J-S81037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

WILLIAM J. DEMENCZUK

                            Appellant                  No. 990 EDA 2016


           Appeal from the Judgment of Sentence February 22, 2016
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0005408-2015

BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                   FILED NOVEMBER 23, 2016

        Appellant William J. Demenczuk appeals from the judgment of

sentence entered by the Court of Common Pleas of Bucks County after the

trial court convicted Appellant of Driving Under the Influence of a Controlled

Substance (DUI) (incapable of safely driving), fleeing or attempting to elude

a police officer, resisting arrest, and a summary traffic violation. Appellant

claims the trial court abused its discretion in denying his request for a

continuance. After careful review, we affirm.




____________________________________________



*
    Former Justice specially assigned to the Superior Court.
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      On June 21, 2015, after Officer Keith Fennell observed Appellant failed

to yield to a stop sign, he activated his lights and siren in an attempt to

effectuate a traffic stop of Appellant’s vehicle.   Appellant did not stop but

continued driving to his residence.   When Appellant exited the vehicle, he

began screaming at the Officer Fennell, who noticed an odor of alcohol on

Appellant’s breath.   After Officer Fennell called for backup, he conducted

field sobriety testing with Appellant’s consent.     Appellant was unable to

recite the alphabet and could not complete the finger-to-nose test.

      Once Officer Fennell informed Appellant that he was under arrest for

suspicion of DUI, Appellant became combative and physically resisted the

officers’ attempt to place him in handcuffs.   He continued to kick and flail

while the officers put him in the back of the patrol car. Appellant claimed

the officers broke his leg in the struggle. When an officer opened the door

to check on Appellant’s foot, Appellant tried to escape. The officers subdued

Appellant and again placed him in the back of the patrol car.         Appellant

refused to submit to chemical testing after being advised of the Pennsylvania

Implied Consent Law.

      Appellant was arraigned on June 22, 2015 and his preliminary hearing

was held on August 24, 2015, at which he was represented by private

counsel. The trial court gave Appellant a trial date of November 10, 2015.

On that day, Appellant requested a continuance to allow him to obtain new

private counsel as “financial issues kind of put things on hold.” Trial Court

Opinion (T.C.O.), 6/21/16, at 3. The Honorable Wallace H. Bateman granted

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Appellant’s request and rescheduled Appellant’s trial for December 2, 2015.

Judge Bateman warned Appellant that he would not receive another

continuance to obtain counsel and suggested that if Appellant could not

afford an attorney, he should contact the Public Defender’s Office before

leaving the courthouse.

     On November 28, 2015, Appellant was notified that he did not qualify

for representation by a public defender.       Upon contacting the court

administrator with this information, Appellant was granted a second

continuance and his trial date was rescheduled to February 22, 2016.

     Thereafter, on February 22, 2016, Appellant appeared for his

scheduled trial without counsel and asked Judge Bateman for a third

continuance to obtain counsel as he needed time to “gather the funds to pay

him.” T.C.O. at 5. Judge Bateman noted that the prosecution was ready to

present its case and its witnesses were present.     Judge Bateman denied

Appellant’s request for a continuance as he had been previously given nearly

three months to obtain counsel after he was denied representation by the

public defender.

     The trial court proceeded to hold a bench trial and ultimately convicted

Appellant of the aforementioned offenses. On the same day, the trial court

sentenced Appellant to one to two years imprisonment pursuant to the

applicable mandatory minimum sentencing provisions as this was Appellant’s

fourth DUI conviction. The trial court imposed concurrent two year terms of

probation for the convictions of attempting to elude a police officer and

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resisting arrest, but did not impose further penalty for the summary traffic

violation.   Appellant filed this appeal and complied with the trial court’s

direction to submit a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).

      Appellant claims the trial court abused its discretion in denying his

request for a continuance, which thereby denied Appellant his right to

counsel. Our standard of review of a trial court’s decision to deny a request

for a continuance is as follows:

      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[.]

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

omitted).

      A defendant has the right to the assistance of counsel in a criminal

prosecution under both the Sixth Amendment to the United States

Constitution   and   Article   I,   Section   9   of   the   Constitution   of   the

Commonwealth of Pennsylvania. However, this Court has held that:

      the right of the accused to choose his own counsel, as well as
      the lawyer's right to choose his clients, must be weighed against
      and may be reasonably restricted by the state's interest in the
      swift and efficient administration of criminal justice. Thus, this
      Court has explained that while defendants are entitled to choose
      their own counsel, they should not be permitted to unreasonably

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      clog the machinery of justice or hamper and delay the state's
      efforts to effectively administer justice.

Commonwealth v. Randolph, 582 Pa. 576, 584, 873 A.2d 1277, 1282

(2005) (citations and quotation marks omitted).

      In a similar case, Commonwealth v. Wentz, 421 A.2d 796

(Pa.Super. 1980) (en banc), the defendant claimed the trial court erred in

failing to grant him a continuance on the day of trial so that he could seek

the assistance of counsel.    This Court concluded that the defendant had

waived his right to counsel as he had been notified of his trial date, had been

directed to retain counsel to represent him, but nonetheless appeared

without counsel for his scheduled trial with no reasonable excuse for the lack

of counsel and no concrete plans on obtaining counsel.

      Likewise, in this case, we find Appellant waived his right to counsel by

ignoring the trial court’s repeated directions for him to retain counsel.   On

Appellant’s most recently scheduled trial date, the case had already been

continued twice upon Appellant’s request.      Although Appellant had been

given nearly three additional months to obtain counsel, he failed to make

this arrangement and waited until the date of his scheduled trial to ask for a

third continuance.   Appellant indicated that he was “talking to” another

attorney but wanted more time to “gather the funds to pay him.” T.C.O., at

5.   Besides this assertion, Appellant offered no information concerning his

efforts to acquire funds for his attorney’s fees and did not indicate when he

would be able to retain an attorney. As in Wentz, we find Appellant “denied



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himself the assistance of counsel when he failed to take steps to retain

counsel despite the admonishments of the trial court.” Wentz, 421 A.2d at

799.   As a result, we conclude that the trial court did not err in denying

Appellant’s request for a continuance.

       Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 11/23/2016




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