141 A.3d 512, 517

(Pa.Super.) (citing Commonwealth v. Monica, 597 A.2d 600, 603 (Pa.

1991)). "The record must show, or there must be an allegation and evidence

which shows, that an accused was offered counsel but intelligently and

understandingly rejected the offer. Anything less                     is   not waiver."   Id. (quoting
Monica, 597 A.2d at 603).


3 The trial court entered a statement pursuant to Rule 1925(a) of the
Pennsylvania Rules of Appellate Procedure, stating that the court would rely
on the record instead of filing an opinion. However, the court's reasoning does
"not already appear of record," and the court failed to "specify in writing the
place in the record where [the] reasons [for the order or the rulings or other
errors complained of] may be found." Pa.R.A.P. 1925(a)(1).

4 See also Commonwealth v. Johnson, 828 A.2d 1009, 1015 (Pa. 2003)
(stating right to counsel under Article I, § 9 of Pennsylvania Constitution is
coterminous with Sixth Amendment for determining when right attaches).


                                                      -5
J   -S62029-18



        Rule 121 of the Pennsylvania Rules of Criminal Procedure outlines the

information the court must elicit from the defendant to ensure      a   valid waiver

of counsel. See Pa.R.Crim.P. 121(A)(2).5 The court must determine whether

the defendant has waived the right to counsel regardless of the defendant's

financial eligibility for appointed counsel, and the failure to conduct   a   Rule 121



5
    Rule 121(A)(2) provides:

        To ensure that the defendant's waiver of the right to counsel is
        knowing, voluntary, and intelligent, the judge or issuing authority,
        at a minimum, shall elicit the following information from the
        defendant:
        (a) that the defendant understands that he or she has the right to
        be represented by counsel, and the right to have free counsel
        appointed if the defendant is indigent;
        (b) that the defendant understands the nature of the charges
        against the defendant and the elements of each of those charges;
        (c) that the defendant is aware of the permissible range of
        sentences and/or fines for the offenses charged;
        (d) that the defendant understands that if he or she waives the
        right to counsel, the defendant will still be bound by all the normal
        rules of procedure and that counsel would be familiar with these
        rules;
        (e) that the defendant understands that there are possible
        defenses to these charges that counsel might be aware of, and if
        these defenses are not raised at trial, they may be lost
        permanently; and
        (f) that the defendant understands that, in addition to defenses,
        the defendant has many rights that, if not timely asserted, may
        be lost permanently; and that if errors occur and are not timely
        objected to, or otherwise timely raised by the defendant, these
        errors may be lost permanently.
Pa.R.Crim.P. 121(A)(2).

                                        -6
J   -S62029-18



colloquy constitutes    per se reversible error. Commonwealth         v.   Clyburn, 42
A.3d 296, 300-01 (Pa.Super. 2012). A waiver of the right to counsel before             a

magisterial district judge does not constitute waiver in the Court of Common

Pleas. Rather, the trial court must conduct a new colloquy prior to proceedings

in    that court. See       Pa.R.Crim.P.       121(C);   see also id.,      Comment;

Commonwealth v. Johnson, 158 A.3d 117, 123 (Pa.Super. 2017).
         Here, Turner was charged with     a   misdemeanor DUI, which exposed him

to   a   potential sentence of six months' imprisonment. See 75 Pa.C.S.A.              §

3803(a)(1). He therefore had       a   constitutional right to counsel. Moody, 125

A.3d at 14. Although Turner waived this right for his preliminary hearing, the

trial court was obligated to conduct       a   waiver colloquy on the record prior to

proceeding to trial. Johnson, 158 A.3d at 123. Nonetheless, and even though

Turner informed the trial court during his formal arraignment that he was in

the process of obtaining representation, the court failed to conduct        a   colloquy,

either at the arraignment, the pretrial conference, or trial. The record               is

therefore silent as to whether Turner was aware of his right to counsel and            is

insufficient to establish that he knowingly, intelligently, and voluntarily waived

that right. See Phillips, 141 A.3d at 517.
         The Commonwealth argues that           a   waiver colloquy was unnecessary

because Turner forfeited his right to counsel. The Commonwealth contends

that Turner forfeited his right because he had the opportunity and financial
ability to seek counsel, but appeared in court without representation and did

not request    a   continuance in order to obtain representation. In support, the

                                           - 7 -
J   -S62029-18



Commonwealth cites Lucarelli, 971 A.2d at 1179, and Commonwealth v.

Wentz, 421 A.2d 796 (Pa.Super. 1980) (plurality).
        It   is   true that   a   court need not conduct     a   colloquy to ensure there was

a   knowing, intelligent, and voluntary waiver of the right to counsel where the

defendant has forfeited that right. See Commonwealth v. Staton, 120 A.3d

277, 286 (Pa. 2015). A criminal defendant may forfeit the right to counsel

only through           "extremely serious           misconduct"      or   "extremely dilatory
misconduct." Id. (citing Lucarelli, 971 A.2d at 1179).

        We disagree that Turner forfeited his right to counsel. His conduct did

not rise to the level of "extremely serious misconduct" or "extremely dilatory

misconduct." Id. The Commonwealth's citations to Lucarelli and Wentz are

unavailing. In Lucarelli, the defendant hired several attorneys over an eight -

month period, and obtained $20,000 from the court five weeks before trial

specifically for the purposes of obtaining representation, but had no excuse

for not having counsel at the time of trial. Lucarelli, 971 A.2d at 1180. The

Pennsylvania Supreme Court concluded the defendant's "extremely dilatory

misconduct" constituted             a   forfeiture of counsel. Similarly,   in   Wentz, the trial
court advised the defendant at his arraignment that he was not eligible for

court -appointed counsel and that he should obtain private counsel. 421 A.2d

at 798. The defendant nonetheless appeared at trial without counsel and

without an explanation other than that he had "requested 'free' counsel" and

gave no indication that he had taken reasonable steps to obtain private

counsel.     Id.    The court reiterated that he was not eligible for court -appointed

                                                  - 8 -
J -S62029-18




counsel. The defendant replied that he "didn't know any attorneys" in the area

but admitted that he had known the trial date for "weeks and weeks."          Id.   We

concluded that the court had not erred in requiring the defendant to proceed

without the assistance of counsel. We explained that otherwise,      a   'court wise'
criminal defendant could continually appear in court without counsel on the

date scheduled for his trial but refuse [to waive his right to counsel,] making

it impossible to proceed with his trial."    Id.   at 800.

      Here, Turner did not cause any delay in the proceedings or do anything

to risk   a   delay, much less engage in extremely dilatory conduct or extremely

serious misconduct. Rather, although he told the court at the arraignment that

he had obtained private counsel, he did not seek a continuance of the

arraignment in order for counsel to appear on his behalf. Nor did he at any

subsequent proceeding ask for      a   continuance, despite the absence of counsel.

At most, he acquiesced in the proceedings going forward without private or

appointed counsel appearing on his behalf, and without any colloquy

establishing his knowing, intelligent, and voluntary waiver of his right to

counsel.

      The Commonwealth's other arguments are similarly without force. The

record is silent on whether Turner qualified for court -appointed counsel, and

we decline to make that determination in the first instance. Finally, the

Commonwealth's suggestion that forfeiture may occur where the defendant

has the means to retain counsel but knowingly appears for trial without

counsel lacks      a   proper foundation. To the extent Wentz suggests such          a


                                          - 9 -
J   -S62029-18



standard, it   is a non -binding   plurality decision, and even if binding, it has been

supplanted by Lucarelli's "extremely serious misconduct" or "extremely

dilatory misconduct" standard. See Commonwealth v. Travillion, 17 A.3d

1247, 1248 (Pa. 2011) (stating forfeiture arises from       a   defendant's "extremely

serious misconduct" or "extremely dilatory conduct" and finding forfeiture).

We therefore vacate Turner's judgment of sentence and remand for a new

trial. See Monica, 597 A.2d at 604 (remanding for new trial where trial court

failed to conduct on -the -record colloquy before allowing defendant to proceed

to trial pro se).

        Judgment of sentence vacated.              Case   remanded    for proceedings

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




J seph D. Seletyn,
Prothonotary



Date: 1/7/19




                                          - 10 -
