Com. v. Leslie, E. (judgment order)

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J. S25010/16 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. ERIC JOHN LESLIE, Appellant : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 709 WDA 2015 Appeal from the Judgment of Sentence, December 8, 2014, in the Court of Common Pleas of Elk County Criminal Division at No. CP-24-CR-0000278-2014 BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ. JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.: FILED APRIL 15, 2016 Eric John Leslie appeals from the December 8, 2014 judgment of sentence of the Court of Common Pleas of Elk County denying his post-trial motion and motion to modify sentence. We remand to the trial court in order to determine whether appellant’s waiver of his right to counsel was a knowing, intelligent, and voluntary decision. The trial court provided the following relevant procedural history: By criminal complaint filed June 9, 2014, [appellant] was charged with burglary, 18 Pa.C.S.A. [§] 3502(a)(2), a felony of the first degree; theft by unlawful taking or disposition, 18 Pa.C.S.A. [§] 3921(a), a felony of the second degree; and receiving stolen property, 18 Pa.C.S.A. [§] [3925(a)], a felony of the second degree. All of the charges were filed as a result of an incident on June 2, 2014, at the residence of Lori Dowie at [], Fox Township, Elk County, Pennsylvania. J. S25010/16 After his arrest and preliminary arraignment, [appellant] retained Attorney Jeffrey S. DuBois. . . . [Appellant] [] appeared before the Court on December 8, 2014, at which time a negotiated disposition was presented to the Court. As a result, [appellant] entered a guilty plea to burglary and was sentenced to a period of incarceration of not less than 36 months nor more than 72 months at the State Diagnostic and Classification Center at Pittsburgh, with a time-served credit of 76 days. The December 8, 2014 sentencing order was docketed on December 12, 2014, and thereafter [appellant] filed a timely post-sentence motion on December 19, 2014, sounding primarily in claims which asserted that his attorney was ineffective and that a presentence investigation report was mandated. .... At the time of the February 23, 2015 hearing, the testimony of Attorney Jeffrey DuBois and [appellant’s] mother, Debra Jean Leslie, was presented and documentary evidence was introduced. Pre- and post-hearing memorand[a] were also submitted or filed. On April 17, 2015, this Court entered a discussion and its order by which [appellant’s] post-sentence motion was denied. On May 1, 2015, [appellant] filed the pending timely notice of appeal and thereafter filed a statement of concise matters complained of on appeal.[1] Trial court opinion, 9/3/15 at 1-2 (citations omitted). During the February 23, 2015 hearing on appellant’s post-sentence motion, the trial court granted Attorney DuBois’s oral motion to withdraw as appellant’s counsel. (See notes of testimony, 2/23/15 at 32.) represented himself throughout the duration of the hearing. 1 See Pa.R.A.P. 1925(b). -2- Appellant J. S25010/16 Before we can consider the merits of the six issues appellant raises for our review, we must first consider whether appellant’s waiver of his right to counsel was proper. “When a waiver of the right to counsel is sought at the post-conviction and appellate stages, an on-the-record determination should be made that the waiver is a knowing, intelligent, and voluntary one.” Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998). In the case at bar, the record indicates that appellant filed a post-sentence motion pro se and entered the February 23, 2015 post-sentence motion hearing under the impression that Attorney DuBois had withdrawn from the case. (Notes of testimony, 2/23/15 at 31.) The record, however, does not indicate that the trial court, when it granted Attorney DuBois’s motion to withdraw, conducted a colloquy with appellant in order to make a determination on the record that appellant’s decision to waive his right to counsel and proceed with his post-sentence motion pro se was a knowing, intelligent, and voluntary decision pursuant to Grazier. We, therefore, remand to the trial court so that such a determination can be made. Case remanded. Jurisdiction retained. -3-

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