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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.               :
                                      :
QUADIR JEFFRIES,                      :          No. 1335 EDA 2016
                                      :
                          Appellant   :


          Appeal from the Judgment of Sentence, March 23, 2016,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0009922-2010


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED MARCH 23, 2017

     Appellant, Quadir Jeffries, appeals from the judgment of sentence of

March 23, 2016, following revocation of his probation.      We vacate the

judgment of sentence and remand for resentencing.

     The Honorable Frank Palumbo has summarized the history of this

matter as follows:

                 Appellant was on probation following a guilty
           plea before the Honorable Paula Patrick to 18 Pa.C.S.
           [§] 6106, firearms not to be carried without a
           license. Appellant pled guilty on September 27,
           2010 and was sentenced on December 3, 2010 to a
           period of four years of reporting probation. On
           February 23, 2014, Appellant was arrested on
           charges of robbery, conspiracy, burglary, aggravated
           assault, and violation of the Uniform Firearms Act,
           with an alleged criminal act date of January 18,
           2014.
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                  Briefly stated, the facts of that case involved a
            home invasion armed robbery of a fifty-seven
            year-old victim, who was ambushed via a
            co-conspirator. Appellant pistol whipped the victim
            while screaming for money. The victim’s neighbor
            opened the door to his room and was shot in the arm
            by a co-defendant. Appellant took money and drugs,
            and shot out a camera while fleeing.           Notes of
            Testimony, 3/23/16, p. 7-10.

                  Appellant was tried before a jury. Appellant
            was convicted and on February 17, 2016, the
            Honorable Glenn Bronson sentenced Appellant to an
            aggregate term of twenty to forty years of
            incarceration. In the interim, Judge Patrick has been
            assigned to the civil trial division and jurisdiction
            over Appellant’s supervision was transferred to this
            court. At a violation hearing on March 23, 2016, this
            court revoked probation and sentenced Appellant to
            a period of three [and one-half] to [seven] years of
            incarceration, consecutive to Judge Bronson’s
            sentence. This appeal followed. Appellant filed his
            notice of appeal on April 20, 2016. On April 22,
            2016, this court ordered Appellant to file a Concise
            Statement of Matters (hereinafter Statement)
            pursuant to Pa.R.A.P. 1925(b). Appellant filed his
            Statement on May 20, 2016[.]

Trial court opinion, 6/8/16 at 1-2 (footnote omitted).

      Appellant has raised the following issues for this court’s review:

            1.    Whether [t]he sentencing court erred as a
                  matter of law, abused its discretion and
                  violated general sentencing principles when,
                  following a revocation of probation, the court
                  imposed a statutory maximum sentence,
                  ordered to be served consecutively?

            2.    Whether the court abused its discretion in
                  conducting the violation of probation [(“VOP”)]
                  hearing and sentencing Appellant to the
                  statutory maximum when counsel admitted on
                  the record that he was not prepared to proceed


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                   and had no file, had only met the Appellant
                   that morning and had no information or
                   witnesses present?

Appellant’s brief at 4.

      We will address appellant’s second issue first.       Appellant complains

that the trial court should have granted a continuance.           Appellant argues

that his attorney was unprepared and knew nothing about the case.

(Appellant’s brief at 17-18.)    Appellant met his attorney for the first time

immediately prior to sentencing.      (Id. at 17.)    Defense counsel had no

evidence or witnesses to present. (Id. at 18.) According to appellant, he

did not even know why he was in the courtroom on March 23, 2016. (Id. at

17-18.) Appellant contends that under the circumstances, he was denied his

right to a fair sentencing hearing as well as his constitutional right to

effective assistance of counsel. (Id. at 23.)

            Initially, we note the following:

                   Appellate review of a trial court’s
                   continuance decision is deferential. The
                   grant or denial of a motion for a
                   continuance      is  within   the    sound
                   discretion of the trial court and will be
                   reversed only upon a showing of an
                   abuse of discretion.        As we have
                   consistently    stated,   an    abuse     of
                   discretion is not merely an error of
                   judgment. Rather, discretion is abused
                   when      the   law   is   overridden     or
                   misapplied, or the judgment exercised is
                   manifestly unreasonable, or the result of
                   partiality, prejudice, bias, or ill-will, as
                   shown by the evidence or the record[.]



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             Commonwealth v. Brooks, 628 Pa. 524, 529-30,
             104 A.3d 466 (2014) (quotations marks, quotation,
             and citation omitted).

Commonwealth v. Norton, 144 A.3d 139, 143 (Pa.Super. 2016).

             However, the trial court exceeds the bounds of its
             discretion when it denies a continuance on the basis
             of “an unreasonable and arbitrary insistence upon
             expeditiousness in the face of a justifiable request
             for delay[.]” [Commonwealth v. Sandusky, 77
             A.3d 663, 672 (Pa.Super. 2013)] (quotation marks
             and quotation omitted).       Accordingly, we must
             examine the reasons presented to the trial court for
             requesting the continuance, as well as the trial
             court’s reasons for denying the request. See id.

Id.

      Pennsylvania Rule of Criminal Procedure 106, “Continuances in

Summary and Court Cases,” provides, in relevant part, as follows:

             (A)   The court or issuing authority may, in the
                   interests of justice, grant a continuance, on its
                   own motion, or on the motion of either party.

             (D)   A motion for continuance on behalf of the
                   defendant shall be made not later than
                   48 hours before the time set for the
                   proceeding.       A later motion shall be
                   entertained only when the opportunity therefor
                   did not previously exist, or the defendant was
                   not aware of the grounds for the motion, or
                   the interests of justice require it.

Pa.R.Crim.P. 106 (A), (D).

      Appointed counsel, Matthew Hellerman, Esq., did not request a

continuance until the day of sentencing.       The public defender who had

previously     been    representing    appellant    was     unavailable   and,



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Attorney Hellerman was assigned at the last minute.         Attorney Hellerman

explained,

             Your Honor, I spoke to [appellant] this morning in
             the booth just briefly. I was -- I met him for the first
             time today.     I don’t have a file on this case.
             Apparently, the Public Defender’s Office was
             appointed at the last listing with -- Ms. Fensterer was
             present. She requested a date. I never received
             any information. After speaking with [appellant], he
             didn’t know what he was here for today. I wasn’t
             able to have his family come in to be here for him,
             as they typically would be. He didn’t know he had a
             violation hearing today or that’s what he was being
             brought for.

                    Mr. Mischak represented him on these direct
             violations. Mr. Mischak has filed post-trial motions
             and he would like Mr. Mischak to be present to
             represent him on this, Your Honor.

                   So that is my request at this point.

             THE COURT: As --

             [ANDREW] NOTARISTEFANO[, ESQ., ADA]: We dealt
             with that at the last listing. We dealt with all of that
             at the last listing.

             THE COURT: Okay, but --

             MR. NOTARISTEFANO: Mr. Mischak said he wasn’t
             going to represent [appellant].       There was a
             conversation. The defendant’s mother was in the
             courtroom; she was spoken to. The court staff called
             Mr. Mischak’s Office. There was a conversation with
             Ms. Fensterer. Your Honor appointed her. You gave
             her the time to prepare for it. I provided her the
             pre-sentence investigation [(“PSI”)] [report] as well
             as the Sentencing Memorandum. They’ve had all the
             information since the last listing, which was
             approximately a month ago. They knew where he
             was. He was kept locally for various reasons. He


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            wasn’t shipped up to SCI Forest as the state system
            had planned and it was all dealt with and he knows
            that, and Your Honor, knows that, and the PD’s
            Office knows it. Maybe not this Assistant Public
            Defender, but it was discussed and the PD’s Office
            does know that.

            MR. HELLERMAN: And in that case, like I said, I
            wasn’t present for any of that, Your Honor.
            Ms. Fensterer never told me anything about this
            case. I don’t know if she knew she would not be
            here today, so it’s my position that at the very least
            Ms. Fensterer should be here to handle it, if not
            Mr. Mischak. I’m just simply relaying my client’s
            request. If it’s denied, then we’ll proceed.

Notes of testimony, 3/23/16 at 13-15.

      Judge Palumbo denied the request for a continuance, but indicated

that he would consider appellant’s argument to run his VOP sentence

concurrently with his sentence on the new charges.           (Id. at 16-18.)

Attorney Hellerman made an argument for concurrent sentences but noted

that he was hindered by his lack of information concerning appellant’s case.

(Id. at 17-18.)   Judge Palumbo addressed this issue in his Rule 1925(a)

opinion as follows:

                  Here, Appellant was listed for a violation
            hearing on February 16, 2016 and the public
            defender was appointed after court staff contacted
            Appellant’s trial counsel and was informed that trial
            counsel was not retained for the probation violation.
            The case was continued and the Commonwealth’s
            attorney passed a copy of the [PSI] report and the
            Commonwealth’s         sentencing     memorandum.
            Appellant’s family was present at the February 16
            court date and aware of his March 23 hearing. At
            the revocation hearing, the assigned defender was
            again provided with copies of the [PSI] report, the


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            Commonwealth’s sentencing memorandum, and the
            probation summary. Counsel had an opportunity to
            confer with Appellant prior to the revocation hearing.
            Under the aforementioned circumstances, the court’s
            decision to go forward with the revocation hearing
            was not an abuse of discretion and no relief is due.

Trial court opinion, 6/8/16 at 6.

      We must respectfully disagree. While Attorney Hellerman had a copy

of the Commonwealth’s sentencing memorandum and the PSI report, he was

wholly unfamiliar with appellant’s case and had just met him that morning.

He did not have       a case file and was given no information from

Attorney Fensterer.        (Notes      of    testimony,    3/23/16    at   13.)

Attorney Hellerman did not have the opportunity to secure witnesses to

testify on appellant’s behalf.      (Id.)   It is clear from the transcript that

Attorney Hellerman was unaware of appellant’s background and individual

circumstances, as well as any potential mitigating evidence, and was

thoroughly unprepared to proceed at the VOP sentencing hearing.

      While the Commonwealth characterizes the continuance request as

untimely, Attorney Hellerman could not have made it sooner as he was just

assigned appellant’s case that day. It is unknown from the existing record

why Attorney Fensterer was unable to appear on appellant’s behalf, but

certainly whatever happened, it was not appellant’s fault. In the interests of

justice and to safeguard appellant’s rights to effective representation and

due process, Attorney Hellerman’s continuance request should have been

granted.    There was no apparent prejudice to the Commonwealth by


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granting the request.     For these reasons, we are compelled to vacate the

judgment of sentence and remand for resentencing.1 Given our disposition

of appellant’s second issue, it is unnecessary to address the first issue.

      Judgment of sentence vacated.           Case remanded.        Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/23/2017




1
 Appellant does not dispute that he was in violation of his probation where
he was convicted of new charges.


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