Commonwealth v. Floyd

257 A.3d 13

COMMONWEALTH of Pennsylvania

v.Charles FLOYD, Appellant

No. 84 MDA 2019

Superior Court of Pennsylvania.

Submitted September 30, 2019

Filed December 16, 2020

Reargument Denied February 23, 2021

James Jude Karl, Harrisburg, for appellant.

Ryan Hunter Lysaght, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

OPINION BY DUBOW, J.:

Appellant, Charles Floyd, has appealed from two Judgments of Sentence entered in the Dauphin County Court of Common Pleas, one entered after Appellant entered a negotiated guilty plea to Possession with Intent to Deliver ("PWID"), Criminal Use of a Communication Facility, and Possession of Drug Paraphernalia,¹ and the other entered following the consequent revocation of Appellant's sentence of intermediate punishment ("IP") imposed for a prior conviction.² On January 4, 2019, Appellant timely filed one Notice of Appeal listing both lower court docket numbers. We conclude that because the trial court did not inform Appellant of his appellate rights as required by our rules of criminal procedure, a breakdown in the operation of the court as discussed in Commonwealth v. Larkin , 235 A.3d 350, ––––, 2020 PA Super 163, at *3 (2020) (en banc ) occurred. Thus, we decline to quash this appeal based on Commonwealth v. Walker , 646 Pa. 456, 185 A.3d 969, 977 (2018).

Additionally, with this appeal, Appellant's counsel, James J. Karl, Esquire, seeks to withdraw from representing Appellant pursuant to Anders .³ Following our review of the record, we conclude that the trial court committed reversible error by failing to provide appropriate waiver-of-counsel colloquies before allowing Appellant to proceed pro se at each critical stage of the proceeding. Accordingly, we vacate Appellant's guilty plea, vacate Appellant's Judgments of Sentence, deny counsel's Application for Leave to Withdraw as Counsel, and remand for further proceedings.⁴

The relevant facts and procedural history, as gleaned from the certified record, are as follows. On April 9, 2018, the Commonwealth charged Appellant with the above offenses at Docket Number 2833-2018.⁵ Initially, Gregory Mills, Esquire, an assistant public defender, represented Appellant. However, after the preliminary hearing, Appellant began filing pro se motions, including a Motion to Suppress and a Petition for Writ of Habeas Corpus . Appellant also requested that the court permit him to "terminate" Attorney Mills's representation of him.

On August 28, 2018, the trial court held a status conference to ascertain whether Appellant wished to waive his right to counsel. After the court conducted an abbreviated colloquy, Appellant stated that he would represent himself.⁶ The court thereafter permitted Attorney Mills to withdraw as counsel, and permitted Appellant to proceed pro se with Attorney Mills as standby counsel.

On September 5, 2018, the trial court held a hearing on Appellant's Suppression Motion and Habeas Corpus Petition at which Appellant represented himself pro se , with Attorney Mills serving as standby counsel. The court did not conduct a waiver-of-counsel colloquy at the hearing. Following the hearing, the court denied Appellant's Motion and his Petition.

On December 12, 2018, Appellant appeared pro se , with Attorney Mills as standby counsel, and entered guilty pleas to the above charges pursuant to the terms of a negotiated agreement. The trial court did not conduct a waiver of counsel colloquy prior to accepting the guilty plea.

On December 21, 2018, Appellant appeared for sentencing. Although the court again neglected to conduct a waiver of counsel colloquy, Appellant represented himself with Hillary Hall, Esquire, an assistant public defender, serving as standby counsel. The trial court sentenced Appellant, at Docket Number 2833-2018, to a negotiated sentence of two concurrent terms of 6 to 23 months’ incarceration and costs and fines. At the same hearing, the court revoked Appellant's IP sentence at Docket Number 1694-2012, and imposed an 8- to 23-month’ sentence of incarceration, concurrent to the 6- to 23-month sentence imposed at Docket Number 2833-2018.

Relevant to the issues in this appeal, after imposing Appellant's sentence, the court failed to inform Appellant of his appellate rights and failed to ascertain from stand-by counsel if Appellant was aware of his appellate rights. On January 4, 2019, Appellant timely filed one Notice of Appeal listing both lower court docket numbers.

On February 13, 2019, Appellant pro se filed a court-ordered Pa.R.A.P. 1925(b) Statement. On February 29, 2019, the trial court appointed Attorney Karl to represent Appellant and directed counsel to file a Rule 1925(b) Statement. On March 20, 2019, Attorney Karl filed a Statement of Intent to File Anders /McClendon Brief in Lieu of Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(c)(4). The trial court did not file a responsive Pa.R.A.P. 1925(a) Opinion.

On March 26, 2019, this Court issued a Rule to Show Cause why we should not quash Appellant's appeal in light of Walker , 185 A.3d at 977 (stating that "when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed. The failure to do so will result in quashal of the appeal." (citing Pa.R.A.P. 341 )). Appellant filed a Response noting, inter alia , the trial court's failure to advise Appellant of his appellate rights. On April 29, 2019, this Court issued an Order discharging the Rule to Show Cause and deferring the issue to the merits panel.

Walker Issue

As noted above, Appellant has appealed from two Judgments of Sentence but filed only one Notice of Appeal. At first blush, this appears to be a clear violation of Walker ’s prohibition of this practice, requiring quashal of this appeal.

However, as noted above, we conclude that quashal is unnecessary in light of this Court's recent decision in Larkin , 2020 PA Super 163 at *3, 235 A.3d 350. In Larkin , the PCRA court entered an order dismissing the defendant's PCRA petition, in which the defendant had sought PCRA relief relating to more than one docket. Id. at *2. The PCRA court's dismissal order informed the defendant that he had thirty days from the date of the order "to file an appeal." Id. at *3 (emphasis in original). The defendant timely filed a notice of appeal listing both of his criminal docket numbers. We declined to quash the appeal on the ground that the order's reference to "an appeal" misled the defendant into filing a single notice of appeal, thus constituting a breakdown in the court's operation. Id. (citing Commonwealth v. Stansbury , 219 A.3d 157, 159-60 (Pa. Super. 2019) (noting that "we have many times declined to quash a[ defective] appeal when the defect resulted from an appellant's acting in accordance with misinformation relayed to him by the trial court" and holding that this Court can overlook such defects because the purveyance of misinformation by the court constitutes a breakdown in the court's operations)).

Here, Appellant's failure to file separate Notices of Appeal resulted not from the purveyance of misinformation but rather from the trial court's total neglect in informing Appellant in the first instance of his appellate rights. The Pennsylvania Rules of Criminal Procedure require the trial court, at the time of sentencing, to "determine on the record that the defendant has been advised of ... the right to ... appeal[.]" Pa.R.Crim.P. 704(C)(3)(a). See also Pa.R.Crim.P. 708(D)(3)(a) (When the court has determined that the defendant has violated his probation or parole, "[t]he judge shall advise the defendant on the record ... of the right to ... appeal[.]").

Instantly, the trial court did not advise Appellant of his appellate rights after imposing sentence or determine on the record that Appellant had been advised of his appellate rights. Subsequently, Appellant filed one Notice of Appeal listing both trial court docket numbers. We conclude that the trial court's failure to inform Appellant of his appellate rights as required by the Rules of Criminal Procedure constitutes a breakdown in the operation of the court. Accordingly, pursuant to the holding in Larkin , we decline to quash Appellant's appeal.

Appellate Issues

On August 1, 2019, Attorney Karl filed Application for Leave to Withdraw as Counsel and an Anders Brief raising numerous issues, which counsel asserted lack merit.⁷ However, counsel also raised, analyzed, and provided advocacy in support of, two meritorious issues pertaining to the adequacy of the trial court's waiver-of-counsel colloquy at Appellant's August 28, 2018 hearing and the court's failure to conduct a waiver-of-counsel colloquy at all subsequent proceedings including Appellant's revocation hearing. See Anders Brief at 18-22, 26-29. Neither Appellant nor the Commonwealth filed a Response addressing any of the issues raised in counsel's Anders Brief.

Because counsel has provided advocacy in support of two issues of arguable merit, we address those issues first.

Waiver of Counsel Colloquy

Appellant asserts that his August 28, 2018 waiver-of-counsel colloquy was inadequate and that the court failed to colloquy him at all subsequent proceedings, including any of the proceedings revoking his IP.⁸ Id .

When a defendant seeks to waive the right to counsel, the trial court must conduct on the record a full and complete waiver colloquy to determine whether the defendant's waiver is knowing, voluntary, and intelligent. Commonwealth v. Brazil , 549 Pa. 321, 701 A.2d 216, 219 (1997). See Commonwealth v. Johnson , 158 A.3d 117, 122 (Pa. Super. 2017) (stating that the court must conduct a "thorough inquiry into the accused's appreciation of both [the right to counsel and the right to represent oneself] ... at trial, guilty plea hearings, sentencing, and every ‘critical stage’ of a criminal proceeding ." (citation omitted)).

Pennsylvania Rule of Criminal Procedure 121 outlines...