J-S73023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

GREGORY METZ ROGERS

                            Appellant               No. 1025 MDA 2014


            Appeal from the Judgment of Sentence of June 2, 2014
               In the Court of Common Pleas of Centre County
              Criminal Division at No.: CP-14-CR-0000186-2013


BEFORE: BOWES, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                       FILED DECEMBER 19, 2014

       Gregory Metz Rogers appeals from the judgment of sentence entered

on June 2, 2014, after he pleaded guilty to one count each of habitual

offenders and driving under suspension—DUI related.1 We affirm.

       On November 18, 2012, Officer M.J. Pieniazek of the State College

Police Department initiated a traffic stop of Rogers’ car because he was

driving without his headlights illuminated during the required period of time.

Subsequently, Officer Pieniazek discovered that Rogers’ driver’s license had

been suspended for five years for a conviction of driving under the influence

on December 7, 2007. On February 26, 2013, the Commonwealth filed an

____________________________________________


1
      See 75 Pa.C.S.A. §§ 6503.1, 1543(b)(1). An additional count of
period for requiring lighted lamps, 75 Pa.C.S.A. § 4302(a)(1), was nolle
prossed.
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information against Rogers with the above-mentioned charges. On May 23,

2013, the trial court granted Roger’s unopposed motion for continuance and

waiver of Pa.R.Crim.P. 600.     The court subsequently granted four more

unopposed motions for continuance on July 18, 2013, September 18, 2013,

November 20, 2013, and January 24, 2014.          Rogers waived his right to a

jury, and the trial court scheduled a non-jury trial for May 2, 2014. Rogers

filed an additional motion for continuance, which the trial court granted on

May 5, 2014, continuing proceedings until June 2, 2014, when Rogers would

enter a guilty plea.

      On June 2, 2014, Rogers requested a seventh continuance, claiming

that he still needed additional time to retain privately-hired counsel. Court-

appointed counsel explained that Rogers “has made some payments to

Attorney Tom Dickey out of Altoona. Apparently, Mr. Dickey is awaiting the

additional payment of $200 before he will enter his appearance.” Notes of

Testimony    (“N.T.”)   Continuance    Request,    6/2/2014,    at   2.   The

Commonwealth opposed, and the trial court denied the request. Id. Rogers

then proceeded to enter written and oral guilty plea colloquies to habitual

offenders and driving under suspension—DUI related.            See N.T. Guilty

Plea/Sentencing, 6/2/2014, at 2-3.     The trial court immediately sentenced

Rogers to an aggregate period of county incarceration of not less than sixty

days nor more than twenty-three and a half months.              See Sentence,

6/2/2014.




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        On June 4, 2014, Rogers timely filed a post-sentence motion, seeking

to withdraw his guilty plea and to stay his report date for sentencing pending

appeal.    On June 5, 2014, the trial court denied the motion to withdraw

Rogers’ guilty plea but granted the motion to stay his report date. Rogers

timely appealed on June 17, 2014.       Pursuant to the trial court’s order, on

July 7, 2014, Rogers timely filed a concise statement of matters complained

of on appeal pursuant to Pa.R.A.P. 1925(b).       On July 16, 2014, the trial

court entered its opinion pursuant to Pa.R.A.P. 1925(a).

        Rogers raises one question for our review: “Did the [trial c]ourt abuse

its discretion when it denied [Rogers’] Motion for Continuance and Motion to

Withdraw Guilty Plea?” Rogers’ Brief at 7.

        Preliminarily, we observe that Rogers has completely abandoned his

challenge to the denial of his post-sentence motion to withdraw his guilty

plea.   See id. at 12-13; see also Commonwealth v. English, 699 A.2d

710, 714 n.5 (Pa. 1997) (holding that issue included in statement of

questions presented but not argued in text of brief is waived).      Thus, we

address only Rogers’ challenge to the trial court’s denial of his seventh

motion for continuance.

        Our standard of review when considering a court’s decision to deny a

motion for a continuance is as follows:

          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 that discretion. [A]n
          abuse of discretion is not merely an error of judgment.
          Rather, discretion is abused when the law is over-ridden or

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        misapplied, or the result of partiality, prejudice, bias, or ill-
        will as shown by the evidence or the record. The grant of
        a continuance is discretionary and a refusal to grant is
        reversible error only if prejudice or a palpable and manifest
        abuse of discretion is demonstrated.

     In reviewing a denial of a continuance, the appellate court must
     have regard for the orderly administration of justice, as well as
     the right of the defendant to have adequate time to prepare a
     defense.

Commonwealth v. Hansley, 24 A.3d 410, 418 (Pa. Super. 2011) (citations

and quotation marks omitted).

     In examining whether a trial court abused its discretion in
     refusing to grant a continuance for a defendant to retain new
     counsel, Pennsylvania courts have historically looked at several
     factors. We have generally found that a trial court did not abuse
     its discretion in denying a request for a continuance to retain
     new counsel where the trial court conducted an “extensive
     inquiry” into the underlying causes of defendant’s dissatisfaction
     with current counsel and based upon that inquiry determined
     that the differences did not constitute “irreconcilable
     differences.” Commonwealth v. Floyd, 937 A.2d 494, 496-
     500 (Pa. Super. 2007) (collecting cases).

     We have also looked to the number of prior continuances in the
     matter, the timing of the motion, whether private counsel had
     actually been retained, and the readiness of private counsel to
     proceed in a reasonable amount of time.

Commonwealth v. Prysock, 972 A.2d 539, 542-43 (Pa. Super. 2009).

     In the instant case, Rogers requested a continuance on June 2, 2014

because, although he was represented by appointed counsel, he wished to

retain counsel who was awaiting the payment of $200 before entering an

appearance. In response, the Commonwealth asserted:

     With respect to this case, from the time it was reassigned to me,
     it was told to me that [Rogers] was going to be entering a guilty

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      plea on nonjury trial day. He came in, decided not to do that
      and decided to fire [appointed counsel] and hire [retained
      counsel]. It still, at this point, hasn’t happened so we’d ask you
      to deny the continuance request. And I’d have to, at this point
      in time, try and track down and see if my witnesses would be
      available for trial.

N.T. Continuance Request at 2.      The trial court denied the request and

proceeded to take Rogers’ guilty plea colloquies.       Id. at 3.   Appointed

counsel indicated that, in completing the written plea colloquy,

      [Rogers] checked no, that he has not had enough time to consult
      with me about this case. Mr. Rogers is intending on hiring
      [retained counsel]. A request for continuance was denied. I told
      Mr. Rogers the deal is what has been since it was changed in
      April by the Commonwealth. I’ve had numerous conversations
      with him about what the plea offer is.

N.T. Guilty Plea at 3. The court accepted the colloquy, noting that “[Rogers]

knew this date was coming up.”      Id. at 3.     In the oral colloquy, Rogers

agreed that his plea was entered voluntarily, that he understood the nature

of the charges and admitted the conduct upon which they were based, and

the elements and range of sentences and fines for the charges.          Id. at 4.

Furthermore, in response to the trial court’s inquiries, he answered:

      Q.    Did you have an opportunity to discuss this plea with your
      current lawyer . . . ?

      A.    Yes.

      Q.    And are you satisfied          with   [appointed   counsel’s]
      representation of you?

      A.    Yes.

Id. at 5.



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      In the circumstances of this case, Rogers had already been granted six

uncontested motions for continuance. This seventh motion was made more

than fifteen months after the information was filed against him.            The

Commonwealth stated that it had been prepared to move forward with a

guilty plea on June 2, 2014, and that if the continuance were granted, it

would have to track down witnesses to prepare for a trial.        Furthermore,

Rogers stated that he was satisfied with appointed counsel, who was

prepared to represent him.     Conversely, Rogers’ desired retained counsel

had yet to enter an appearance, and there is no indication in the record that

he would be prepared to represent Rogers. See Prysock, 972 A.2d at 542-

43.

      The trial court sufficiently inquired into the underlying circumstances of

Rogers’ request for continuance to find that, where Rogers was ably

represented by appointed counsel, there were no irreconcilable differences

which would merit granting the continuance. See, e.g., Commonwealth v.

Carroll, 452 A.2d 260, 263 (Pa. Super. 1982) (finding that trial court did

not abuse discretion in denying continuance to retain new counsel where

“appellant was ably represented by his public defender”).      Accordingly, we

conclude that the trial court did not abuse its discretion in denying Rogers’

motion for continuance. See Hansley, 24 A.3d at 418. Rogers’ issue does

not merit relief.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2014




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