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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                  :
                                        :
ERIC JOHN LESLIE,                       :         No. 709 WDA 2015
                                        :
                           Appellant    :


          Appeal from the Judgment of Sentence, December 8, 2014,
                  in the Court of Common Pleas of Elk County
              Criminal Division at No. CP-24-CR-0000278-2014


BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED SEPTEMBER 19, 2016

        Eric John Leslie appeals1 pro se from the December 8, 2014 judgment

of sentence of 36 to 72 months’ imprisonment imposed after he pled guilty

to one count of burglary.2 Having found that the trial court failed to ensure

that appellant intelligently, knowingly, and voluntarily waived his right to

counsel prior to proceeding pro se on his post-sentence motion, we remand

this matter so that a hearing can be conducted in accordance with

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


1
  Although pro se appellant purports to appeal from the order denying his
post-trial motion to modify his sentence, the appeal properly lies from the
judgment of sentence. See Commonwealth v. Shamberger, 788 A.2d
408, 410 n.2 (Pa.Super. 2001) (en banc), appeal denied, 800 A.2d 932
(Pa. 2002) (stating that in criminal action, an appeal properly lies from the
judgment of sentence made final by denial of post-trial motions).
2
    18 Pa.C.S.A. § 3502.
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     The relevant facts and procedural history of this case were set forth in

our prior judgment order, as follows:

                       By criminal complaint filed June 9,
                 2014, [appellant] was charged with
                 burglary, 18 Pa.C.S.A. [§] 3502(a)(2), a
                 felony of the first degree; theft by
                 unlawful     taking    or     disposition,
                 18 Pa.C.S.A. [§] 3921(a), a felony of the
                 second degree; and receiving stolen
                 property, 18 Pa.C.S.A. [§] [3925(a)], a
                 felony of the second degree. All of the
                 charges were filed as a result of an
                 incident on June 2, 2014, at the
                 residence of Lori Dowie at [], Fox
                 Township, Elk County, Pennsylvania.

                       After his arrest and preliminary
                 arraignment,       [appellant]    retained
                 Attorney     Jeffrey     S.    DuBois. . . .
                 [Appellant] [] appeared before the [trial
                 c]ourt on December 8, 2014, at which
                 time a negotiated disposition was
                 presented to the [trial c]ourt.      As a
                 result, [appellant] entered a guilty plea
                 to burglary and was sentenced to a
                 period of incarceration of not less than
                 36 months nor more than 72 months at
                 the State Diagnostic and Classification
                 Center at Pittsburgh, with a time-served
                 credit of 76 days.      The December 8,
                 2014 sentencing order was docketed on
                 December 12, 2014, and thereafter
                 [appellant] filed a timely [pro se] post-
                 sentence motion on December 19, 2014,
                 sounding primarily in claims which
                 asserted that his attorney was ineffective
                 and that a presentence investigation
                 report was mandated.

                 ....




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                        At the time of the February 23,
                 2015 hearing, the testimony of Attorney
                 Jeffrey DuBois and [appellant’s] mother,
                 Debra Jean Leslie, was presented and
                 documentary evidence was introduced.
                 Pre- and post-hearing memorand[a]
                 were also submitted or filed.           On
                 April 17, 2015, th[e trial c]ourt entered a
                 discussion and its order by which
                 [appellant’s] post-sentence motion was
                 denied. On May 1, 2015, [appellant]
                 filed the pending timely notice of appeal
                 and thereafter filed a statement of
                 concise matters complained of on appeal.

           Trial court opinion, 9/3/15 at 1-2 (citations omitted).

                 During the February 23, 2015 hearing on
           appellant’s post-sentence motion, the trial court
           granted Attorney DuBois’s oral motion to withdraw
           as appellant’s counsel. (See notes of testimony,
           2/23/15 at 32.)      Appellant represented himself
           throughout the duration of the hearing.

Commonwealth v. Leslie, 2016 WL 1545544, at *1 (Pa.Super. April 15,

2016) (unpublished judgment order) (footnote omitted; some brackets

added).

     On April 15, 2016, this court remanded this matter to the trial court in

order to determine whether “appellant’s decision to waive his right to

counsel and proceed with his post-sentence motion pro se was a knowing,

intelligent, and voluntary decision pursuant to Grazier.”      Leslie, 2016 WL

1545544, at *2. On April 21, 2016, the trial court entered an order directing

that the February 23, 2015 hearing on appellant’s post-sentence motion be

transcribed and made a part of the certified record. Thereafter, on June 1,



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2016,     the     trial    court    appointed   George   N.   (Jim)   Daghir,   Esq.

(“Attorney Daghir”) to represent appellant in this matter.

        “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,
                       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;


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            (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 the trial court has met the minimum

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

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

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

      Instantly, it remains unclear whether appellant’s decision to proceed

pro se on his post-sentence motion at the February 23, 2015 hearing was a

knowing, intelligent, and voluntary decision. Our review of the February 23,

2015 hearing transcript reveals that the trial court failed to conduct a proper

colloquy of appellant examining the six factors set forth in Rule 121.

Notably, the Commonwealth concedes in its brief that “[a]ppellant may not

have properly waived the assistance of counsel at the time of [the] hearing


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on post-sentence motion as a waiver to the right [of] counsel must be done

knowingly, intelligently and voluntarily.” (Commonwealth’s brief at 8.)

        Accordingly, we once again remand this matter for 30 days to the trial

court to conduct a hearing in accordance with Grazier to determine if

appellant knowingly, intelligently, and voluntarily waived his right to counsel.

        Case remanded. Jurisdiction retained.



        Judge Mundy did not participate in the consideration or decision of this

case.




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