Case Information
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF : PENNSYLVANIA
v. VADIM ILLARIONOV, No. 1838 EDA 2016
Appellant Appeal from the Judgment of Sentence, April 7, 2016,
in the Court of Common Pleas of Chester County Criminal Division at No. CP-15-CR-0001209-2015 BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ. FILED APRIL 04, 2017
MEMORANDUM BY FORD ELLIOTT, P.J.E.: Vadim Illarionov appeals from judgment of sentence entered on April the Court of Common Pleas of Chester County following his conviction waiver trial one count driving under the influence of alcohol ("DUI").1 Assistant Chester County Public Defender Stephen F. Delano filed petition withdraw, alleging appeal frivolous, accompanied Anders brief.2 After careful review, deny counsel's withdrawal petition, vacate appellant's judgment of sentence, remand new trial. [1] 75 Pa.C.S.A. § 3802(a)(1). See Anders California, U.S. 738 (1967), v.
Santiago, 978 A.2d 349 (Pa. 2009).
On February 28, 2015, appellant was arrested charged DUI. The record reflects that Attorney Evan Kelly entered his appearance on appellant's behalf praecipe docketed on April 14, 2015. On July 2, 2015, again on August 14, 2015, the trial court continued appellant's trial upon motion of defense counsel. The certified record before us scant, and it fails to contain defense counsel's motions for continuance.
Additionally, the docket sheet entries indicate that appellant completed a waiver counsel colloquy September 28, 2015. Although the record contains written waiver colloquy appears to executed by dated September 2015, this written colloquy bears no time -stamp. Additionally, the execution line provided trial court appellant knowingly, intelligently, and acknowledge finding its voluntarily waived to remains blank. Curiously, the certified contains court order dated September 2015, which was days prior appellant's alleged written waiver of counsel, which the trial court permitted Attorney Kelly withdraw. The docket sheet entries, however, fail reflect this order was docketed, order also bears no time -stamp. The record further demonstrates that Attorney Kelly never filed motion withdraw. We are, therefore, unable determine why court permitted Attorney Kelly to withdraw.
The record further reflects on December appellant appeared for trial without representation, the following colloquy took place:
THE COURT: All right. And Mr. Illarionov, you could come up the podium, please. And would you state your name.
[APPELLANT]: Vadim Illarionov.
THE COURT: And sir, do you have an attorney?
[APPELLANT]: I do not. THE COURT: And do you wish to proceed without an attorney today?
[APPELLANT]: I do. THE COURT: And do you understand you have be represented attorney if you can't afford one, one would be assigned represent you free of charge? Do you understand that? I do. I tried get public attorney,
[APPELLANT]: but based on my wife's income from last year, we were above poverty level.
THE COURT: So then you do not qualify for free attorney. All right. And I did have you read and fill out this waiver colloquy. Do you remember doing that?
[APPELLANT]: Yes, I do. THE COURT: All right. And I note that, you had requested stand-by counsel to appointed. Unfortunately, since you do not qualify for free attorney based on your income, I'm going to be appointing stand-by counsel. All right. Do you have any questions or concerns about that?
[APPELLANT]: Well, actually, I do. My wife and I are going through divorce. So I'm not sure if I should proceed today because she not supporting I'm living at friend's house in me anymore. Thorndale, the Coatsville area, since yesterday.
THE COURT: When did you separate?
[APPELLANT]: Well, it would have been -- it's been a rough ride with separation. We have separated five times last seven years.
THE COURT: Have things changed since you filled this out back on September 28th, 2015?
[APPELLANT]: Nothing been filed yet. THE COURT: All right. What I can do have you go up Public Defender's Office, explain of them, see makes any difference. But if it does not, I'm going to postpone the case. So would you like to take the time do that?
[APPELLANT]: No. Actually, I would like to proceed. THE COURT: Okay. Very good. You can have a seat there.
verdict was against the weight of the evidence. The trial court denied motion by order dated May 13, 2016.
On June 13, 2016, appellant then filed a timely notice of appeal to this court. On June 16, 2016, the trial court directed to file a concise statement of errors complained of on appeal within days. On July 6, 2016, Public Defender Delano filed a statement of intent to file an Anders brief in lieu of a statement of matters complained of on appeal. Although trial court filed a "brief opinion regarding reasons for [its] rulings," it erroneously determined "[d]ue [appellant's] failure to file serve upon this Court a concise statement of matters complained of on appeal as directed by our Order of June 16, 2016, allegations error are deemed [pursuant to] Pa.R.A.P. 1925(b)(4)(vii)." waived (Trial court opinion, 8/10/16 at 2.) This determination was in error because Rule 1925(c)(4) permits counsel in criminal case serve on judge a statement of intent file an Anders brief lieu of filing Pa.R.A.P. 1925(b) concise statement errors complained of appeal. See Pa.R.A.P. 1925(c)(4).
On October Public Defender Delano filed this court petition withdraw as an Anders brief, wherein Public Defender Delano states that, after conscientious review of the record, he determined appeal wholly frivolous.
A request appointed counsel to withdraw pursuant Anders Santiago gives rise to certain requirements obligations, both appointed this Court. v. and Flowers, A.3d 1247-1248 (Pa.Super.
2015)
These requirements significant protection they provide an Anders arise because a criminal defendant has a constitutional right direct appeal to counsel appeal. Woods, 939 A.2d 898 (Pa.Super. 2007). This Court summarized these requirements as follows: Direct appeal counsel seeking withdraw under Anders must file petition averring that, after conscientious examination of the record, finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues might arguably support the appeal along any other issues necessary effective appellate presentation thereof.
Anders must also provide copy of the Anders petition brief the appellant, advising the appellant of retain new counsel, proceed pro se raise additional points or worthy of the Court's attention.
Woods, 939 A.2d at 898 (citations omitted).
There are also requirements as precise content Anders brief: The Anders brief that accompanies court -appointed counsel's petition withdraw . must: (1) provide . . summary of the procedural history facts, with and citations to the record; (2) refer anything in that counsel believes arguably supports the appeal; (3) set forth counsel's conclusion that the appeal is frivolous; (4) state and for counsel's reasons concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes point the conclusion have to led that appeal is frivolous. Santiago, 978 A.2d at 361. Id. at 1248. If this Court determines that appointed counsel has met these obligations, it then our responsibility "to make full examination of the proceedings make independent judgment decide whether appeal fact wholly frivolous." Id. at 1248. In so doing, review not only the issues identified appointed counsel Anders brief, but examine all of the proceedings "make certain appointed has not overlooked the existence of potentially non -frivolous issues." Id. Hankerson, 118 A.3d 419-420 (Pa.Super. 2015).
Our review of Public Defender Delano's application withdraw, supporting documentation, Anders brief reveals complied of the foregoing requirements. We note also furnished copy of the brief to appellant, advised him of his right to retain new counsel, proceed pro se, and/or raise any additional issues deems worthy of this court's attention, attached to the Anders petition copy the letter sent as required under Commonwealth v. Millisock, 873 A.2d (Pa.Super. 2005). See v. Daniels, 999 A.2d 590, (Pa.Super. 2010) ("While the Supreme Court in Santiago set forth the new requirements for an Anders brief, which are quoted above, the holding did not abrogate the notice requirements set forth Millisock remain binding legal precedent.").
As Public Defender Delano has complied of the requirements set forth above, conclude counsel has satisfied the procedural requirements of Anders. Once met obligations, however, "it then becomes the responsibility the reviewing court make full examination of the proceedings make independent judgment to decide whether the appeal fact wholly frivolous." Santiago, 978 A.2d at 355 n.5.
In this case, we need turn merits of the issues appellant wishes to raise because our independent review of the reveals court violated appellant's as provided the Sixth Amendment United States Constitution and by Article I, Section Nine of the Pennsylvania Constitution when it tried him pro se after failing
_8 conduct an adequate waiver of colloquy and when appellant's waiver of counsel was equivocal.
"Both the right to counsel and the right self -representation are guaranteed by the Sixth Amendment United States Constitution and Article I, Section Nine of the Pennsylvania Constitution." Payson, 723 A.2d 699 (Pa.Super. 1999). "Deprivation of these rights can never be harmless." Id. In Payson, this court instructed that:
An individual may certainly waive a constitutional right. However, a waiver is only valid made with knowledge and intelligence. If are to uphold such a waiver, the record must clearly demonstrate an informed relinquishment a known right. In order make a knowing and intelligent waiver, the individual must be aware of both the nature of the risks consequences of forfeiting it. Id. at 700 (internal citations omitted).
Moreover, presumption must always be against the waiver Nor can waiver be a constitutional right.
presumed where the silent. The record must show, or there must an allegation and evidence which shows, accused was offered but intelligently understandingly rejected the offer. Anything less not waiver.
Id. (citation omitted).
Our supreme court has held trial court must conduct "probing . making searching formal inquiry" into the following colloquy . . questions:
(1) whether the defendant is aware of his right to counsel or not and (2) whether the defendant is aware of the consequences of waiving that right or not. Specifically, the court must inquire whether or not: (1) the defendant understands he has the right be represented counsel, and the right to have free appointed if he is indigent; (2) the defendant understands the nature of the charges against him and the elements each of those charges; (3) the defendant aware of the permissible range of sentences and/or fines the offenses charged; (4) the defendant understands if waives the right to counsel he will still be bound by the normal rules of procedure and that counsel would be familiar these rules; (5) [the] defendant understands there are possible defenses to these charges which might be aware of, and these defenses are not raised at trial, they may be lost permanently; and (6) the defendant understands that, in addition defenses, the defendant has many rights that, if not timely asserted, may be lost permanently; if errors occur are timely objected to, or otherwise timely raised by the defendant, the objection to these errors may lost permanently.
Commonwealth v. Lasko, 14 A.3d 168, 173 (Pa.Super. 2011) (citation omitted; brackets original).
Our state federal constitutions guarantee both the right to counsel right self -representation. Faretta California, 422 U.S. 806, 821 (1975) (implicit structure of the Sixth Amendment right of criminally accused to conduct his own defense); v. Szuchon, 484 A.2d 1365, 1376-1377 (Pa. 1984) (an accused right conduct own defense pursuant Article Section of the Pennsylvania Constitution). "[I]n order invoke the of self[ -]representation,
- - request to proceed pro se must be made timely and not for purposes of delay must be clear and unequivocal." Davido, In considering whether such a request is 868 A.2d 438 (Pa. 2005). unequivocal, we consider "a myriad of factors[,]" including, but not limited to, whether the request was hybrid representation or merely for the appointment of standby or advisory counsel; the court's response a request; whether a defendant consistently vacillated his request; and whether a request is the result of emotional outburst. Id. at 439. "[T]he inquiry surrounding whether a request to proceed pro se unequivocal is fact intensive should based on the totality of the circumstances surrounding the request." Id.
Here, even assuming written colloquy contained certified record before us lacked deficiencies, our supreme court has held written waiver, without more, sufficient establish knowing intelligent waiver counsel. Lasko, A.3d at (citation omitted). Additionally, this court has held trial court must conduct Id. (citation "penetrating comprehensive" colloquy on -the -record. omitted). Accordingly, examine the oral colloquy determine whether it was constitutionally sufficient. We also consider the as whole determine, based upon totality of the circumstances, whether appellant unequivocally waived to counsel.
Here, it clear that oral colloquy conducted was not adequate. The trial court failed to inquire as to: (1) whether appellant understood the nature of the charges against him and the elements of the charges; (2) whether appellant was aware of the permissible range of sentences and/or fines the offenses charged; (3) whether appellant understood he waived the to counsel, he would still be bound by normal rules of procedure and that would be familiar these rules; (4) whether appellant understood that there were possible defenses to the charges that might be aware of, and that if these defenses were not raised at trial, they may be lost permanently; (5) whether appellant understood that, addition to defenses, he had many rights that, if not timely asserted, may be permanently lost; (6) whether appellant understood if errors occurred were not timely objected to, or otherwise timely raised by appellant, these errors could permanently lost. totality of circumstances present this case
Moreover, in demonstrates appellant's waiver counsel was equivocal. In response trial court's inquiry as whether had any concerns, appellant stated, "actually, I do." (Notes of testimony, 12/15/15 at 3.) Appellant then stated was "not sure if [he] should proceed today" attempted explain his reduced income inability afford counsel (Id. at 3-4.) The court, light his separation from his wife. in however, did permit appellant explain financial situation, but,
- - rather, informed appellant that he could, at that point in the proceedings, go to the public defender's office explain, but if that did not make difference, the court would not postpone the case. (Id. at 4.) It then asked appellant he would "like take the time do that." (Id.) It was then that appellant elected to proceed pro se. (Id.) Additionally, appellant represented by assistant public defender in this appeal; albeit, is seeking withdraw.
Given these considerations, it abundantly clear that appellant's waiver counsel was equivocal waiver of counsel colloquy was fatally deficient fulfilling requirements set forth Pennsylvania In such circumstances, there are no assurances Supreme Court. appellant knowingly, voluntarily, intelligently waived counsel. Accordingly, we vacate appellant's judgment of sentence remand the case for new trial. Given our disposition this matter, need not address the claims raised our review. We do note, however, our review of the record raises concerns implicate Birchfield v. North Dakota, , 136 S.Ct. L.Ed.2d 560 (2016). U.S.
Petition withdraw denied; judgment of sentence vacated; case remanded for new trial. Jurisdiction relinquished.
- - Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 4/4/2017
- - Notes of testimony, 12/15/15 at 2-4. The court then conducted a waiver trial. At the close of evidence, the trial court found appellant guilty of DUI. The next reflects on March 14, 2016, Public Defender Delano entered appearance appellant's behalf. On April 2016, the trial court sentenced appellant days to months imprisonment, $1,000 fine plus costs, and 20 hours community service. On April 18, filed post -sentence motion which contended