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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                       :
JAMES LESLIE FLOWERS, JR.,             :          No. 97 MDA 2017
                                       :
                       Appellant       :


         Appeal from the Judgment of Sentence, October 12, 2016,
            in the Court of Common Pleas of Schuylkill County
             Criminal Division at No. CP-54-CR-0001181-2015


BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED OCTOBER 11, 2017

     James Leslie Flowers appeals pro se from the October 12, 2016

judgment of sentence entered in the Court of Common Pleas of Schuylkill

County1 following his conviction in a jury trial of delivery of a controlled

substance, possession with intent to deliver a controlled substance, and




1 Appellant filed his appeal from the December 7, 2016 order denying his
post-sentence motion. In the criminal context, an appeal properly lies from
the judgment of sentence, not an order denying post-sentence motions.
Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.1 (Pa.Super. 2003)
(en banc). The caption, therefore, has been amended to reflect that this
appeal is from the October 12, 2016 judgment of sentence.
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possession of a controlled substance.2 The trial court imposed a sentence of

27 to 54 months of imprisonment.3 We remand for further proceedings.

        In a prior memorandum, we set forth the following procedural history:

                     The record reflects that on June 15, 2015,
              Attorney Andrea Thompson of the Office of the Public
              Defender entered her appearance on appellant’s
              behalf and represented appellant through trial.
              Following trial, but before sentencing, and while still
              being represented by Attorney Thompson, appellant
              commenced pro se filings with the trial court, which
              included a “notice of appeal,” a “motion for stay of
              sentencing pending appeal,” and a Post-Conviction
              Relief Act[Footnote 4] petition alleging, among other
              things, ineffective assistance of Attorney Thompson.
              (Pro se notice of appeal, 9/13/16; pro se motion for
              stay of sentencing pending appeal, 9/13/16; pro se
              PCRA petition, 9/13/16; Docket ##30, 32 & 33,
              respectively). On September 16, 2016, Attorney
              Thompson filed a motion to withdraw as counsel,
              alleging her inability to represent appellant because
              of the “outrageous and spurious allegations”
              appellant made against her. (Motion to withdraw as
              counsel, 9/16/16.) On September 26, 2016, the trial
              court       entered        an      order      granting
              Attorney Thompson’s motion to withdraw as counsel
              and appointing Claude A.L. Shields, Esq., to
              represent appellant.      (Order of court, 9/26/16.)
              Despite being represented by Attorney Shields,
              appellant filed a pro se motion challenging the trial
              court’s jurisdiction over appellant. (Pro se motion
              to challenge jurisdiction, 10/11/16; Docket #40.)

                    [Footnote 4] 42 Pa.C.S.A. §§ 9541-9546.

                   The trial court held a sentencing hearing on
              October 12, 2016, at which Attorney Shields

2 Counts I and II in violation of 35 P.S. § 780-113(a)(30) and Count III in
violation of 35 P.S. § 780-113(a)(16).

3   For sentencing purposes, Counts II and III merged with Count I.


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          represented appellant. Because appellant disrupted
          those proceedings, the trial court held appellant in
          direct criminal contempt of court, sentenced him to
          30 days in prison, and had him removed from the
          sentencing hearing and taken into custody. (Notes
          of testimony, 10/12/16 at 3.)          The sentencing
          hearing then proceeded without appellant. Prior to
          imposition of sentence, Attorney Shields informed
          the trial court that appellant had indicated to counsel
          that appellant did not want counsel’s representation.
          (Id. at 6-7.) Attorney Shields further informed the
          trial court that communication between counsel and
          appellant is “totally broke [sic] down.” (Id. at 7.)
          Attorney Shields stated that although he would be
          representing appellant at the sentencing hearing, he
          would be filing a motion to withdraw.             (Id.)
          Thereafter, the trial court imposed sentence. (Id.
          at 11; see also order of court, 10/12/16; Docket
          #41.)

                On October 13, 2016, Attorney Shields filed a
          post-sentence motion on appellant’s behalf and
          simultaneously filed a motion to withdraw as
          counsel.       In   that    motion   to    withdraw,
          Attorney Shields alleged that because counsel
          informed appellant that appellant had no basis to
          challenge the trial court’s jurisdiction over him,
          appellant refused to communicate with counsel.
          (Motion to withdraw as counsel, 10/13/16; Docket
          #44.)    On November 10, 2016, the trial court
          granted Attorney Shields’s motion to withdraw as
          counsel and further “ordered that [appellant] may
          represent himself pro se and that [Attorney] Shields
          is appointed to serve as standby counsel.” (Order of
          court, 11/10/16; Docket #53.) On December 7,
          2016, the trial court denied appellant’s post-
          sentence motion.

                The record further reveals that appellant filed a
          “motion for extraordinary relief to the [trial] court,”
          which was docketed on November 29, 2016, and
          states:




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               And      now,     [appellant]/pro    se,
               James Leslie Flowers, hereby motions the
               court as follows:

               1.    The order of court on the 10th
                     day of November, granted
                     the   motion    of    defense
                     counsel to withdraw his
                     appearance in the matter,
                     and    his   appearance     is
                     withdrawn.

               2.    It is further ordered that
                     [appellant] may represent
                     himself pro se, and that
                     Claude A. Lord Shields,
                     Esquire is appointed to serve
                     as standby counsel.

               WHEREFORE, [appellant]/pro se, James
               Leslie    Flowers   request    that   this
               Honorable Court to grant, extraordinary
               relief, so that pro se [appellant] may
               seek proper legal advice from attorney’s
               at law, who specialize in the nature of
               these charges brought forth, and further
               be appointed appeal bail to reinstate the
               bail     that     [appellant]/pro      se,
               James Flowers is therefore capable, and
               knowledgeable to properly litigate these
               proceedings.

          Pro se motion for extraordinary relief to the court,
          11/29/16; Docket #56 (numerous grammatical
          errors occur in original).

                On December 2, 2016, the trial court entered
          an    order    denying    appellant’s  motion    for
          extraordinary relief.   (Order of court, 12/2/16;
          Docket #58.) Appellant then filed a pro se notice of
          appeal to this court.[Footnote 5] (Pro se notice of
          appeal, docketed 1/13/17; Docket #65.) The trial
          court then ordered appellant to file a concise
          statement of errors complained of on appeal


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          pursuant to Pa.R.A.P. 1925(b), and appellant timely
          complied pro se.      The trial court then filed its
          Rule 1925(a) opinion.

               [Footnote 5] The notice of appeal is
               dated     January     6,     2017,    but
               time-stamped as being docketed on
               January 13, 2017. In an abundance of
               caution, based upon the prisoner mailbox
               rule, we deem the notice of appeal timely
               filed.      See     Commonwealth       v.
               Chambers, 35 A.3d 34, 38 (Pa.Super.
               2011) (holding “a pro se prisoner’s
               document is deemed filed on the date he
               delivers it to prison authorities for
               mailing”) (citation omitted)).

          Appellant has now filed a pro se brief with this court
          raising six issues. Based on the record before us,
          however, we cannot consider the issues that
          appellant requests that we review because we find
          that the trial court violated appellant’s right to
          counsel on direct appeal. See Commonwealth v.
          Wrecks, 931 A.2d 717, 722 (Pa.Super. 2007)
          (reiterating that a criminal appellant has a
          constitutional right to counsel on direct appeal).
          Here, nothing in the record supports the conclusion
          that appellant requested Attorney Shields to
          withdraw, waived his right to counsel on appeal, or
          desired to proceed pro se on appeal. We are,
          therefore,    constrained   to    remand      for    a
          Grazier[Footnote 6] hearing. If appellant wishes to
          represent himself, we will proceed to the merits on
          appeal considering his pro se brief.

               [Footnote   6]   Commonwealth           v.
               Grazier, 713 A.2d 81 (Pa. 1998).

Commonwealth v. Flowers, 2017 Lexis 3136, at *1-7 (Pa.Super.

August 18, 2017) (unpublished memorandum).




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      On August 18, 2017, we remanded this matter to the trial court for a

Grazier hearing to determine whether appellant’s decision to proceed

pro se on direct appeal was a knowing, intelligent, and voluntary one. On

September 14, 2017, the trial court filed an order with this court, dated

September 12, 2017, that attached a certified transcript of its November 10,

2016 hearing with counsel and appellant with respect to Attorney Shields’

motion to withdraw as appellant’s counsel and certified its conclusion that

appellant      “was     acting   knowingly,     intelligently,   voluntarily   and

understandingly, and that the Grazier requirements had been fulfilled.”

(Order of court, 9/12/17.)

      “Both the right to counsel and the right to self-representation are

guaranteed by the Sixth Amendment to the United States Constitution and

by   Article     I,    Section   Nine   of    the   Pennsylvania     Constitution.”

Commonwealth v. Phillips, 93 A.3d 847, 851 (Pa.Super. 2014) (citation

omitted). “Where a defendant knowingly, voluntarily, and intelligently seeks

to waive his right to counsel, the trial court . . . must allow the individual to

proceed pro se.” Commonwealth v. El, 977 A.2d 1158, 1162-1163 (Pa.

2009) (citation omitted). Pursuant to Pennsylvania Rule of Criminal

Procedure 121, the trial court is required to examine the following six areas

on the record to determine whether a defendant is making a knowing,

voluntary, and intelligent waiver:

               (a)    that the defendant understands that he or she
                      has the right to be represented by counsel,


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                 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).

     The trial court must further inquire “about the defendant’s age,

educational background, and basic comprehension skills.” Phillips, 93 A.3d

at 853 (citation omitted).   We will review “the totality of the relevant

circumstances only after we decide that the trial court has met the minimum

requirements of Rule 121, to determine whether the defendant’s waiver of




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the constitutional right to counsel was a knowing, voluntary, and intelligent

waiver.” Id. at 854 (citation omitted).

      Here, we are unable to determine whether appellant’s decision to

proceed pro se on direct appeal constituted a knowing, intelligent, and

voluntary decision based on the following colloquy that took place at the

November 10, 2016 hearing on Attorney Shields’ motion to withdraw as

counsel:

            THE COURT: . . . [Appellant], what’s your position
            on this? Do you want Mr. Shields to remain in the
            case? Do you want him out of the case? Do you
            want to represent yourself?

            [APPELLANT]: I want to represent myself.

            THE COURT: All right. Did anybody threaten you or
            force you to do that? You’re doing that of your own
            free will?

            [APPELLANT]: Yes.

            THE COURT:     Then good.     I have no problem with
            that. . . .

Notes of testimony, 11/10/16 at 2-3.

      Clearly, the trial court failed to conduct a proper colloquy of appellant

that examined the relevant factors set forth in Rule 121 involving appellant

representing himself on appeal. Consequently, we are constrained to once

again remand this matter to the trial court and direct the trial court to

conduct a hearing in accordance with Grazier to determine if appellant

knowingly, intelligently, and voluntarily waived his right to counsel on appeal



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within 30 days of the date that this memorandum is filed. We additionally

remind appellant that although he is entitled to the appointment of counsel

on appeal, he is not entitled to the counsel of his choice.            See

Commonwealth v. Rucker, 761 A.2d 541, 542 n.1 (Pa. 2001) (reiterating

that a defendant who seeks court-appointed counsel at public expense has

no right to choose the particular counsel to represent him).

      Case remanded. Jurisdiction retained.




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