J-S31008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

KURT OSTRANDER,

                        Appellant                   No. 1439 MDA 2014


           Appeal from the Judgment of Sentence July 29, 2014
              In the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0004288-2012


COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

KURT OSTRANDER,

                        Appellant                   No. 1440 MDA 2014


       Appeal from the Judgment of Sentence Entered July 29, 2014
              In the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0005003-2012

BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

MEMORANDUM BY BENDER, P.J.E.:                         FILED JUNE 25, 2015

      Appellant, Kurt Ostrander, appeals from the judgment of sentence of

two concurrent terms of six (6) months’ to 729 days’ imprisonment, followed

by two years’ probation, imposed after the trial court revoked Appellant’s

parole and re-sentenced him at a Gagnon II hearing on July 29, 2014.

Appellant challenges the validity of his waiver of counsel at said hearing. We
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vacate the judgment of sentence and remand this case for a new Gagnon II

hearing.

     The trial court outlined the procedural history of this case in its

1925(a) opinion as follows:

           [Appellant] pled guilty to multiple charges on the above-
     captioned dockets on March 6, 2013.1 On the same dockets,
     Appellant admitted to violating the terms of his probation during
     a Gagnon II hearing on July 29, 2014, and he was resentenced
     the same day.2      Appellant filed a post-sentence motion on
     August 6, 2014, which [the trial court] denied on August 18,
     2014.
           1
            On docket 4288 of 2012, Appellant pled guilty to theft by
           unlawful taking, 18 Pa.C.S.[] § 3921(a), and possession of
           a controlled substance, 35 P.S. § 780-113(a)(16). On
           docket 5003 of 2012, Appellant pled guilty to possession of
           a controlled substance, 35 P.S. § 780-113(a)(16). For
           each of the three charges, Appellant was sentenced [to] a
           probationary term of two years, all to run concurrently.
           2
              On docket 4288 of 2012, Appellant was sentenced to
           two concurrent terms of six months[’] to 729 days’
           incarceration, with credit for eighty days’ time served. On
           docket 5003 of 2012, Appellant was sentenced to two
           years’ probation, consecutive to the sentence imposed at
           count one of docket 4288 of 2012.

            The instant appeal has a convoluted history. Appellant
     filed a notice of appeal on August 27, 2014, and we ordered the
     filing of a concise statement of errors pursuant to Rule 1925(b)
     of the Pennsylvania Rules of Appellate Procedure. Appellant filed
     a timely concise statement on September 19, 2014, which we
     considered in a 1925(a) opinion dated October 7, 2014. In
     another opinion, dated November 3, 2014, this Court explained
     why we denied Appellant’s petition for bail pending appeal.

     On December 15, 2014, the Superior Court filed an order
     directing that we appoint counsel for Appellant for purposes of
     his appeal. The next day, we appointed Douglas Waltman,
     Esquire, as conflict counsel. A new concise statement was filed
     on January 13, 2015.

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Trial Court Opinion (TCO), dated 2/24/15, at 1.

      Appellant now presents the following question for our review:

      Whether the sentencing court reversibly erred in conducting a
      Gagnon II hearing and re-sentencing [A]ppellant on July 29,
      2014, where [A]ppellant was not represented by counsel and
      where the record does not support an ascertainment that
      [A]ppellant knowingly, intelligently, and voluntarily waived
      counsel with regard to the Gagnon II proceeding?

Appellant’s Brief, at 7.

      We begin by noting our standard of review.            The determination of

whether a waiver of counsel is valid is a question of law. “For questions of

law, our scope of review is plenary and standard of review is de novo.”

Commonwealth v. El, 933 A.2d 657, 662 (Pa. Super. 2007).

      In Commonwealth v. McDonough, 812 A.2d 504 (Pa. 2002), our

Supreme Court stated the following:

      The right to counsel in a criminal proceeding is a fundamental
      right guaranteed by the Sixth Amendment of the United States
      Constitution and Article One, Section Nine of the Pennsylvania
      Constitution.     A defendant may, however, waive this
      fundamental right and proceed with his defense pro se. If a
      defendant desires to do so, he must petition the court and the
      court must follow the appropriate legal procedure for securing a
      valid waiver of counsel.

Id. at 506 (citations omitted).

      Rule 121 of the Pennsylvania Rules of Criminal Procedure governs

waiver of counsel and provides the following safeguards to ensure that such

waiver is done knowingly, voluntarily, and intelligently:

      (2) To ensure that the defendant’s waiver of the right to counsel
      is knowing, voluntary, and intelligent, the judge or issuing


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        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.

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

        Appellant argues that there is no Rule 121 waiver in the record in this

case.    Appellant’s Brief, at 9.   We agree.   An examination of the record

indicates that the following exchange took place at the Gagnon II hearing on

July 29, 2014:

        District Attorney:     Again, he says he does not wish to
                               proceed with counsel. Your honor, we’re
                               set for a formal Gagnon hearing.

        The Court:             Yes.



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     District Attorney:      [Appellant] has just informed me that he
                             is not contesting any of the violations. I
                             have been in discussions with just
                             proceeding with three of them anyway,
                             the failure to abstain from controlled
                             substances, failure to abstain from
                             alcohol, and failure to comply with
                             chemical testing.    So at this point, I
                             believe he is waiving his right to counsel
                             and admitting that he’s in violation of his
                             supervision.

                             …

     The Court:              You acknowledge that you were in
                             violation of your probation and your
                             parole for the reasons that have been set
                             forth and because of your drinking?

     Appellant:              ([Appellant] moves head vertically.) Yes,
                             Your Honor.

     The Court:              All right. All right. At 4288 of 2012, at
                             Counts 1 and 2, [Appellant] having
                             admitted the violations, I find that he is
                             in violation of his probation.

                             …

                             All right. Now, we have No. 5003 of
                             2012 which was another probationary
                             sentence, correct?

     Appellant:              Yes, Your Honor.

     Probation Officer:      Yes.

     The Court:              All right. [Appellant] has admitted the
                             violation there.   I find that he’s in
                             violation.

TCO, at 2-3. (citations omitted).




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        Despite the fact that Appellant appeared before the trial court on

several prior occasions without the assistance of counsel, case law dictates

that:

        an effective waiver of counsel must include a colloquy that
        contains an inquiry into the six areas listed [in Rule 121],
        conducted on the record by the judge. ‘[A]ny shortcoming
        relative to this colloquy cannot be gauged to the quality of an
        accused’s self-representation nor justified on the basis of his
        prior experience with the system.’

Commonwealth v. Payson, 723 A.2d 695, 704 (Pa. Super. 1999) (quoting

Commonwealth v. Lloyd, 535 A.2d 1152, 1163 (Pa. Super. 1988).

        The Commonwealth and the trial court concede that the required Rule

121 colloquy was not conducted by the court at the Gagnon II hearing and,

therefore, that this case should be remanded for a new Gagnon II hearing.

We concur and remand this case for a new Gagnon II hearing at which time

Appellant may be represented by counsel or Appellant may waive his right to

counsel after the trial court conducts a thorough colloquy pursuant to

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

        Judgment of sentence vacated.       Case remanded.       Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/25/2015



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