Com. v. Mayes, D. (dissenting memorandum)
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J-S62017-13 NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DAVID L. MAYES Appellant No. 3158 EDA 2012 Appeal from the Judgment of Sentence October 18, 2012 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0008461-2004 ***** COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DAVID L. MAYES Appellant No. 3159 EDA 2012 Appeal from the Judgment of Sentence October 18, 2012 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0007605-2009 BEFORE: BOWES, J., LAZARUS, J., and WECHT, J. DISSENTING MEMORANDUM BY LAZARUS, J. I respectfully dissent. presents a meritorious issue. FILED JULY 23, 2014 Even if counsel had filed a proper petition to Rather, under the circumstances specific to J-S62017-13 this case, the trial court did not err in permitting Mayes to proceed pro se. To hold otherwise elevates procedure over substance. My review of the record reveals that the court, acting in an abundance of caution, asked Mayes five different times if he would like a courtappointed attorney and twice insisted on appointing an attorney despite hearing, clearly and unequivocally declined each offer. It is unfortunate that Mayes later regretted his decision to waive counsel, but a court cannot force a defendant to accept court-appointed counsel. Mayes, like all defendants, was entitled to a fair trial, not a perfect one. Lutwak v. United States, 344 U.S. 604 (1953). Even if the court had performed the required on-the-record oral colloquy, it is unlikely that Mayes would have permitted the court to appoint counsel on his behalf. Mayes very clearly did not want an attorney. proceed with the hearing. What he did want was to Now, the Majority seeks to do the opposite of what Mayes wanted, and its decision to remand for a new VOP hearing will require Mayes to return to court and further extend his time in jail. While the law may not recognize frustration, exhaustion, or delay as voluntary, and intelligent. Pa.R.Crim.P. 121(C). Judge Coonahan may not have reviewed each element of Pa.R.Crim.P.(A)(2) with Mayes, but she believed, given their lengthy discussion and his defiant rejection of court-2- J-S62017-13 and intelligent. The tension between what a defendant wants and the procedural requirements of the court can, at times, be difficult to reconcile. However, counsel for Mayes. In fact, she did everything she possibly could to protect For these reasons, I dissent. -3-
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