Commonwealth v. Jamison, J-A10035-15

COMMONWEALTH OF PENNSYLVANIA Appellee v. DASHAUN LAQUINN JAMISON Appellant

J-A10035-15

No. 1262 MDA 2013

SUPERIOR COURT OF PENNSYLVANIA

MAY 5, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence March 25, 2013

In the Court of Common Pleas of Northumberland County

Criminal Division at No(s): CP-40-CR-00000068-2011

BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:

Appellant DaShaun Laquinn Jamison appeals from the judgment of sentence entered in the Northumberland County Court of Common Pleas. Appellant's counsel filed an Anders¹ brief and a motion for leave to withdraw as counsel. We conclude Appellant's claim that he was denied his right to counsel is not frivolous. We further find counsel failed to comply with the technical requirements of Anders and Santiago² as to Appellant's denial of his right to counsel claim. We, therefore, deny counsel's motion for leave to withdraw as counsel and remand for counsel to prepare anadvocate's brief as to whether Appellant was denied the right to counsel. We find the remaining issues raised in the Anders brief to be frivolous.

On November 29, 2010, a criminal complaint charged Appellant with two counts of aggravated assault, two counts of criminal attempt (aggravated assault), and two counts of simple assault.³ Police Criminal Complaint at 2-3. The complaint alleged that on November 18, 2010, Appellant, a prisoner at the State Correctional Institution at Coal Township, assaulted two correctional officers. Id. On January 4, 2011, public defender James Rosini represented Appellant at a preliminary hearing. On March 31, 2011, Mr. Rosini filed a motion to withdraw, alleging Appellant failed to cooperate with counsel, insisted counsel file frivolous motions, and requested counsel issue subpoenas to witnesses who would not assist the defense. The motion also stated Appellant requested that Mr. Rosini withdraw. Motion to Withdraw, 3/31/2011, at ¶¶ 2-7. Although the trial court scheduled a hearing on the motion to withdraw for April 21, 2011, it granted the motion on April 15, 2011, ordered the court administrator to appoint new counsel, and cancelled the hearing. Order, 4/15/2011.⁴Following Mr. Rosini's departure, Michael Seward from the Public Defender's Office represented Appellant.

On July 7, 2011, the trial court scheduled Appellant's trial for November 7, 2011. Trial Order, 7/7/2011. The trial court ordered that pretrial motions be filed within 60 days. Id. On October 14, 2011, Appellant filed a pro se motion for appointment of new counsel. On November 4, 2011, Mr. Seward filed a motion for leave to withdraw from representation. On November 10, 2011, Mr. Seward filed an application for a trial continuance because he was awaiting additional discovery. Application for Trial Continuance, 11/10/2011. On January 10, 2012, the trial court scheduled a pretrial conference for February 3, 2012. Criminal Pretrial Order, 1/10/2011.⁵ On February 6, 2012, Appellant filed a pro se application for a continuance requesting additional time to obtain counsel. Application for Continuance, 2/6/2012. That same day, the trial court appointed John Broda, also from the Public Defender's Office, to represent Appellant.⁶

On February 10, 2012, Mr. Broda filed a motion for leave to withdraw as counsel. On March 8, 2012, the Honorable Robert B. Sacavage conducted a hearing on Mr. Broda's motion. At the hearing, the following occurred:

THE DEFENDANT: Your Honor, the rationale for Mr. Seward was that he wasn't communicating with me, he was disagreeing as far as receiving certain evidence that I think we would need for trial, he didn't want to go to trial.

THE COURT: So I granted your motion and appointed somebody else for you.

THE DEFENDANT: But I feel as though Mr. Broda - he's from the same office - and as soon as I talked to Mr. Broda, he said him and Mr. Seward had already talked about it. I said I felt as though it's a conflict that he's from the same office. I challenged Mr. Seward on his - his competence and I just feel that it's a conflict of interest.

. . .

MR. BRODA: I don't believe it's the nature of that. Again, I believe it's a personal conflict with Mr. - as [Mr.] Seward's - I don't mean to put words in Mr. Jamison's mouth, but I believe he wasn't happy with Mr. Seward's representation in the way he was handling his case.

THE DEFENDANT: That's correct.

MR. BRODA: So that's -

THE COURT: Why do you think Mr. Broda can't help you?

THE DEFENDANT: Because the conflicts office, I just don't think that they're correctly representing me. And like I said, I feel as though Mr. Seward felt some type of way as far as how I challenged his - you know, his competence. And like I said, as soon as I talked to Mr. Broda, it seemed like they already had discussion about my case already [sic].

THE COURT: Well, I would expect that they would have to, whoever the prior counsel was. In fact -

THE DEFENDANT: No, I mean -

THE COURT: -- the rules of ethics require[] that a lawyer who is assuming the case -

THE DEFENDANT: I don't mean it - I mean, as far as not wanting to take this case to trial, that's the first thing, it don't seem like he had any confidence in it. Like Mr. Seward has already said like this is a loss or its not triable, I should take a plea. They want me to take an open plea. I feel as though it's a conflict in that aspect, that's just how I feel.

. . .

MR. BRODA: I did advise him of my opinion of his defense.

THE DEFENSE: His opinion was the same as Mr. Seward. That's why I feel as though they already talked and Mr. Seward's already, you know, put in his mind that I need to take a plea. His opinion was the same thing, if not exactly what Mr. Seward was saying. That's just how I feel.

THE COURT: Okay.

THE DEFENDANT: I know I can't pick what attorney I have, I understand that, I just want an attorney that's going to represent me. I'm ready for trial. That's the first thing I say, I'm trying to go to trial. I'm not trying to take no plea. So for someone to keep trying to convince me to take a plea — I'm not guilty, why should I plead guilty to something I didn't do.

I also got a problem, Mr. Broda said he's been to trial like fifteen times and only won two. Well, I need a lawyer that's going to represent me and willing — that has experience in trial, that's going to fight for me.

THE COURT: Well, the Court will — and this is your last opportunity to reconsider your decision because I am not inclined to just keep removing lawyers and appointing somebody that you're going to wait us out until you are happy with [sic]. There are two individuals — three individuals, the first one left the case through other employment; the second one, you disagreed with their performance; now, what I'm hearing here is anotherperformance-related argument. So you either have Mr. Broda, or if you don't want him around, I will allow him to withdraw and appoint him as standby counsel and you can represent yourself.

THE DEFENDANT: That's my only choice?

THE COURT: Well, you can take Mr. Broda. I'm not going to appoint another person. But I will assign — if you're going to be representing yourself, I will require him to be in the courtroom, anytime you can reconsider bringing him back and he will be readily available for you. So, do you want him to withdraw?

THE DEFENDANT: I don't want to represent myself, I don't know the law, I guess I'm forced to stay with Mr. Broda.

THE COURT: Mr. Broda, you will continue to - Mr. Broda, I will deny your motion to withdraw.

N.T., 3/8/2012, at 3-8.

On March 23, 2012, the trial court scheduled a pretrial conference for May 4, 2012, jury selection for May 7, 2012, and trial for May 18, 2012. Criminal Pretrial Order, 3/23/2012. On May 7, 2012, the Honorable Charles H. Saylor conducted jury selection for Appellant's trial. At the jury selection, Mr. Broda requested a sidebar conference, which Appellant attended. The following exchange occurred:

MR. BRODA: Yes, Your Honor. Mr. Jamison told me in his letter before and he's telling me again to make a statement to the judge. I mentioned that - he's saying he's not ready to proceed to trial. I mean, judge made a pretrial determination -

. . .

MR. BRODA: Okay. Your Honor, the judge made a determination that the case is ready to go to trial. Mr. Jamison is saying he's not ready to proceed.

THE COURT: And the - well, what's the basis.

MR. BRODA: Well, he's wanting - asking me to file motions and saying he has inmates from other institutions he wants to have subpoenaed and that hasn't been completed for this case to go to trial.

THE COURT: When is the trial scheduled for?

MR. BRODA: May 18th.

THE COURT: So that's 11 days off so we will pick the jury today and whatever motions you - you want to file between now and then, you can do so but we will - I think perhaps many of them can be between now and the 18th, but we'll proceed today.

N.T., 5/7/2012, at 3-4. The jury selection briefly resumed before the following exchange occurred at sidebar:

THE DEFENDANT: I don't understand why it wasn't brought up at the pretrial. If it was brought up at pretrial then this all would have been addressed. I would like all this to be on record because of dealing with Mr. Broda.

I requested Mr. Broda to file a habeas corpus on the grounds that the Commonwealth didn't present enough evidence on the charges held for trial. He failed to do that. I requested Mr. Broda to file an omnibus pretrial motion[] requesting an appointment of an investigator for this case. He failed to do that. Dismiss all the charges and information. He failed to do that. Sequester enough evidence. He failed to do that.

Continuously prepare for trial, he's failed to do that. I requested Mr. Broda to file a subpoena for [personnel] files of all officers and CO's that would testify in this case to prepare for my defense.

THE COURT: Let me - you're reading from something, right?

THE DEFENDANT: Yes, sir.

THE COURT: How about if you just submit that?

THE DEFENDANT: What?

...