COMMONWEALTH OF PENNSYLVANIA v. COREY LEE MCLENDON
No. 298 WDA 2022
IN THE SUPERIOR COURT OF PENNSYLVANIA
MARCH 27, 2023
2023 PA SUPER 50
J-S36006-22
BEFORE: STABILE, J., KING, J., and COLINS, J.*
OPINION BY STABILE, J.:
Appellant, Corey Lee McLendon, appeals from the November 24, 2021 judgment of sentence imposing 75 to 150 months of incarceration for aggravated assault.1 We affirm.
The trial court recited the pertinent facts and procedural history in its
[Appellant] was originally charged with one count each of: strangulation, aggravated assault, simple assault, false imprisonment, harassment, terroristic threats (F3), and unlawful restraint; three counts of terroristic threats (M1); and two counts of possessing instruments of crime. The charges arose out of an incident wherein [Appellant] assaulted and terrorized his then-girlfriend over the course of two days by striking her in the face and body with his fist, throwing items at her with such force that
they broke upon hitting her, strangling her, holding a pair of scissors to her neck and slicing it superficially while threatening to kill her, beating her in the skull with a broomstick handle, and threatening to shoot up her father‘s residence where her two minor children lived.
Trial Court Opinion, 4/19/22, at 1.
The record reveals a contentious relationship between Appellant and his appointed counsel throughout this case. That relationship pervades the issues on appeal. At the originally scheduled preliminary hearing on September 17, 2020, Appellant refused to proceed because he did not wish to be represented by a public defender. The trial court continued the preliminary hearing for two months to give Appellant time to retain private counsel. As of the November 20, 2020 rescheduled preliminary hearing, Appellant had yet to retain private counsel. Instead, he objected to the rescheduled hearing because he had yet to sign a contract with his public defender, Michael A. DeJohn. N.T. Preliminary Hearing, 11/20/20, at 5-6. Appellant also claimed he had inadequate time to explain his defense to DeJohn. Id. DeJohn stated that his investigator talked to Appellant and asked him to sign an application to be represented by the public defender‘s office, but Appellant refused to sign it. Id. at 8. The trial court read a printed waiver of counsel form into the record, but Appellant refused to sign it, saying it was against his constitutional right. Id. at 10. The trial court declined to delay the preliminary hearing any further, and directed that Appellant proceed pro se at the preliminary hearing. Id. at 6, 8-10.
At an October 26, 2021 hearing, the trial court permitted counsel to withdraw and permitted Appellant to argue his plea withdrawal petition pro se. The trial court did not conduct a waiver of counsel colloquy pursuant to
Appellant presents three questions:
- Whether the trial court erred in denying Appellant‘s pre-sentence motion to withdraw his guilty plea where the record establishes that the plea was never voluntary and there would have been no prejudice to the Commonwealth had the court granted the motion?
- Whether the trial court erred in finding either forfeiture or waiver of the right to counsel and requiring Appellant to proceed pro se where Appellant showed that he and his court-appointed attorney suffered from irreconcilable differences, Appellant could not afford private counsel, Appellant did nothing to significantly delay the proceedings, and the trial court failed to conduct the required colloquy before requiring Appellant to proceed pro se?
- Whether the trial court abused its discretion and erred in considering improper factors and sentencing Appellant to an excessive, unreasonable sentence?
Appellant‘s Brief at 8.3 We consider these issues in turn.
The law governing pre-sentence plea withdrawals is well-settled.
(1) there is no absolute right to withdraw a guilty plea; (2) trial courts have discretion in determining whether a withdrawal request will be granted; (3) such discretion is to be administered liberally in favor of the accused; and (4) any demonstration by a defendant of a fair-and-just reason will suffice to support a grant, unless withdrawal would work substantial prejudice to the Commonwealth.
Commonwealth v. Garcia, 280 A.3d 1019, 1023 (Pa. Super. 2022). “The trial courts in exercising their discretion must recognize that before judgment, the courts should show solicitude for a defendant who wishes to undo a waiver of all constitutional rights that surround the right to trial—perhaps the most devastating waiver possible under our constitution.” Commonwealth v. Elia, 83 A.3d 254, 262 (Pa. Super. 2013) (internal quotation marks omitted), appeal denied, 94 A.3d 1007 (Pa. 2014). We will not reverse a trial court‘s decision absent abuse of discretion. Id. at 261.
Appellant relies on Elia, wherein the defendant attempted to withdraw his plea of guilty to involuntary deviate sexual intercourse and statutory sexual assault. As in the instant case, the defendant‘s withdrawal motion was pro se. Id. at 258. He also alleged ineffective assistance of counsel and requested
Here, Appellant claims he should have been permitted to withdraw his plea because he had a poor relationship with counsel and entered the plea under duress. Given these apparent similarities between this case and Elia, Appellant argues the trial court abused its discretion in denying his petition to withdraw his plea. We disagree.
While the instant record reflects a strained relationship between Appellant and his counsel, there is no indication in the record that Appellant believed the Commonwealth‘s evidence was insufficient or that he wished to test the Commonwealth‘s evidence. The record establishes the contrary.
At the outset of the plea hearing, Appellant agreed that he was pleading guilty to aggravated assault in exchange for the Commonwealth‘s agreement
At that point, the following exchange occurred:
THE COURT: Anyone forcing you to do this or promise you anything or threaten you anything [sic]?
THE DEFENDANT: No, but I am signing under duress. First I have to – that I have reasons of my own the reason I want to speak on the record today.
THE COURT: Okay, well, this is a plea, I mean I don‘t know if you – you have to admit one way or the other whether you‘re guilty or not.
THE DEFENDANT: I mean I – well, yea, I‘m admitting, I‘m admitting guilt.
THE COURT: All right.
THE DEFENDANT: I am saying that I am guilty. But as you can see the documents, I have signed it under duress. There‘s discrepancies in this case that have not been followed and there‘s been protocol that the DA‘s office, as well as Mr. DeJohn [defense counsel], has totally missed.
[...]
THE COURT: I just want to make sure you‘re –
THE DEFENDANT: I‘m fully aware.
THE COURT: Is it still your intention to –
THE DEFENDANT: Yes.
THE COURT: -- plead guilty?
THE DEFENDANT: Yes. My only intentions [sic] was to get a plea deal period. It‘s just the process that the DA‘s office and Mr. DeJohn has going that – again, this is the reason why I want to speak on open record. So it is on also [sic] record because nobody seems to want to get back to me on the things that have gone on in this case or hear the things that I have to say, so this is my time to speak on the record so I can get those things out there.
THE COURT: All right, now, what‘s going to happen is there‘s going to be a sentencing on October 11th at 9:00 a.m. I‘m not going to sentence you today.
THE DEFENDANT: Okay.
THE COURT: That will be in front of Judge Ridge and you can say anything you need to on your own behalf –
THE DEFENDANT: Okay.
THE COURT: -- at that time.
THE DEFENDANT: Cool.
Id. at 10-12.
Thus, Appellant was consistently clear about his guilt and his wish to plead guilty. He nonetheless wished to go on the record venting his frustration with defense counsel and the prosecutor. The trial court concluded by informing Appellant that he would have an opportunity to speak on his own behalf at sentencing, and Appellant indicated his satisfaction with that arrangement. There is no indication that Appellant‘s apparent dissatisfaction at the communication between himself and defense counsel affected Appellant‘s decision to enter a guilty plea. Furthermore, as we will discuss regarding Appellant‘s second assertion of error, Appellant‘s disagreements with counsel and dilatory behavior persisted throughout the trial court
In his second assertion of error, Appellant claims the trial court erred in permitting him to proceed pro se after the withdrawal of counsel because the trial court failed to conduct a waiver of counsel colloquy. In the alternative, Appellant argues the trial court erred in determining that Appellant‘s obstructive and dilatory conduct resulted in the forfeiture of his right to counsel. Because the trial court never conducted a waiver-of-counsel colloquy in this case, and because the trial court found instead that Appellant forfeited his right to counsel (Trial Court Opinion, 4/19/22, at 6), we confine our analysis to forfeiture.
The Sixth Amendment to the United States Constitution and Article I, § 9 of the Pennsylvania Constitution guarantees a criminal defendant the right to assistance of counsel. “However, the constitutional right to counsel of one‘s own choice is not absolute.” Commonwealth v. Lucarelli, 971 A.2d 1173, 1178 (Pa. 2009). “Rather, the right of an accused individual to choose his or her own counsel, as well as a lawyer‘s right to choose his or her clients, must be weighed against and may be reasonably restricted by the state‘s interest in the swift and efficient administration of criminal justice. Id. “Thus, while defendants are entitled to choose their own counsel, they should not be
Our Supreme Court addressed forfeiture of counsel in Lucarelli. There, after the hiring and withdrawal of two attorneys, the trial court provided the defendant with an application for a public defender. Lucarelli, 971 A.2d at 1176. The defendant did not file the application and then failed to appear for jury selection. Id. at 1177. The trial court rescinded its bench warrant after the defendant appeared and filed a pro se motion for the appointment of counsel. Id. The trial court did not appoint counsel, instead reducing the defendant‘s bail by $20,000 and directing him to use that money to hire counsel. Id. Appellant subsequently appeared for trial without an attorney and proceeded pro se with assistance of stand by counsel.
The Lucarelli Court concluded that the defendant forfeited his right to counsel. “[W]here a defendant‘s course of conduct demonstrates his or her
This Court in Commonwealth v. Kelly, 5 A.3d 370 (Pa. Super. 2010), appeal denied, 32 A.3d 1276 (Pa. 2011), considered forfeiture of counsel in the case of an indigent defendant. After pleading guilty, the defendant filed a pro se seeking withdrawal of his plea and challenging plea counsel‘s effectiveness. Id. at 372. The trial court granted the plea withdrawal motion and ordered appointed counsel to serve as standby counsel. Id. at 373. On the day of trial, the defendant alleged an irreconcilable breakdown between himself and standby counsel. He requested appointment of another attorney to represent him at trial. Id. at 373-74. The trial court continued the trial and appointed another attorney. Id. at 374. One month later, the newly appointed attorney filed a petition to withdraw, alleging that the defendant was uncooperative and had accused counsel of working for the Commonwealth and repeatedly lying to the defendant. Id. After a hearing, the trial court
On appeal, the defendant argued, among other things, that he did not waive or forfeit his right to counsel. The Kelly Court disagreed, noting that the defendant failed to cooperate with all three lawyers assigned to him and repeatedly accused them of ineffective assistance. Id. at 381. The defendant “wanted a counsel, but only one who would please him“[.]: Id. The Kelly Court quoted the following with approval:
We have recognized a right of a defendant to proceed without counsel and to refuse the representation of assigned counsel.... He may not use this right to play a ‘cat and mouse’ game with the court or by ruse or stratagem fraudulently seek to have the trial judge placed in a position where, in moving along the business of the court, the judge appears to be arbitrarily depriving the defendant of counsel.
Id. (quoting United States ex rel. Davis v. McCann, 386 F.2d 611, 618-19 (2d Cir. 1967), cert. denied, 390 U.S. 958 (1968)). See also, Commonwealth v. Coleman, 905 A.2d 1003 (Pa. Super. 2006) (holding that that the defendant forfeited her counsel after hiring and dismissing several attorneys and refusing to hire another), appeal denied, 923 A.2d 409 (Pa. 2007); but see Commonwealth v. Fill, 202 A.3d 133 (Pa. Super. 2019) (holding that the defendant did not forfeit his right to counsel where, after an initial disagreement with the public defender, the defendant maintained the same court-appointed counsel throughout the remainder of the case).
After his August 6, 2021 counseled guilty plea, Appellant, on October 11, 2021—on the morning of his scheduled sentencing—filed a pro se motion to withdraw his guilty plea, claiming, among other things, that DeJohn “ushered” him into a guilty plea without sufficient investigation of the case. Shortly thereafter, on October 13, 2021, DeJohn filed a petition to withdraw as counsel, citing the deterioration of his relationship with Appellant and Appellant‘s repeated attempts to undermine the judicial process.
The trial court conducted a hearing on these matters at the beginning of the previously scheduled October 11, 2021 sentencing hearing. The trial court first explained to Appellant that he had not read Appellant‘s pro se plea withdrawal request because Appellant was still represented by counsel. N.T. Hearing, 10/11/21, at 4. DeJohn stated that he did not believe withdrawal of
On October 26, 2021, more than two weeks after the originally scheduled sentencing hearing, the parties proceeded to a hearing on Appellant‘s petition to withdraw his guilty plea and DeJohn‘s motion to withdraw as counsel. Appellant claimed, alternatively, that DeJohn was never his counsel, that DeJohn was ineffective, and that his pro se filings were necessary because DeJohn failed to respond to Appellant‘s calls to the public defender‘s office. N.T. Hearing, 10/26/21, at 2, 4-6, 12. He also accused
The next proceeding was a pre-sentence telephone hearing regarding Appellant‘s medical condition. Appellant claimed he was exposed to Covid and that two of his three rapid tests came back positive. N.T. Hearing, 11/23/21, at 2-3. Appellant claimed he had documentation from an urgent care documenting his positive results. Id. at 4. The court offered several means by which Appellant could document his illness for the court, but Appellant failed to do so. Id. at 12, 16-18.
At the sentencing hearing the following day, Appellant admitted he never tested positive for Covid. N.T., 11/24/21, at 10. Appellant claimed he did not understand how he was pro se, and the trial court reminded him of his counsel‘s withdrawal. Id. at 5. In his statement to the court, Appellant claimed he did not understand why he was there and challenged the court‘s jurisdiction on grounds that there was never an arrest warrant. Id. at 14. Nonetheless, Appellant maintained that he wanted to take accountability for his actions, but also claimed that the victim was at least partially at fault (“I know what I‘ve done wrong, just like the victim knows what she‘s done wrong.“). Id. at 15.
Here, as in Lucarelli, Appellant‘s refusal to cooperate with counsel and the trial court persisted throughout the trial court proceeding. And while Appellant had only one lawyer in this case, whereas the defendants in Lucarelli and Kelly had several, the end result was the same—unnecessarily drawn out proceedings brought about by a defendant‘s refusal to cooperate with counsel. Appellant‘s dilatory conduct spanned eleven months in this case, whereas the Lucarelli Court found forfeiture based on the defendant‘s 8 1/2
In addition, we are mindful of the Commonwealth‘s assertion that Appellant was playing games not only with the trial court, but with the victim. At the November 23, 2021 telephone hearing, at which Appellant was attempting to prolong his sentencing hearing with his false claim of a positive Covid test, the prosecutor explained that the case had become “borderline unbearable for the victim[,]” who was prepared to appear at sentencing the
In support his argument that he did not forfeit his right to counsel, Appellant relies on Commonwealth v. Neal, 563 A.2d 1236 (Pa. Super. 1989), appeal denied, 575 A.2d 564 (Pa. 1990), in which the defendant asked for dismissal of counsel and appointment of new counsel after jury selection. Id. at 1239. The defendant claimed he lacked confidence in his first appointed attorney to represent his best interests. Id. The trial court noted that the defendant‘s allegations indicated a long-standing problem, yet the defendant did not raise them until the commencement of trial. Id. The trial court dismissed the defendant‘s counsel but refused the defendant‘s request to appoint another attorney, which would have delayed the trial. Id. Instead, the defendant was forced to proceed pro se with the assistance of appointed standby counsel to answer the defendant‘s procedural questions. Id. at 1240-41. The Neal Court opined that the trial court would not have abused its discretion in refusing the defendant‘s request to dismiss the public defender. Id. at 1242. But forcing the defendant to proceed pro se without a proper waiver of counsel colloquy was error, as the defendant clearly stated he did not wish to proceed pro se. Id. at 1243.
Appellant may not frustrate or obstruct the orderly procedure of the court and the administration of justice by
continual insistence o[n] representation by private counsel, even though unable to afford such representation, or the continual refusal of the services of the public defender. However, as in the instant case, the intransigent behavior by the appellant does not negate the requirement for a full and complete colloquy in order that appellant may make a competent and intelligent waiver of his right to counsel.
Id. (quoting Commonwealth v. Grant, 323 A.2d 354, 358-59 (Pa. Super. 1974)) (citations omitted).
Appellant claims Neal is directly on point because, regardless of his intransigent behavior in this case, the trial court failed to conduct a proper waiver colloquy. Appellant‘s reliance on Neal is misplaced, in our view, however, because it is a waiver of counsel rather than a forfeiture case. Furthermore, the facts of Neal are distinct, as there is no indication in the Neal opinion that the defendant‘s repeated lack of cooperation with counsel resulted in repeated delays throughout an unnecessarily prolonged proceeding. Rather, the defendant in Neal decided on the eve of trial that he lack confidence in his attorney.
Based on all the foregoing, we discern no error in the trial court‘s finding that Appellant forfeited his right to counsel.
In his final argument, Appellant challenges the trial court‘s sentencing discretion. He argues the trial court relied on improper factors in imposing an excessive sentence. We disagree.
In order to preserve a challenge to the trial court‘s sentencing discretion, an appellant must raise it in a post-sentence motion or during the sentencing
Turning to the merits, we review for abuse of discretion.
An abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. In more expansive terms, our Court recently offered: An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous. The rationale behind such broad discretion and the concomitantly deferential standard of appellate review is that the sentencing court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it.
Moury, 992 A.2d at 169-70 (quoting Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007)).
The trial court explained its sentence as follows:
A review of the sentencing proceeding indicates that this court took all appropriate factors into consideration prior to determining and pronouncing sentence. The defendant‘s background and rehabilitative potential were reviewed as was the impact of the crime upon the victim, as well as the protection of the community. With a prior record score of “1” and an offense gravity score of “11“, the standard range minimum periods of incarceration were 51 months in the lower end, and 69 months in the upper end of the standard range. An aggravated range sentence had a minimum period of 81 months of incarceration. Deadly Weapon Enhancement was applied and a written notice of DWE was provided in the defendant‘s statement of understanding of rights, which was executed by the parties on August 16, 2021, before Judge Mead.
Therefore, the sentence of 75 months to 150 months was neither excessive nor unreasonable. This was a very serious, violent crime and the specific sentence was appropriate and took all factors into consideration.
Trial Court Opinion, 2/23/22, at 2.
Appellant argues that, in relying on Appellant‘s lack of remorse, the trial court effectively used Appellant‘s silence against him. He cites Bowen for the proposition that the sentencing court may consider lack of remorse but may not hold the defendant‘s silence against him. Bowen, 975 A.2d at 1122.
Next, Appellant relies on Commonwealth v. Rhodes, 990 A.2d 732 (Pa. Super. 2009), appeal denied, 14 A.3d 827 (Pa. 2010), wherein this Court vacated the judgment of sentence because the trial court obtained police reports never admitted into evidence and relied on their contents in fashioning a sentence. Instantly, Appellant complains that the sentencing court received a previously undisclosed letter from the victim‘s friend. Appellant‘s Brief at 41. Appellant does not note whether he objected to the letter at sentencing, nor does he discuss the substance of the letter, or any evidence that the letter influenced the sentence imposed. Appellant has failed to articulate any basis on which he is entitled to relief on this basis.
For the foregoing reasons, Appellant‘s challenge to the trial court‘s exercise of sentencing discretion fails.
Judgment of sentence affirmed.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2023