Com. v. Illarionov, V.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 04, 2017

Vadim Illarionov appeals from the judgment of sentence entered on

April 7, 2016, in the Court of Common Pleas of Chester County following his

conviction in a waiver trial of one count of driving under the influence of

alcohol ("DUI").1 Assistant Chester County Public Defender Stephen F.

Delano has filed a petition to withdraw, alleging that the appeal is frivolous,

accompanied by an Anders brief.2 After careful review, we deny counsel's

withdrawal petition, vacate appellant's judgment of sentence, and remand

for a new trial.

1 75 Pa.C.S.A. § 3802(a)(1).

2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).

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On February 28, 2015, appellant was arrested and charged with DUI.

The record reflects that Attorney Evan Kelly entered his appearance on

appellant's behalf by praecipe docketed on April 14, 2015. On July 2, 2015,

and again on August 14, 2015, the trial court continued appellant's trial

upon motion of defense counsel. The certified record before us is scant, and

it fails to contain defense counsel's motions for continuance.

Additionally, the docket sheet entries indicate that appellant completed

a waiver of counsel colloquy on September 28, 2015. Although the record

contains a written waiver of counsel colloquy that appears to be executed by

appellant and is dated September 28, 2015, this written colloquy bears no

time -stamp. Additionally, the execution line provided for the trial court to

acknowledge its finding that appellant knowingly, intelligently, and

voluntarily waived his right to counsel remains blank. Curiously, the

certified record contains a court order dated September 21, 2015, which was

7 days prior to appellant's alleged written waiver of counsel, in which the

trial court permitted Attorney Kelly to withdraw. The docket sheet entries,

however, fail to reflect that this order was docketed, and the order also

bears no time -stamp. The record further demonstrates that Attorney Kelly

never filed a motion to withdraw. We are, therefore, unable to determine

why the trial court permitted Attorney Kelly to withdraw.

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The record further reflects that on December 15, 2015, appellant

appeared for trial without representation, and the following colloquy took

place:

THE COURT: All right. And Mr. Illarionov, if you

could come up to 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 that you have

the right to be represented by an attorney and if you

can't afford one, one would be assigned to represent

you free of charge? Do you understand that?

[APPELLANT]: I do. I tried to get a public attorney,

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

a

attorney. All right. And I did have you read and fill

out this waiver of counsel colloquy. Do you

remember doing that?

[APPELLANT]: Yes, I do.

THE COURT: All right. And I note that on that, you

had requested stand-by counsel to be appointed.

Unfortunately, since you do not qualify for a free

attorney based on your income, I'm not going to be

appointing stand-by counsel. All right. Do you have

any questions or concerns about that?

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[APPELLANT]: Well, actually, I do. My wife and I

are going through a divorce. So I'm not sure if I

should proceed today because she is not supporting

me anymore. I'm living at a friend's house in

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 in the last seven years.

THE COURT: Have things changed since you filled

this out back on September 28th, 2015?

[APPELLANT]: Nothing has been filed yet.

THE COURT: All right. What I can do is have you go

up to the Public Defender's Office, explain all of that

to them, see if that makes any difference. But if it

does not, I'm not going to postpone the case. So

would you like to take the time to do that?

[APPELLANT]: No. Actually, I would like to proceed.

THE COURT: Okay. Very good. You can have a

seat there.

Notes of testimony, 12/15/15 at 2-4. The trial court then conducted a

waiver trial. At the close of evidence, the trial court found appellant guilty of

DUI.

The record next reflects that on March 14, 2016, Public Defender

Delano entered his appearance on appellant's behalf. On April 7, 2016, the

trial court sentenced appellant to 5 days to 6 months of imprisonment, a

$1,000 fine plus costs, and 20 hours of community service. On April 18,

2016, appellant filed a post -sentence motion in which he contended that the

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verdict was against the weight of the evidence. The trial court denied the

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 appellant to file a concise

statement of errors complained of on appeal within 21 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

the trial court filed a "brief opinion regarding the reasons for [its] rulings," it

erroneously determined that "[d]ue to [appellant's] failure to file and serve

upon this Court a concise statement of matters complained of on appeal as

directed by our Order of June 16, 2016, all allegations of error are deemed

waived [pursuant to] Pa.R.A.P. 1925(b)(4)(vii)." (Trial court opinion,

8/10/16 at 2.) This determination was in error because Rule 1925(c)(4)

permits counsel in a criminal case to serve on the judge a statement of

intent to file an Anders brief in lieu of filing a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. See Pa.R.A.P. 1925(c)(4).

On October 25, 2016, Public Defender Delano filed in this court a

petition to withdraw as counsel and an Anders brief, wherein Public

Defender Delano states that, after a conscientious review of the record, he

determined that an appeal is wholly frivolous.

withdraw pursuant

A request by appointed counsel to

to Anders and Santiago gives rise to certain

requirements and obligations, for both appointed

counsel and this Court. Commonwealth v.

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Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.

2015)

These requirements and the significant

protection they provide to an Anders

appellant arise because a criminal

defendant has a constitutional right to a

direct appeal and to counsel on that

appeal. Commonwealth v. Woods,

939 A.2d 896, 898 (Pa.Super. 2007).

This Court has summarized these

requirements as follows:

Direct appeal counsel seeking

to withdraw under Anders

must file a petition averring

that, after a conscientious

examination of the record,

counsel finds the appeal to be

wholly frivolous. Counsel

must also file an Anders brief

setting forth issues that might

arguably support the appeal

along with any other issues

necessary for the effective

appellate presentation

thereof.

Anders counsel must also

provide a copy of the Anders

petition and brief to the

appellant, advising the

appellant of the right to retain

new counsel, proceed pro se

or raise additional points

worthy of the Court's

attention.

Woods, 939 A.2d at 898 (citations

omitted).

There are also requirements as to the

precise content of an Anders brief:

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The Anders brief that

accompanies court -appointed

counsel's petition to withdraw

. . must:

. (1) provide a

summary of the procedural

history and facts, with

citations to the record;

(2) refer to anything in the

record that counsel believes

arguably supports the appeal;

(3) set forth counsel's

conclusion that the appeal is

frivolous; and (4) state

counsel's reasons for

concluding that the appeal is

frivolous. Counsel should

articulate the relevant facts of

record, controlling case law,

and/or statutes on point that

have led to the conclusion

that the appeal is frivolous.

Santiago, 978 A.2d at 361.

Id. at 1248. If this Court determines that appointed

counsel has met these obligations, it is then our

responsibility "to make a full examination of the

proceedings and make an independent judgment to

decide whether the appeal is in fact wholly frivolous."

Id. at 1248. In so doing, we review not only the

issues identified by appointed counsel in the Anders

brief, but examine all of the proceedings to "make

certain that appointed counsel has not overlooked

the existence of potentially non -frivolous issues."

Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

Our review of Public Defender Delano's application to withdraw,

supporting documentation, and Anders brief reveals that he has complied

with all of the foregoing requirements. We note that counsel also furnished

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a copy of the brief to appellant, advised him of his right to retain new

counsel, proceed pro se, and/or raise any additional issues that he deems

worthy of this court's attention, and attached to the Anders petition a copy

of the letter sent to appellant as required under Commonwealth v.

Millisock, 873 A.2d 748, 751 (Pa.Super. 2005). See Commonwealth v.

Daniels, 999 A.2d 590, 594 (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

in Millisock that remain binding legal precedent.").

As Public Defender Delano has complied with all of the requirements

set forth above, we conclude that counsel has satisfied the procedural

requirements of Anders. Once counsel has met his obligations, however, "it

then becomes the responsibility of the reviewing court to make a full

examination of the proceedings and make an independent judgment to

decide whether the appeal is in fact wholly frivolous." Santiago, 978 A.2d

at 355 n.5.

In this case, we need not turn to the merits of the issues appellant

wishes to raise because our independent review of the record reveals that

the trial court violated appellant's right to counsel as provided by the Sixth

Amendment to the United States Constitution and by Article I, Section Nine

of the Pennsylvania Constitution when it tried him pro se after failing to

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conduct an adequate waiver of counsel colloquy and when appellant's waiver

of counsel was equivocal.

"Both the right to counsel and the right to self -representation are

guaranteed by the Sixth Amendment to the United States Constitution and

by Article I, Section Nine of the Pennsylvania Constitution."

Commonwealth v. Payson, 723 A.2d 695, 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 if made with

knowledge and intelligence. If we are to uphold such

a waiver, the record must clearly demonstrate an

informed relinquishment of a known right. In order

to make a knowing and intelligent waiver, the

individual must be aware of both the nature of the

right and the risks and consequences of forfeiting it.

Id. at 700 (internal citations omitted).

Moreover,

the presumption must always be against the waiver

of a constitutional right. Nor can waiver be

presumed where the record is silent. The record

must show, or there must be an allegation and

evidence which shows, that an accused was offered

counsel but intelligently and understandingly

rejected the offer. Anything less is not waiver.

Id. (citation omitted).

Our supreme court has held that a trial court must conduct a "probing

colloquy . . . making a searching and formal inquiry" into the following

questions:

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(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 that he has the

right to be represented by counsel, and the right to

have free counsel appointed if he is indigent; (2) the

defendant understands the nature of the charges

against him and the elements of each of those

charges; (3) the defendant is aware of the

permissible range of sentences and/or fines for the

offenses charged; (4) the defendant understands

that if he waives the right to counsel he will still be

bound by all the normal rules of procedure and that

counsel would be familiar with these rules; (5) [the]

defendant understands that there are possible

defenses to these charges which counsel might be

aware of, and if these defenses are not raised at

trial, they may be lost permanently; and (6) the

defendant understands that, in addition to defenses,

the defendant has many rights that, if not timely

asserted, may be lost permanently; and that if errors

occur and are not timely objected to, or otherwise

timely raised by the defendant, the objection to

these errors may be lost permanently.

Commonwealth v. Lasko, 14 A.3d 168, 173 (Pa.Super. 2011) (citation

omitted; brackets in original).

Our state and federal constitutions guarantee both the right to counsel

and the right to self -representation. Faretta v. California, 422 U.S. 806,

821 (1975) (implicit in the structure of the Sixth Amendment is the right of

a criminally accused to conduct his own defense); Commonwealth v.

Szuchon, 484 A.2d 1365, 1376-1377 (Pa. 1984) (an accused has a right to

conduct his own defense pursuant to Article 1, Section 9 of the Pennsylvania

Constitution). "[I]n order to invoke the right of self[ -]representation, the

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request to proceed pro se must be made timely and not for purposes of

delay and must be clear and unequivocal." Commonwealth v. Davido,

868 A.2d 431, 438 (Pa. 2005). In considering whether such a request is

unequivocal, we consider "a myriad of factors[,]" including, but not limited

to, whether the request was for hybrid representation or merely for the

appointment of standby or advisory counsel; the trial court's response to a

request; whether a defendant has consistently vacillated in his request; and

whether a request is the result of an emotional outburst. Id. at 439. "[T]he

inquiry surrounding whether a request to proceed pro se is unequivocal is

fact intensive and should be based on the totality of the circumstances

surrounding the request." Id.

Here, even assuming that the written colloquy contained in the

certified record before us lacked deficiencies, our supreme court has held

that a written waiver, without more, is not sufficient to establish a knowing

and intelligent waiver of counsel. Lasko, 14 A.3d at 173 (citation omitted).

Additionally, this court has held that the trial court must conduct a

"penetrating and comprehensive" colloquy on -the -record. Id. (citation

omitted). Accordingly, we examine the oral colloquy to determine whether it

was constitutionally sufficient. We also consider the record as a whole to

determine, based upon the totality of the circumstances, whether appellant

unequivocally waived his right to counsel.

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Here, it is clear that the 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 for the offenses charged; (3) whether appellant understood that

if he waived the right to counsel, he would still be bound by all normal rules

of procedure and that counsel would be familiar with these rules;

(4) whether appellant understood that there were possible defenses to the

charges that counsel might be aware of, and that if these defenses were not

raised at trial, they may be lost permanently; (5) whether appellant

understood that, in addition to defenses, he had many rights that, if not

timely asserted, may be permanently lost; and (6) whether appellant

understood that if errors occurred and were not timely objected to, or

otherwise timely raised by appellant, these errors could be permanently lost.

Moreover, the totality of circumstances present in this case

demonstrates that appellant's waiver of counsel was equivocal. In response

to the trial court's inquiry as to whether appellant had any concerns,

appellant stated, "actually, I do." (Notes of testimony, 12/15/15 at 3.)

Appellant then stated that he was "not sure if [he] should proceed today"

and attempted to explain his reduced income and inability to afford counsel

in light of his separation from his wife. (Id. at 3-4.) The trial court,

however, did not permit appellant to explain his financial situation, but,

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rather, informed appellant that he could, at that point in the proceedings, go

to the public defender's office and explain, but if that did not make a

difference, the trial court would not postpone the case. (Id. at 4.) It then

asked appellant if he would "like to take the time to do that." (Id.) It was

then that appellant elected to proceed pro se. (Id.) Additionally, appellant

is represented by an assistant public defender in this appeal; albeit, he is

seeking to withdraw.

Given these considerations, it is abundantly clear that appellant's

waiver of counsel was equivocal and that the waiver of counsel colloquy was

fatally deficient in fulfilling the requirements set forth by the Pennsylvania

Supreme Court. In such circumstances, there are no assurances that

appellant knowingly, voluntarily, and intelligently waived his right to counsel.

Accordingly, we vacate appellant's judgment of sentence and remand the

case for a new trial. Given our disposition in this matter, we need not

address the claims appellant raised for our review. We do note, however,

that our review of the record raises concerns that implicate Birchfield v.

North Dakota, U.S. , 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016).

Petition to withdraw denied; judgment of sentence vacated; case

remanded for a new trial. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn,

Prothonotary

Date: 4/4/2017

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