J-S63022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

GEORGE THOMAS CROUSE

                            Appellant             No. 2288 MDA 2013


           Appeal from the Judgment of Sentence December 4, 2013
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-SA-0000311-2013


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

JUDGMENT ORDER BY PANELLA, J.                  FILED NOVEMBER 06, 2014

       Appellant, George Thomas Crouse, appeals from the judgment of

sentence for Driving While Operating Privilege is Suspended or Revoked,1

entered following his de novo summary trial on December 4, 2013, in the

Court of Common Pleas of Berks County. We vacate Crouse’s judgment of

sentence and remand for further proceedings.

       Following a summary appeal hearing on December 4, 2013, at which

Crouse was not advised of his right to counsel and testified on his own

behalf, Crouse was convicted of, inter alia, driving under suspension.2 The

court sentenced Crouse to six months’ incarceration and imposed a
____________________________________________


*
  Retired Senior Judge assigned to the Superior Court.
1
  75 Pa.C.S.A. § 1543(a).
2
  The court found sufficient evidence that Crouse was a habitual offender
under 75 Pa.C.S.A. § 6301.1.
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$1,000.00 fine.    Crouse filed a timely pro se appeal.       In lieu of a Rule

1925(b) statement, Crouse filed a Motion to Stay Sentence.           This Court

deferred the motion to stay to the trial court and ordered the lower court to

conduct an on-the-record inquiry as to whether Crouse wanted counsel.

      The trial court then stayed Crouse’s sentence.         The Berks County

Office of the Public Defender entered its appearance on Crouse’s behalf.

With the appointment of counsel, this Court remanded the recorded to

permit appointed counsel to review the record and file a Rule 1925(b)

concise statement. Although counsel initially filed a Statement of Intent to

File an Anders/McClendon Brief, counsel subsequently filed an Application

to Amend and Correct Concise Statement Nunc Pro Tunc or in the Alternative

for the Superior Court to Relinquish Jurisdiction and Direct that the Trial

Court Entertain a Motion to Reconsider Verdict. This Court denied counsel’s

application without prejudice to seek relief in the trial court. Counsel filed an

amended Rule 1925(b) statement. This matter is now ripe for our review.

      On appeal, Crouse argues that the trial court erred when it failed to

advise him of his right to counsel at the de novo summary trial where

Crouse faced the possibility of imprisonment if convicted as a habitual




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offender under section 1543(a).3          Pennsylvania Rule of Criminal Procedure

122, Appointment of Counsel, provides in pertinent part:

       (A) Counsel shall be appointed:

       (1) in all summary cases, for all defendants who are without
       financial resources or who are otherwise unable to employ
       counsel when there is a likelihood that imprisonment will be
       imposed;

Pa.R.Crim.P. 122(A)(1). The Comment to Pa.R.Crim.P. 462, Trial De Novo,

explicitly states that “[n]o defendant may be sentenced to imprisonment or

probation if the right to counsel was not afforded at trial.”

       There is no dispute that Crouse faced the likelihood of imprisonment if

convicted as a habitual offender under section 1543(a) and that he was

never advised of his right to counsel at the December 4, 2013, summary

appeal hearing.       Accordingly, we vacate Crouse’s judgment of sentence

imposed pursuant to his conviction of Driving Under Suspension, and

remand for a new de novo trial on that charge only with the benefit of

Crouse’s appointed counsel.

       Judgment of sentence vacated.             Case remanded with instructions.

Motion to Amend or Remand is denied as moot. Jurisdiction relinquished.




____________________________________________


3
  Section 6503(a.1) mandates a term of of 30 days to six months’
imprisonment where a person is convicted of a sixth or subsequent offense
under section 1543(a).



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J-S63022-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2014




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