J-S30021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    DOUGLAS GENE BERRY

                             Appellant                 No. 1433 WDA 2017


             Appeal from the PCRA Order entered August 31, 2017
                In the Court of Common Pleas of Beaver County
               Criminal Division at No: CP-04-CR-0002307-2016


BEFORE: BENDER, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                            FILED AUGUST 21, 2018

        Appellant, Douglas Gene Berry, appeals from the August 31, 2017 order

entered in the Court of Common Pleas of Beaver County, denying his petition

for collateral relief filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. Following review, we reverse and remand.

        The PCRA court provided the following procedural history:

               On November 28, 2016 [Appellant] was charged by criminal
        information      with    one     count     of    flight   to   avoid
        apprehension/trial/punishment, 18 Pa.C.S.A. [§] 5126(a). On
        December 7, 2016, [Appellant] pled guilty [to] the single count of
        flight to avoid apprehension/trial/punishment (as a misdemeanor
        of the second degree) and was sentenced to a period of
        incarceration of not less than 12 months nor more than 24 months
        in a state penal or correctional institution. This plea and sentence
        in this case was entered pursuant to the terms of a plea

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       agreement. At the time scheduled for his plea and sentencing,
       [Appellant] was not represented by counsel. The Assistant District
       Attorney advised the court that he [had] spoken with [Appellant]
       prior to the time the case was called and was informed that the
       attorney who had represented him at the time of the preliminary
       hearing was no longer representing [Appellant] and that he would
       not [sic] be appearing pro se.

              The Assistant District Attorney provided [Appellant] with a
       written and verbal guilty plea colloquy which [Appellant]
       completed and signed.[1] Additionally, [Appellant] was provided
       with, and signed a notice of rights following sentence form which
       indicates his right to file an appeal from the imposition of sentence
       within 30 days or to file a post sentence motion.[2] [Appellant] did
       not file a post sentence motion or a direct appeal within the
       statutory time limits to preserve his right of appeal.

              On or about April 13, 2017, [Appellant] filed a pro se [PCRA
       petition] and subsequently, this court appointed the Beaver
       County Public Defender’s office to represent him for purposes of
       his motion/petition. The Assistant Public Defender incorporated
       [Appellant’s] pro se motion for relief in his own motion and
       attached it as Exhibit “A.” In his motion, [Appellant] asserts
       claims of ineffective assistance of counsel, and what appears to
       be an argument on the merits of his case.
____________________________________________


1 The written guilty plea colloquy included, inter alia, the following information
regarding appeals from a guilty plea conviction:

       If you cannot afford a lawyer to represent you and/or you are
       contending that your attorney, who represented you at your guilty
       plea, was incompetent, you have the right to have another lawyer
       appointed for you[.]

Guilty Plea Written Colloquy, 12/7/16, at ¶ 20. With his initials, Appellant
indicated his understanding of the matters addressed in that paragraph.

2 The notice included language indicating Appellant had “the right to the
assistance of an attorney to prepare the [post-sentence] motion and file the
appeal. If you cannot afford to pay an attorney to prepare and file any of the
papers mentioned above, and you qualify as an indigent person, the Court will
appoint an attorney to assist you free of charge.” Notice of Rights Following
Sentence, 12/7/16, at 1.

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PCRA Court Rule 907 Notice of Intention to Dismiss, 8/7/17, at 1-2 (footnotes

and some capitalization omitted). In its notice, the PCRA court explained its

determination that Appellant did not articulate eligibility grounds for PCRA

relief and that his petition would be dismissed without a hearing. Id. at 2. By

order entered August 31, 2017, the PCRA court dismissed the petition and

advised Appellant of his right to file an appeal to this Court within thirty days

of the entry of the court’s order.

        Appellant filed a timely pro se notice of appeal. The court did not order

the filing of a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

On October 3, 2017, the PCRA court issued an opinion in accordance with

Pa.R.A.P. 1925(a), indicating that the reasons for its August 31, 2017 order

were set forth in its Rule 907 Notice of Intent to Dismiss filed on August 7,

2017.

        Appellant asks us to consider the following issue on appeal:

        I.    Whether the Appellant knowingly, intelligently, and
              voluntarily waived his right to counsel and exercised his
              right of self-representation?

Appellant’s Brief at 7.

        As our Supreme Court has explained, “[R]eview of a PCRA court’s

decision is limited to examining whether the PCRA court’s findings of fact are

supported by the record, and whether its conclusions of law are free from legal

error.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (quoting

Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa. 2011) (additional citation

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omitted)). “We review the findings of the PCRA court and the evidence of

record in a light most favorable to the prevailing party.” Id.

      As the PCRA court recognized:

      The right to self-representation is necessarily implied within the
      structure of the Sixth Amendment of the U.S. Constitution. Before
      a defendant will be permitted to proceed pro se, the defendant
      must knowingly, voluntarily, and intelligently waive his Sixth
      Amendment right to counsel. To ensure a proper waiver, the trial
      court must conduct a “probing colloquy,” as was described by the
      Pennsylvania Supreme Court in [Commonwealth v. Starr, 664
      A.2d 1326 (Pa. 1995)].

PCRA Court Rule 907 Notice of Intention to Dismiss, 8/7/17, at 5 (citations

omitted). In Starr, our Supreme Court explained that the trial court must

make an inquiry into whether the defendant is aware of his right to counsel

and aware of the consequences of waiving that right.        Starr, 664 A.2d at

1335. In Commonwealth v. Johnson, 158 A.3d 117 (Pa. Super. 2107), we

explained:

      It is the responsibility of the trial court to ensure that a colloquy
      is performed if the defendant has invoked his right to self-
      representation. See Commonwealth v. Davido, 582 Pa. 52,
      868 A.2d 431, 437–38 (2005). “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. Deprivation of
      these rights can never be harmless.”            Commonwealth v.
      Payson, 723 A.2d 695, [699-]700 (Pa. Super. 1999) (citations
      omitted). “Courts indulge every reasonable presumption against
      waiver of fundamental constitutional rights and that we do not
      presume acquiescence in the loss of fundamental rights. A waiver
      is ordinarily an intentional relinquishment or abandonment of a
      known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464,
      58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (footnotes and citations
      omitted).


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Id. at 121.

      Pennsylvania Rule of Criminal Procedure 121, Waiver of Counsel, sets

forth the required areas of inquiry for waiver of counsel, and provides, in

relevant part:

      (2) To ensure that the defendant's waiver of the right to counsel is
      knowing, voluntary, and intelligent, the judge or issuing authority, at a
      minimum, shall elicit the following information from the defendant:

      (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;

      (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.

      (3) The judge or issuing authority may permit the attorney for the
      Commonwealth or defendant’s attorney to conduct the

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       examination of the defendant pursuant to paragraph (A)(2). The
       judge or issuing authority shall be present during this
       examination.

Pa.R.Crim.P. 121(A)(2)-(3).

       Particularly relevant to his case is the requirement under Pa.R.Crim.P.

121(A)(2)(a), that the colloquy include inquiry into “whether or not . . . the

defendant understands that he has the right to be represented by counsel,

and the right to have free counsel appointed if he is indigent[.]” Starr, 664

A.2d at 1335.3

       Here, at Appellant’s guilty plea hearing, the prosecutor explained to the

court:

       Your Honor, before I begin, I did have an opportunity to speak
       with [Appellant] before we, he was brought up here. I know he
       was represented by Komron Maknoon at the preliminary hearing.
       Since then, I believe, he has ended his representation with Mr.
       Maknoon, or they ended their relationship. He is appearing [] pro
       se.

       I have spoken to him about, you know, he does have the right to
       get counsel. He always has that right. I don’t want to force
       anything upon him. I went over the agreement with him. I went
       over his guilty plea. He is prepared to plea[d] today.

Notes of Testimony (N.T.), Guilty Plea Hearing, 12/7/16, at 2. The trial court

then questioned Appellant in the following exchange:

       THE COURT: Clearly, this, this, you had an attorney represent
       you at the time of the preliminary hearing in this case?

       [APPELLANT]: Yes, I did.
____________________________________________


3At issue in Starr was Pa.R.Crim.P. 318, which has since been renumbered
as Pa.R.Crim.P. 121.

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     THE COURT: His name is Maknoon?

     [PROSECUTOR]: Komron Maknoon.

     THE COURT: Maknoon, and he signed off on a plea agreement for
     you at the time?

     [APPELLANT]: Yes, he did, yep.

     THE COURT: And well, I can’t force him to come here today - -

     [APPELLANT]: No, no, that’s fine. I, I - -

     THE COURT: I have to make - -

     [APPELLANT]: I think this is the best way to go unfortunately.

     THE COURT: It may be. I have to make sure you understand that
     you have a right to counsel now, you have a right to ask for a jury
     trial and go to trial on this case.

     [APPELLANT]: I’d like to just get it over with, Your Honor.

                              ***
     THE COURT: First, I got, got to make sure you understand you
     have a right to counsel.

     [APPELLANT]: Yep.

     THE COURT: And whether you go to trial or enter a plea, you have
     that right, and you’re waiving that right now formally on the
     record. You don’t have a lawyer to represent you at this juncture?

     [APPELLANT]: That’s right.

     THE COURT: Okay.

     [PROSECUTOR]: And your Honor, I can go over the colloquy with
     him.

     THE COURT: Go, go for it. Thank you, sir.




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Id. at 3-5. The prosecutor proceeded to inquire into Appellant’s education,

his understanding of the plea and possible penalties, his right to a trial by jury,

and the waiver of rights resulting from his guilty plea. However, his inquiries

related to the guilty plea rather than waiver of the right to counsel as reflected

in the following exchange:

      [PROSECUTOR]: Did we go over, did I go downstairs with this
      document known as a Guilty Plea Colloquy, do you recognize this
      document?

      [APPELLANT]: Oh, yes.

      [PROSECUTOR]: Okay. It’s a four-page document, and it’s about
      your rights that you have in this case. Did we go over each of
      these questions?

      [APPELLANT]: Yes, we did.

                                   ***

      [PROSECUTOR]: Do you have any questions about this Guilty Plea
      Form?

      [APPELLANT]: None at all.

      [PROSECUTOR]: Okay. If I were to ask you each and every one
      of these questions under oath, would your answers by the same?

      [APPELLANT]: Yes.

Id. at 7-8. The prosecutor then moved for admission of the guilty plea form,

which the trial court admitted and made part of the record of the hearing. Id.

at 8-9.

      Appellant argues that the trial court’s “complete failure [at the plea

hearing] to explain to the Appellant that he could be provided with a free


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attorney if he was indigent” supports his contention that he did not

knowingly, voluntarily or intelligently waive his right to counsel. Appellant’s

Brief at 19 (emphasis added). We are constrained to agree. Clearly, Appellant

acknowledged his right to counsel and expressed his desire to “get it over

with.” N.T., Guilty Plea Hearing, 12/17/16, at 3-4. However, the trial court

failed to conduct the “probing colloquy” mandated by Rule 121(A)(2). As this

Court explained in Commonwealth v. Phillips, 93 A.3d 847 (Pa. Super.

2014):

       Failure to conduct a thorough on-the-record colloquy before
       allowing a defendant to proceed to trial pro se constitutes
       reversible error. “A waiver colloquy is a procedural device; it is
       not a constitutional end or a constitutional ‘right.’ Citizens can
       waive their fundamental rights in the absence of a colloquy;
       indeed, waivers can occur by conduct or by implication, as in the
       case of a criminal trial conducted in absentia after the defendant
       fails to appear.” Commonwealth v. Mallory, 596 Pa. 172, 189,
       941 A.2d 686, 697 (2008).

Id. at 853 (citation omitted).

       Here, Appellant acknowledged his right to counsel and indicated his

desire to “get it over with,” but there is no indication he understood he was

entitled to counsel, free of charge, if indigent.4 Moreover, although Appellant

was represented at his preliminary hearing, there is no indication he was

represented by that attorney beyond the preliminary hearing stage. As this



____________________________________________


4 While we do not presume Appellant’s indigent status at the time of the
colloquy, we do note that he was granted in forma pauperis status for the
instant appeal.

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Court reiterated in Phillips, “[A] judge’s thorough inquiry into the accused’s

appreciation of both [the right to counsel and the right to represent oneself]

must be used in certain summary proceedings, at trial, guilty plea hearings,

sentencing, and every ‘critical stage’ of a criminal proceeding.” Id. at 854

(quoting Commonwealth v. Baker, 464 A.2d 496, 499 (Pa. Super. 1983)

(alterations in original)).

       Citing Commonwealth v. Rachak, 62 A.3d 389, 395 (Pa. Super.

2012), the Commonwealth contends Appellant is not entitled to relief under

the PCRA because he did not seek to withdraw his guilty plea, despite being

provided information regarding the requirements for doing so and the

ramifications for failing to do so.       Commonwealth Brief, at 5-6.   However,

Rachak is inapposite. There, the appellant argued in his PCRA petition that

he did not enter into his guilty plea knowingly because he was unaware of the

immigration consequences stemming from a conviction for the crimes to which

he pled guilty. We agreed that the appellant should have raised this issue on

direct appeal and his failure to do so resulted in waiver under 42 Pa.C.S.A.

§ 9544(b).5 Id. at 395-96. By contrast, at issue here is the constitutional

right to counsel. As we noted in Johnson:


____________________________________________


5 “An issue is waived if the petitioner could have raised it but failed to do so
before trial, at trial, during unitary review, on appeal or in a prior post-
conviction proceeding.” 42 Pa.C.S.A. § 9544(b).




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       “Where the parties fail to preserve an issue for appeal, the
       Superior Court may not address that issue sua sponte.”
       Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874, 891
       (2010) (quoting Steiner v. Markel, 600 Pa. 515, 968 A.2d 1253,
       1257 (2009)). However, . . . “as a general rule, failure to raise
       an issue in a criminal proceeding does not constitute a waiver
       where the defendant is not represented by counsel in the
       proceeding. This rule does not apply where the defendant
       knowingly and intelligently waived representation by counsel.”
       Commonwealth v. Monica, 528 Pa. 266, 597 A.2d 600, 603
       (1991) (citation omitted).

Johnson, 158 A.3d at 121.

       Because a guilty plea hearing is a critical stage and Appellant was not

properly informed of his rights on the record, we are constrained to find that

Appellant did not knowingly, voluntarily, and intelligently waive his right to

counsel.    The trial court’s failure to conduct a colloquy in accordance with

Pa.R.Crim.P. 121(A)(2) prior to the guilty plea hearing requires us to reverse

the PCRA court’s August 31, 2017 order dismissing Appellant’s PCRA petition,

vacate Appellant’s judgment of sentence, and remand for a new guilty plea

hearing.    If on remand Appellant is represented by counsel but wishes to

proceed pro se, the court shall conduct a Grazier6 hearing.       If Appellant

appears pro se, the court shall conduct a colloquy that complies with

Pa.R.Crim.P. 121(A)(2).




____________________________________________


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

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      Order reversed. Judgment of sentence vacated. Case remanded for

further   proceedings   consistent   with     this   Memorandum.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2018




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