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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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


JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.:              FILED APRIL 15, 2016

      Eric John Leslie appeals from the December 8, 2014 judgment of

sentence of the Court of Common Pleas of Elk County denying his post-trial

motion and motion to modify sentence.        We remand to the trial court in

order to determine whether appellant’s waiver of his right to counsel was a

knowing, intelligent, and voluntary decision.

      The trial court provided the following relevant procedural history:

                  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.
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                   After his arrest and preliminary arraignment,
             [appellant] retained Attorney Jeffrey S. DuBois. . . .
             [Appellant] [] appeared before the Court on
             December 8, 2014, at which time a negotiated
             disposition was presented to the Court. 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 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.

             ....

                   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, this
             Court 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.[1]

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.


1
    See Pa.R.A.P. 1925(b).


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     Before we can consider the merits of the six issues appellant raises for

our review, we must first consider whether appellant’s waiver of his right to

counsel was proper. “When a waiver of the right to counsel is sought at the

post-conviction and appellate stages, an on-the-record determination should

be made that the waiver is a knowing, intelligent, and voluntary one.”

Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998).

     In the case at bar, the record indicates that appellant filed a

post-sentence   motion   pro   se   and   entered   the   February   23,   2015

post-sentence motion hearing under the impression that Attorney DuBois

had withdrawn from the case.     (Notes of testimony, 2/23/15 at 31.)       The

record, however, does not indicate that the trial court, when it granted

Attorney DuBois’s motion to withdraw, conducted a colloquy with appellant

in order to make a determination on the record that 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. We,

therefore, remand to the trial court so that such a determination can be

made.

     Case remanded. Jurisdiction retained.




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