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2023 PA SUPER 50
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
COREY LEE MCLENDON :
:
Appellant : No. 298 WDA 2022
Appeal from the Judgment of Sentence Entered November 24, 2021
In the Court of Common Pleas of Erie County
Criminal Division at No: CP-25-CR-0002584-2020
BEFORE: STABILE, J., KING, J., and COLINS, J.*
OPINION BY STABILE, J.: MARCH 27, 2023
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
Pa.R.A.P. 1925(a) opinion:
[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 thengirlfriend 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
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 2702.
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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.
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On August 6, 2021, Appellant pled guilty to aggravated assault in
exchange for dismissal of all other charges. On October 11, 2021—the day of
his scheduled sentencing hearing—Appellant filed a pro se motion to withdraw
his plea. Appellant was represented by DeJohn at that time and did not ask
DeJohn to file the motion on his behalf. As a result, the trial court delayed
the scheduled sentencing and scheduled a hearing to address whether
Appellant wished to withdraw and whether he wished to proceed with DeJohn.
Two days later, on October 13, 2021, DeJohn petitioned to withdraw.
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
Pa.R.Crim.P. 121.2 Sentencing was scheduled for November 24, 2021. On
November 23, 2021, the day before the scheduled sentencing, the trial court
conducted a telephone hearing on Appellant’s claim that he recently tested
positive for Covid. Appellant’s testimony about the timing and documentation
of his alleged positive rapid test (or tests) varied, and he was unable to
forward electronic verification to the court. The trial court determined the
next day’s sentencing hearing would proceed as scheduled unless Appellant
appeared with documentation of his positive Covid test. Appellant appeared
for the November 24, 2021 sentencing without any such documentation and
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2 Rule 121(A)(2) states mandatory areas of inquiry before a trial court may
permit a criminal defendant to proceed without counsel.
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admitted on the record that he had tested negative for Covid. The trial court
imposed sentence as set forth above. Appellant filed post-sentence motions
and this timely appeal with the assistance of private counsel.
Appellant presents three questions:
1. 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?
2. 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?
3. 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. Rule
591 permits withdrawal of a plea as follows: “At any time before the imposition
of sentence, the court may, in its discretion, permit, upon motion of the
defendant, […] the withdrawal of a plea of guilty […] and the substitution of a
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3 We note with extreme disapproval that the Commonwealth failed to file a
brief in this case, even after requesting and receiving an extension of time
within which to do so.
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plea of not guilty.” Pa. R. Crim. P. 591(A).4 Thus, the standard for pre-
sentence plea withdrawal is a very liberal one, governed by the following
considerations:
(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
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4 Rule 590 of the Pennsylvania Rules of Criminal Procedure governs guilty
pleas and plea agreements, and the official comment thereto lists seven
inquiries for the trial court to make at a plea colloquy. Pa.R.Crim.P. 590
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new counsel. Id. The trial court permitted the defendant to withdraw the
plea, but substitute counsel eventually sought to withdraw the withdrawal and
have the plea agreement reinstated. Id. at 261. On appeal, the defendant
claimed the trial court erred in permitting withdrawal based on an assertion
of innocence when the defendant did not actually assert his innocence. Id. at
263. This Court agreed that it was unclear that the defendant asserted his
innocence, but his assertions that counsel bullied him, and that he wanted to
test the sufficiency of the Commonwealth’s evidence, were fair and just
reasons to permit withdrawal of the plea. Thus, the Elia Court concluded that
the trial court did not abuse its discretion in permitting plea withdrawal or in
denying substitute counsel’s request to reinstate the original plea agreement.
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
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to nolle pros the remaining charges against him. N.T. Guilty Plea, 8/6/21, at
7. After the prosecutor recited the facts supporting the plea, Appellant signed
a document indicating his guilty plea. Id. at 8-9. Appellant indicated his
understanding of plea agreement and the elements of his offense, and he
agreed that he was guilty. Id. at 9-10.
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?
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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
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proceeding. His vague assertions of dissatisfaction with counsel at his guilty
plea colloquy, detailed above, are just one example. We discern no abuse of
discretion in the trial court’s denial of Appellant’s motion to withdraw his guilty
plea.
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
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permitted to unreasonably clog the machinery of justice or hamper and delay
the state’s efforts to effectively administer justice.” Id. at 1179. Forfeiture
of counsel does not require the intentional relinquishment of a right, as in the
case of waiver.
Id. Forfeiture is the result of a defendant’s “extremely serious
misconduct” or “extremely dilatory conduct.”
Id. (quoting United States v.
Thomas,
357 F.3d 357, 362 (3d Cir. 2004)). Where a defendant forfeits his
right to counsel, Pa.R.Crim.P. 121 and its waiver colloquy requirements do not
apply.
Id. The alleged denial of a constitutional right is a question of law for
which our standard of review is de novo and our scope of review is plenary.
Lucarelli,
971 A.2d at 1178.
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
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intention not to seek representation by private counsel, despite having the
opportunity and financial wherewithal to do so, a determination that the
defendant be required to proceed pro se is mandated because that defendant
has forfeited the right to counsel.” Id. at 1179. The Supreme Court held that
the defendant engaged in extremely dilatory conduct because he had more
than 8½ months to prepare for trial, had hired several attorneys who withdrew
their representation, and was given access to $20,000 shortly before trial with
which to obtain counsel.
Id. at 1180. The trial court therefore did not err in
forcing the defendant to proceed pro se.
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
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permitted counsel to withdraw and ordered the defendant to proceed pro se.
Id. at 376. The trial court did not conduct a waiver colloquy pursuant to Rule
121. Id. at 378. The defendant eventually pled guilty again. Id. at 376.
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).
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As explained above, the instant record reflects that the trial court
continued the preliminary hearing for two months after Appellant asked for
time to retain private counsel. In the interim, Appellant did not retain private
counsel and refused to sign an application to be represented by the public
defender’s office. At the rescheduled preliminary hearing, Appellant declined
to be represented by the public defendant and declined to sign the waiver of
counsel for the trial court read into the record. The trial court declined to
delay the preliminary hearing any further, and directed that Appellant proceed
pro se at the preliminary hearing. N.T. Preliminary Hearing, 11/20/20, at 6,
8-10.
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
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the guilty plea was warranted and noted that a waiver of counsel colloquy
would be necessary if Appellant wished to proceed without him. Id. at 5.
Appellant objected to the sentencing proceeding, claiming alternately that he
was unrepresented or that DeJohn was ineffective. Id. at 7-9, 15-17. The
prosecutor noted that she was unaware of Appellant’s pro se plea withdrawal
request until the beginning of the scheduled sentencing hearing. Id. at 6.
She also noted that the victim was present and that a delay would be a burden
to her. Id. Finally, the prosecutor noted that Appellant had used the same
tactic—demanding different counsel—to delay his preliminary hearing by two
months. Id. at 11. The trial court elected to schedule another hearing to
address Appellant’s pre-sentence motion to withdraw his plea, and to
determine whether Appellant would proceed pro se or with private counsel.
Id. at 18. Appellant was informed that if he intended to proceed with private
counsel, he would need to have private counsel present at the next hearing.
Id. at 19.
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
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DeJohn and the prosecutor of impersonating government officials. Id. at 6.
The trial court found Appellant’s arguments frivolous and permitted DeJohn to
withdraw. Id. at 7. The court then permitted Appellant to argue his motion
to withdraw his guilty plea without conducting any further colloquy. Id. at 7.
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.
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In summary, Appellant never cooperated with DeJohn from before the
preliminary hearing up through counsel’s eventual withdrawal. Appellant’s
conduct delayed the preliminary hearing by two months. Then, after his guilty
plea and on the morning of his scheduled sentencing, Appellant filed a pro se
plea withdrawal motion. That motion delayed the sentencing proceeding and
precipitated DeJohn’s petition to withdraw as counsel. Appellant expressed
his desire to retain private counsel and did not do so, despite the trial court’s
warning that it would not delay the proceedings any further if Appellant arrived
without counsel. Finally, Appellant, now acting pro se, tried to further delay
his sentencing with a false claim that he tested positive for Covid. Appellant
throughout these proceedings, commencing with his preliminary hearing and
continuing through sentencing, played his request to have counsel and then
not to have DeJohn as counsel to delay and obstruct these proceedings. Under
these circumstances, we discern no error in the trial court’s finding of
forfeiture of counsel.
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 8½
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month course of conduct. We therefore conclude that the dismissal and/or
withdrawal of multiple attorneys, while common in forfeiture of counsel cases,
is not a necessary precursor to concluding that a defendant has forfeited the
right to counsel. Our focus is upon a defendant’s conduct and not on the
number of counsel that may lead to a forfeiture decision. The duration and
persistence of the defendant’s dilatory conduct, and the delays occasioned
thereby, can lead to forfeiture of counsel even though only one attorney was
involved in the case. Here, as in Kelly, Appellant engaged in a “cat and mouse
game” throughout the trial court proceeding and now claims that the trial
court, to bring the case to a conclusion, arbitrarily deprived Appellant of the
right to counsel. Kelly, 5 A.3d at 381 (quoting McCann).5
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
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5 We are cognizant that the Lucarelli Court cabined its analysis to cases in
which the defendant had the means to procure private counsel. Kelly,
however, expanded the forfeiture of counsel analysis to include indigent
defendants. The instant record demonstrates that Appellant was eligible for
a public defender, inasmuch as the trial court appointed DeJohn to represent
him. Nonetheless, Appellant retained private counsel to file post-sentence
motions and to represent him on appeal. Appellant’s financial status is not
pertinent to our disposition of this appeal.
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following day and put the matter at an end. N.T Hearing, 11/23/21, at 11-
12. This after the victim was present for the previously scheduled sentencing
hearing which was delayed by Appellant’s plea withdrawal petition on the
morning of.
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
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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
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proceeding. The appellant must also file a timely notice of appeal and the
appellate brief must include a concise statement of the reasons relied upon
for allowance of appeal, pursuant to Pa.R.A.P. 2119(f). The Rule 2119(f)
statement must explain why the argument presents a substantial question to
the trial court’s exercise of sentencing discretion. If the appellant fails to
comply with any of the foregoing, we will not address the issue on its merits.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “A
substantial question exists only when the appellant advances a colorable
argument that the sentencing judge's actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.
Id. Here,
Appellant claims the sentence was disproportionate to his conduct and that
the trial court failed to articulate reasons to support it. Appellant’s Brief at
17-18. Appellant also argues the trial court relied on improper factors.
Appellant’s Brief at 18. These assertions raise a substantial question.
Commonwealth v. Parlante,
823 A.2d 927, 929-30 (Pa. Super. 2003);
Commonwealth v. Bowen,
975 A.2d 1120, 1122 (Pa. super. 2009).
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,
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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.
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Appellant’s reliance on Bowen is misplaced. The trial court did not discern
Appellant’s lack of remorse from his silence, but from his statements. At the
sentencing hearing, Appellant said, “I know what I’ve done wrong, just like
the victim knows what she’s done wrong.” N.T. Sentencing, 11.24.21, at 15.
Thus, Appellant admitted wrongdoing but in the same breath placed blame on
the victim. The trial court did not abuse its discretion in finding that Appellant
lacked remorse.
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.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2023
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