J-S51012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

LUIS FERNANDO RIVERA, JR.

                         Appellant                       No. 677 EDA 2015


         Appeal from the Judgment of Sentence February 24, 2015
          In the Court of Common Pleas of Northampton County
           Criminal Division at No(s): CP-48-CR-0001475-2013


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                      FILED OCTOBER 02, 2015

      Appellant, Luis Fernando Rivera, Jr., appeals pro se from the judgment

of sentence entered in the Northampton County Court of Common Pleas,

following revocation of his probation. For the following reasons, we remand

the matter to the trial court for further proceedings.

      The relevant facts and procedural history of this appeal are as follows.

On September 24, 2013, Appellant entered a guilty plea at CP-48-CR-

0001475-2013 (“No. 1475-2013”) to driving under the influence of a

controlled substance and driving with a suspended license (DUI related).

That same day, the court sentenced Appellant to 60 months’ intermediate

punishment for the DUI, plus 90 days’ imprisonment for the suspended

license offense.

_________________________

*Retired Senior Judge assigned to the Superior Court.
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      Appellant sustained new charges of DUI/DUS, small amount of

marijuana, and other traffic summaries on May 14, 2014.       Appellant was

again arrested in June 2014, for possession of small amount of marijuana

and another DUS.       Appellant pled guilty to the May 2014 charges in June

2014, and to the June 2014 charges in November 2014.

      On January 7, 2015, counsel was court-appointed to represent

Appellant for a petition Appellant had filed pro se under the Post Conviction

Relief Act (“PCRA”) in Northampton County on December 15, 2014, in an

unrelated case (No. 2686-2014). On February 20, 2015, counsel appeared

before the court on Appellant’s behalf for that PCRA petition.     The court

addressed the PCRA petition in the unrelated case and granted Appellant the

relief he requested.

      Within days, the court learned of Appellant’s probation detainer in the

September 2013 case (No. 1475-2013) and contacted counsel to appear

before the court to deal with the VOP proceedings and to revoke the house

arrest the court had previously granted Appellant at the PCRA hearing in No.

2686-2014. On February 24, 2015, a Gagnon II Probation Violation (“VOP”)

hearing was held and counsel attended, although counsel was not formally

appointed to represent Appellant.    Nevertheless, the court noted counsel’s

presence at the VOP proceeding, with counsel’s demurral on representation,

where the court and counsel heard for the first time the details about

Appellant’s guilty pleas to the additional offenses and his probation


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violations.    The court revoked Appellant’s intermediate punishment at No.

1475-2013 and resentenced Appellant on the September 2013 convictions to

six (6) to twenty-four (24) months’ imprisonment.

         Two days later, on February 26, 2015, counsel filed a motion for

reconsideration of sentence on Appellant’s behalf, which the court denied on

March 2, 2015. On March 10, 2015, Appellant timely filed a pro se notice of

appeal but listed counsel’s name on the bottom of the notice.        The court

contacted counsel, who responded to the court that he was not counsel of

record for Appellant’s VOP case and asked the court to treat the appeal as

filed pro se and deal with Appellant directly.

         On March 16, 2015, the trial court granted Appellant leave to proceed

in forma pauperis (“IFP”) in all matters filed with the Superior and Supreme

Court of Pennsylvania, pursuant to Pa.R.A.P. 552. On March 16, 2015, the

court also ordered Appellant to file a concise statement of errors complained

on appeal no later than twenty-one (21) days from the date of the order, in

accordance with Pa.R.A.P. 1925(b). A copy of that Rule 1925(b) order was

sent to both counsel and Appellant.              Neither counsel nor Appellant

responded. Instead, on March 23, 2015, counsel filed a motion in this Court

to withdraw as counsel of record for this case, because counsel had not been

appointed to represent Appellant. This Court referred the motion to the trial

court.     On April 17, 2015, the trial court granted counsel’s motion to

withdraw and simply announced that Appellant would continue to proceed


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pro se with his appeal.    On that same day, the court issued an opinion

pursuant to Pa.R.A.P. 1925, concluding Appellant waived his issues on

appeal because he had failed to file a Rule 1925(b) statement within 21

days, as ordered. Thereafter, Appellant filed his Rule 1925(b) statement pro

se on May 7, 2015.

      As a significant, prefatory matter, Appellant’s current pro se status

presents us with a question of whether Appellant was effectively deprived of

his right to counsel on this appeal:

         [I]n all criminal prosecutions, the accused shall enjoy the
         right…to have the Assistance of Counsel for his [defense].
         The purpose of this right is to protec[t] the unaided
         layman at critical confrontations with his expert adversary,
         the government, after the adverse positions of government
         and defendant have solidified with respect to a particular
         alleged crime.

Commonwealth v. Romine, 682 A.2d 1296, 1298-99 (Pa.Super. 1996) (en

banc), appeal denied, 547 Pa. 754, 692 A.2d 565 (1997) (internal citations

and quotation marks omitted).          “However, this constitutional right [to

counsel] does not justify forcing counsel upon an accused who wants

none…and,     in every criminal case       an accused can    waive   whatever

Constitutional rights he possesses, if the waiver is intelligently and

understandingly made….” Commonwealth v. Sliva, 415 Pa. 537, 539-40,

204 A.2d 455, 456 (1964) (internal citations and quotation marks omitted).

         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

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         these rights can never be harmless. The constitutional
         right to counsel may be waived, but this waiver is valid
         only if made with knowledge and intelligence.

         In order to make a knowing and intelligent waiver, the
         individual must be aware of both the nature of the right
         and the risks and consequences of forfeiting it. Moreover,

            the presumption must always be against the
            waiver of a constitutional right. Nor can waiver
            be presumed where the record is silent. The
            record must show, or there must be an allegation
            and evidence which shows, that an accused was
            offered counsel but intelligently and understandingly
            rejected the offer.

         Thus, for this Court to uphold such a waiver, the record
         must clearly demonstrate an informed relinquishment of a
         known right.

Commonwealth v. Houtz, 856 A.2d 119, 122 (Pa.Super. 2004) (internal

citations and quotation marks omitted) (emphasis added).            See also

Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998) (holding court

must determine on record that indigent defendant wants to proceed pro se

on appeal, to ensure waiver of counsel is knowing, intelligent and voluntary).

      Instantly, counsel was appointed to represent Appellant at PCRA

proceedings in an unrelated matter, but was not formally appointed to

represent Appellant at the VOP hearing.    Two days later, on February 26,

2015, counsel filed a motion for reconsideration of sentence on Appellant’s

behalf, which the court denied on March 2, 2015.        On March 10, 2015,

Appellant timely filed a pro se notice of appeal but listed counsel’s name on

the bottom of the notice.   The court contacted counsel, who responded to


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the court that he was not counsel of record for Appellant’s VOP case and

asked the court to treat the appeal as filed pro se and deal with Appellant

directly.

      On March 16, 2015, the trial court granted Appellant IFP status in all

matters filed with the Superior and Supreme Court of Pennsylvania,

pursuant to Pa.R.A.P. 552.     On March 16, 2015, the court also ordered

Appellant to file a concise statement of errors complained on appeal no later

than twenty-one (21) days from the date of the order, in accordance with

Pa.R.A.P. 1925(b).   A copy of that Rule 1925(b) order was sent to both

counsel and Appellant. Neither counsel nor Appellant responded. Instead,

counsel filed a motion in this Court, to withdraw his name as counsel of

record, which this Court deferred to the trial court for resolution. On April

17, 2015, the trial court granted counsel’s motion to withdraw and simply

announced that Appellant would “continue” to proceed with his appeal pro

se.   On that same day, the court issued its opinion pursuant to Pa.R.A.P.

1925, concluding Appellant had waived his issues on appeal because he

failed to file a concise statement of errors complained of on appeal within 21

days, as ordered. Appellant filed his Rule 1925(b) statement pro se on May

7, 2015.

      Notably, the record lacks any indicia that Appellant wanted to proceed

pro se on appeal and/or that the trial court ensured Appellant had

knowingly, intelligently, and voluntarily waived his constitutional right to


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counsel on direct appeal.     See Grazier, supra; Sliva, supra.          Under

established Pennsylvania law, we cannot presume Appellant’s waiver. See

Houtz, supra. Consequently, we remand this case to the trial court for a

total of ninety (90) days.     Upon remand, the court must immediately

conduct a full Grazier hearing without delay to determine if Appellant wants

to proceed pro se on his direct appeal. If the court is convinced Appellant

wants to proceed pro se, Appellant shall proceed with his appeal.        In an

opinion, the court shall address the issue raised in Appellant’s Rule 1925(b)

statement, filed May 7, 2015, and immediately return the complete record to

this Court, including the Grazier hearing transcript.

      Alternatively, if Appellant does not want to proceed pro se or fails to

demonstrate a valid waiver of counsel, the court must appoint new counsel

to assist Appellant on appeal and notify this Court of the appointment.

Counsel must consult with Appellant and be permitted to file an amended

Rule 1925(b) statement if necessary. In an opinion, the court shall address

the issues raised in Appellant’s Rule 1925(b) statement, filed May 7, 2015,

and in the amended statement, if filed. Counsel must also file a brief with

this Court. All of these matters must be completed within the same 90-day

remand period. The Commonwealth shall have thirty (30) days to respond

or notify this Court that the Commonwealth does not intend to do so.

Accordingly, we remand for further proceedings consistent with this decision.

      Case remanded with instructions. Panel jurisdiction is retained.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2015




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