Com. v. Illarionov, V., Com. v. Illarionov v. No. 1838 EDA 2016

Vadim Illarionov was charged with one count of DUI after a February 28, 2015 arrest and tried in a waiver (pro se) bench trial on December 15, 2015; the court found him guilty.
The certified record is incomplete: defense continuance motions and clear time-stamps/docketing for counsel’s withdrawal are missing; Attorney Evan Kelly’s withdrawal motion was not filed.
A written waiver of counsel in the record was defective (blank execution line and no time-stamp); an oral colloquy occurred at trial in which the court asked a few questions and Illarionov said he wished to proceed.
During the colloquy Illarionov expressed uncertainty and financial/familial concerns, and the court suggested he could check with the Public Defender’s Office but then accepted his decision to proceed.
Post-conviction, appointed appellate counsel filed an Anders brief and petition to withdraw; the Superior Court found counsel complied with Anders/Santiago procedural requirements.
The Superior Court independently reviewed the record and vacated the judgment of sentence, holding the trial court’s waiver colloquy was constitutionally inadequate and Illarionov’s waiver was equivocal; case remanded for a new trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the waiver-of-counsel colloquy constitutionally adequate?	Commonwealth: The record contains a written waiver and an on-the-record colloquy indicating Illarionov knowingly proceeded pro se.	Illarionov: Waiver was defective/equivocal due to incomplete written form, missing counsel-withdrawal paperwork, and insufficient oral inquiry.	The court held the colloquy was constitutionally inadequate because the trial court failed to cover required topics (nature of charges, sentencing exposure, procedural rules, defenses, and potential loss of rights).
Was Illarionov’s invocation of the right to self-representation clear and unequivocal?	Commonwealth: Illarionov affirmatively stated he wished to proceed without counsel.	Illarionov: His statements showed equivocation — he expressed concerns and asked to consult the Public Defender’s Office; his choice was made after the court limited further inquiry.	The court held the waiver was equivocal; given the deficient colloquy and equivocation, the waiver was invalid and reversal was required.

Anders v. California, 386 U.S. 738 (U.S. 1967) (procedural protections when appointed counsel seeks to withdraw)
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (Anders brief content and appellate obligations)
Commonwealth v. Payson, 723 A.2d 695 (Pa. Super. 1999) (waiver of counsel must be knowing and intelligent)
Commonwealth v. Lasko, 14 A.3d 168 (Pa. Super. 2011) (trial court must conduct probing, comprehensive on-the-record colloquy)
Faretta v. California, 422 U.S. 806 (U.S. 1975) (constitutional right to self-representation)
Birchfield v. North Dakota, 136 S. Ct. 2160 (U.S. 2016) (noted by the court as a related concern)
Commonwealth v. Hankerson, 118 A.3d 415 (Pa. Super. 2015) (appellate review duties when counsel seeks to withdraw)
Commonwealth v. Woods, 939 A.2d 896 (Pa. Super. 2007) (right to direct appeal and counsel on appeal)
Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005) (notice requirements when counsel files Anders petition)
Commonwealth v. Davido, 868 A.2d 431 (Pa. 2005) (request to proceed pro se must be timely and unequivocal)
Commonwealth v. Szuchon, 484 A.2d 1365 (Pa. 1984) (recognizing self-representation under state constitution)