J-S65019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NATHAN WAYNE LAUVER                        :
                                               :
                       Appellant               :   No. 975 MDA 2019


         Appeal from the Judgment of Sentence entered May 16, 2019,
                in the Court of Common Pleas of Mifflin County,
            Criminal Division at No(s): CP-44-CR-0000566-2018.


BEFORE:      PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                        FILED FEBRUARY 10, 2020

        Nathan Wayne Lauver appeals pro se from the judgment of sentence

imposed after a jury convicted him of institutional vandalism.1 We remand for

a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

        The facts and procedural history are as follows: On August 15, 2018,

the Commonwealth charged Lauver with institutional vandalism and the trial

court appointed counsel to represent him. Thereafter, on December 28, 2018,

Lauver filed a “Petition for Change of Appointed Counsel Due to Conflict.” The

certified record contains no evidence that the trial court ruled on this petition.

By order entered January 31, 2019, the case was scheduled for jury trial


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 3307(a)(3).
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beginning on March 11, 2019. That same day, Lauver’s counsel filed a petition

to withdraw, based upon a breakdown in the attorney-client relationship.

      The trial court held a hearing on counsel’s motion to withdraw on

February 19, 2019.     No hearing transcript appears in the certified record.

Rather, the record contains a “Waiver of Counsel” signed by Lauver and filed

on that same date. The same day, the trial court entered an order granting

counsel’s motion to withdraw and appointing Lauver standby counsel.

      On February 26, 2019, Lauver filed a pro se motion for continuance of

his trial date, which the Commonwealth opposed. By order entered March 7,

2019, the trial court denied Lauver’s request for a continuance.           After

considering pre-trial motions filed by Lauver, the case proceeded to a jury trial

on March 20, 2019. On that date, the jury convicted Lauver of institutional

vandalism.    On April 1, 2019, Lauver filed a pro se “Post Verdict Motion For

Judgment of Acquittal/Arrest of Judgment/New Trial,” as well as “Motion for

Bail Pending Appeal,” and a “Motion for Transcripts of Proceedings.” The next

day, the trial court granted Lauver’s request for transcripts, and deferred

ruling on the remaining motions until sentencing.

      On May 16 2019, the trial court sentenced Lauver to a $1,000.00 fine

and a 9 to 24 months term of state incarceration. The court further ruled that

bail would continue pending appeal, but if Lauver failed to file an appeal, “he

shall appear at the Mifflin County Correctional Facility on June 17, 2019, for

transfer to a State Correctional Institution.” A transcript of the sentencing

hearing does not appear in the certified record.      The record does contain,

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however, Lauver’s written acknowledgement of post-sentence procedures,

which he and standby counsel signed. There is no indication in the certified

record that the trial court disposed of Lauver’s post-verdict motion.

      On May 24, 2019, Lauver filed a pro se “Post Sentence Motion For

Judgment of Acquittal/Arrest of Judgment/New Trial.” The trial court denied

this motion on May 29, 2019. This timely pro se appeal followed. Both Lauver

and the trial court have complied with Pa.R.A.P. 1925.

      Lauver now presents this Court a pro se brief that presents nine issues

for our review. However, before we can address these claims, we must first

consider a deficiency in the certified record. As noted, Lauver appears before

this Court pro se. There is no indication in the certified record that Lauver

ever made a knowing, intelligent waiver of his right to counsel on appeal

pursuant to Grazier.    Thus, we are constrained to remand this case for

proceedings consistent with the following discussion.

      A criminal appellant has a constitutional right to counsel on direct

appeal. Commonwealth v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007).

Pursuant to Grazier, “[w]hen a waiver of the right to counsel is sought at . .

. the appellate stages an on-the-record determination should be made that

the waiver is a knowing, intelligent, and voluntary one.” Grazier, 713 A.2d

at 82. A Grazier hearing is required before we may adjudicate an appeal

even when it is clear from the record that a particular appellant “clearly and

unequivocally indicates a desire to represent himself,” Commonwealth v.

Robinson, 970 A.2d 455, 459-60 (Pa. Super. 2009) (en banc), and even

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when neither of the parties challenged the lack of a hearing.                See

Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011).

      Here, although Lauver signed a waiver of counsel before he was

convicted, and signed an acknowledgement of post-sentence procedures,

there is no indication in the certified record that the trial court inquired,

pursuant to Pa.R.Crim.P. 121(A)(2) (setting forth relevant considerations for

determining whether a criminal defendant is making a knowing, intelligent,

and voluntary decision to proceed pro se), whether Lauver desired to waive

his right to counsel in this direct appeal, and, if so, whether that decision was

knowing, intelligent, and voluntary. In light of the unequivocal authority cited

above, we are constrained to remand this case for a proper Grazier hearing,

including a full consideration of the factors set forth at Pa.R.Crim.P. 121(A)(2).

      On remand, the trial court must hold a Grazier hearing and thereafter

appoint counsel, if necessary. Because our remand may change the content

and character of this appeal substantially, we relinquish our jurisdiction. See

Robinson, supra, Stossel, supra.

      Case remanded with instructions. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/10/2020



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