The opinion
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2020 PA Super 290
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
MARK ANTHONY CARLSON
Appellant No. 1801 WDA 2019
Appeal from the Judgment of Sentence Entered November 21, 2019
In the Court of Common Pleas of McKean County
Criminal Division at No.: CP-42-CR-0000202-2018
BEFORE: SHOGAN, STABILE, and KING, JJ.
OPINION BY STABILE, J.: FILED DECEMBER 21, 2020
Appellant Mark Anthony Carlson appeals from the November 21, 2019
judgment of sentence entered in the Court of Common Pleas of McKean
County (“trial court”), following his jury convictions for strangulation,
aggravated assault, two counts of terroristic threats, simple assault, three
counts of recklessly endangering another person (“REAP”), and harassment.1
Upon review, we vacate Appellant’s judgment of sentence and remand for
further proceedings.
Following a domestic violence incident, the Pennsylvania State Police
charged Appellant with, inter alia, the foregoing offenses on April 7, 2018. On
April 18, 2018, the McKean County Public Defender’s Office (“PD’s Office”)
began its representation of Appellant in this matter. On April 23, 2018, Philip
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118 Pa.C.S.A. §§ 2718(a)(1), 2702(a)(4), 2706(a)(1), 2701(a)(2), 2705, and
2709(a)(1), respectively.
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Clabaugh, Esquire, Chief Public Defender, entered his appearance on behalf of
Appellant.2 With the exception of one,3 all charges against Appellant were
held for trial after a preliminary hearing.
Upon filing the information, the collapse of plea efforts, and the
completion of a pretrial conference, the Commonwealth filed a notice listing
this case for jury trial on November 20, 2018. Following trial continuances,
on January 8, 2019, Appellant, through Attorney Clabaugh, filed a “Motion for
Modification of Bail,” alleging that he had been offered “employment with
Asplundh Tree Services.” Motion for Modification, 1/8/19, at ¶ 5. Specifically,
Appellant claimed that “the salary for said position would provide a livable
wage, and that he has not maintained employment for a significant period of
time[.]” Id. at ¶ 5(a). He asserted that he could not begin employment with
Asplundh so long as he was required to wear “a SCRAM monitor.” Id. at
¶ 5(b). As a result, he requested, inter alia, that the trial court modify his bail
conditions to order the removal of the monitor.
After additional trial continuances, on May 28, 2019, Attorney Clabaugh
filed a “Motion for Leave to Withdraw Appearance” under Pa.R.Crim.P.
120(B)(2). Attorney Clabaugh averred that “[Appellant] contacted the [PD’s
Office] on May 20, 2019 to report a change of employment, and his recently
obtained employment takes him significantly over the eligibility guidelines for
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2The record indicates that, on August 6, 2018, Attorney Clabaugh filed an
entry of appearance on behalf of Appellant in the trial court.
3 A disorderly conduct charge under 18 Pa.C.S.A. § 5503(a)(1) was withdrawn.
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Public Defender representation[.]” Motion to Withdraw, 5/28/19, at ¶ 4.
Attorney Clabaugh further averred that the PD’s Office discussed the
withdrawal motion with Appellant and that Appellant’s “request would be for
counsel to remain his attorney through the completion of the matter[.]” Id.
at ¶ 7. Without conducting an evidentiary hearing or further determining
Appellant’s representation status, on May 29, 2019, the trial court granted
Attorney Clabaugh’s motion to withdraw. On June 3, 2019, Attorney Clabaugh
filed a “Praecipe to Withdraw Appearance.”
Subsequently, trial was rescheduled for July 15, 2019. By letter dated
July 2, 2019 and filed on July 10, 2019, Appellant pro se requested a trial
continuance. He claimed that, on June 8, 2019, he was in an accident and
broke his arm. Appellant indicated that he was scheduled for surgery on July
3, 2019. Of particular relevance Appellant wrote:
I have not had legal representation since the public defender was
removed from my case. All the attorney’s [sic] require $5000.00
retainer fee and I have not worked long enough to save that much
money. I had worked less than a month prior to the accident and
I have not worked since the accident. Therefore I have not been
able to hire an attorney due to financial reasons and health
reasons.
Letter, 7/2/19. On July 12, 2019, the trial court granted Appellant’s
continuance request. On August 30, 2019, the Commonwealth filed a notice
of trial, scheduling trial for September 30, 2019.
On September 4, 2019, the Commonwealth filed a “Motion for Status
Conference” to determine “whether [Appellant] has counsel and is prepared
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to proceed with trial on September 30, 2019.” Motion, 9/4/19, at ¶ 4. The
trial court scheduled a status conference for September 12, 2019. There,
Appellant pro se submitted a letter, requesting another continuance.
Appellant indicated that he still could not afford counsel.
[I am] asking the court for another post ponement [sic] for I have
not yet saved the required amount for the retainer of $5,000.
With [Attorney] Clayboughs [sic] withdrawment [sic] so late in the
my case and I had only been working a couple weeks before I had
my accident. With the cost of living and my child support and
priorities, I’m saving as much as possible for the retainer. I ask
if the trial set for 9-30-19 please be set at a later date? I myself
need the representation to defend my innosence [sic]. I have
$1800 saved to date.
Letter, 9/11/19 (unnecessary capitalizations omitted) (emphasis added). The
trial court, however, denied Appellant’s continuance request.
Prior to trial, Appellant pro se sent another letter to the trial court, filed
on September 20, 2019, requesting, once again, a continuance. Appellant
noted in part:
For I’m having another surgery on my arm that stems from my
accident on June 8th 2019. They have to remove a chunk of the
smaller bone in my arm and are taking a piece out of my hip to
replace the piece in my arm. Therefore, I’m in need of some heal
time of 8 to 12 weeks so there is no infection, and off of the pain
medication.
Letter, 9/20/19. Appellant claimed that the follow-up surgery was scheduled
for Friday, September 27, 2019. Id. The Commonwealth objected to
Appellant’s third pro se continuance request. On September 26, 2019, the
trial court denied the request. The case proceeded to trial, where Appellant
failed to participate in any meaningful way and remained silent. Appellant
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informed the court, “I’m really not going to say anything at all. Do you know
what I mean? Like without an attorney I don’t want to say anything.” N.T.,
Trial, 9/30/19, at 4-5. Following trial, the jury found Appellant guilty on all
charges.
Sentencing was scheduled for November 21, 2019,4 at which Appellant
once again informed the trial court “I don’t have the money to hire an attorney
for sentencing.” Trial Court Opinion, 1/10/20, at 6. The trial court sentenced
him to an aggregate term of 33 to 66 months’ incarceration. Appellant did
not file any post-sentence motion. On December 2, 2019, Attorney Todd M.
Mosser entered his appearance on Appellant’s behalf. On the same day,
Attorney Mosser filed a notice of appeal. The trial court directed Appellant to
file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
Appellant complied, asserting the trial court violated his right to counsel in
various ways.
In response, the trial court issued a Pa.R.A.P. 1925(a) opinion, wherein
—for the first time and without the benefit of any evidentiary hearings but
solely based on docket filings and correspondence—it rendered findings of
fact. The trial court found that Appellant had obtained employment with a
livable wage and had an income above the amount entitling him to
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4The trial court, on Appellant’s motion, continued sentencing from November
7, 2019 to November 21, 2019. The record does not contain Appellant’s
continuance request or the reasons underlying it.
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appointment of counsel.5 See Trial Court Opinion, 1/10/20, at 10. The trial
court, however, noted that Appellant had expressed a desire for Attorney
Clabaugh “to remain his attorney through the completion of the matter.” Id.
Yet, despite Appellant’s preference for appointed counsel, the trial court
granted Attorney Clabaugh’s motion to withdraw. Additionally, despite
Appellant’s subsequent indications to the court regarding the impact of the
automobile accident, the trial court determined that Appellant “was not
indigent and was ineligible for appointed counsel.” Id. In so determining, the
trial court seemingly dismissed the possible effects of Appellant’s child support
obligations and living expenses on his monthly income. Id. at 10-11. Finally,
the trial court appeared to rationalize its refusal to appoint counsel and its
denial of trial continuances on a belief that any delay in trial would take a “toll”
on the victims and diminish their rights to a timely resolution of this case. 6
Id. at 11-12. In this regard, the trial court noted that Appellant already had
been granted multiple continuances. Id. at 11. Accordingly, the trial court
concluded that Appellant was not entitled to any relief.
On appeal, Appellant presents two issues for our review.
[I.] Did the trial court err when it denied [Appellant] his right to
counsel based on a finding that he was not “indigent” because he
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5Nowhere in its Rule 1925(a) opinion does the trial court render any findings
on Appellant’s actual monthly income or expenses.
6 While we appreciate and recognize the impact of trial delays upon the
victims, such impact simply cannot be used to deny a defendant’s
constitutional right to counsel.
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had minor employment that allowed him to pay his living expenses
and child support?
[II.] Did the trial court err when it denied [Appellant’s] pro se
continuance request so that he could somehow ascertain how to
obtain counsel?
Appellant’s Brief at 2.7
Upon review, we conclude that the trial court erred in multiple regards
in its obligation to protect Appellant’s right to counsel under the Sixth
Amendment to the United States Constitution.8 It is well-established that a
criminal defendant has a Sixth Amendment right to counsel,9 which attaches
at “the initiation of adversary proceedings,” which includes the filing of a
criminal complaint. Commonwealth v. McCoy, 975 A.2d 586, 590 (Pa.
2009); see Commonwealth v. Prysock, 972 A.2d 539, 542 (Pa. Super.
2009) (citation omitted) (noting that criminal defendants have a Sixth
Amendment right to counsel). An accused unable to afford counsel has the
right to have counsel appointed for him. Powell v. Alabama, 287 U.S. 45,
53 (1932). “This right extends to everyone charged with an offense
punishable by imprisonment . . . and is binding upon the states.”
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7 We need not address Appellant’s second issue based on our disposition of
this appeal.
8 Appellant does not separately raise an argument under Article I, Section 9
of the Pennsylvania Constitution.
9The Amendment guarantees that, “[i]n all criminal prosecutions,” an accused
shall enjoy the right “to have the assistance of counsel for his defense.” U.S.
CONST. amend. VI.
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Commonwealth v. Brown, 476 A.2d 381, 384 (Pa. Super. 1984) (citations
omitted).
As our Supreme Court has explained:
The right to counsel is one of the safeguards of the Sixth
Amendment deemed necessary to ensure fundamental human
rights of life and liberty, and serves as one of the essential barriers
against arbitrary or unjust deprivation of human rights. The Sixth
Amendment stands as a constant admonition that if the
constitutional safeguards it provides be lost, justice will not still
be done. The essence of this right is the opportunity for a
defendant to consult with an attorney and to have him investigate
the case and prepare a defense for trial. Once the adversary
judicial process has been initiated, the Sixth Amendment
guarantees a defendant the right to have counsel present at all
critical stages of the criminal proceedings.
....
The denial of the right at any stage constitutes a structural defect
that must be remedied, because any such error affects the
framework within which the trial proceeds.
Kuren v. Luzerne County, 146 A.3d 715, 732-33 (Pa. 2016) (brackets,
ellipsis, citations and quotation marks omitted).
To effectuate the mandate of the Sixth Amendment right to counsel, as
interpreted by the United States Supreme Court in the seminal case of Gideon
v. Wainright, 372 U.S. 335 (1963), the Pennsylvania General Assembly
enacted the Public Defender Act (the “Act”), 16 P.S. 9960.1-9960.13. The Act
provides:
(a) The public defender shall be responsible for furnishing legal
counsel, in the following types of cases, to any person who, for
lack of sufficient funds, is unable to obtain legal counsel:
(1) Where a person is charged with juvenile delinquency;
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(2) Critical pretrial identification procedures;
(3) Preliminary hearings;
(4) State habeas corpus proceedings;
(5) State trials, including pretrial and posttrial motions;
(6) Superior Court appeals;
(7) Pennsylvania Supreme Court appeals;
(8) Postconviction hearings, including proceedings at the trial and
appellate levels;
(9) Criminal extradition proceedings;
(10) Probation and parole proceedings and revocation thereof;
(11) In any other situations were representation is constitutionally
required.
(b) The public defender, after being satisfied of the person’s
inability to procure sufficient funds to obtain legal counsel to
represent him, shall provide such counsel.
Every person who requests legal counsel shall sign an affidavit
that he is unable to procure sufficient funds to obtain legal counsel
to represent him and shall provide, under oath, such other
information as may be required by the court, the public
defender, or the Pennsylvania Rules of Criminal Procedure.
16 P.S. § 9960.6(a), (b) (emphasis added).
Here, it is undisputed that a public defender, Attorney Clabaugh, was
appointed to represent Appellant at the start of this case, consistent with
Section 9960.6. Yet, more than a year after entering his appearance for
Appellant, Attorney Clabaugh filed a motion to withdraw based on the
apparently contested allegation that Appellant’s “recently obtained
employment takes him significantly over the eligibility guidelines for Public
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Defender Representation.” Motion to Withdraw, 5/28/19, at ¶ 4. The motion
was premised on Rule 120, which provides in relevant part: “An attorney who
has been retained or appointed by the court shall continue such representation
through direct appeal or until granted leave to withdraw by the court pursuant
to paragraph (B).” Pa.R.Crim.P. 120(A)(4). The trial court, however, without
holding a hearing and over Appellant’s objection, granted the motion,
permitting Attorney Clabaugh to withdraw from the case.
In granting the motion, the trial court failed to comply with the
requirements set forth in Pa.R.Crim.P. 120(B). Under Rule 120(B), counsel,
as Attorney Clabaugh did here, may withdraw by filing a motion with the clerk
of courts. Pa.R.Crim.P. 120(B)(2)(a). Rule 120(B) further requires that
“[u]pon granting leave to withdraw, the court shall determine whether new
counsel is entering an appearance, new counsel is being appointed to
represent the defendant, or the defendant is proceeding without counsel.”
Pa.R.Crim.P. 120(B)(3) (emphasis added). The Comment to Rule 120(B)
explains:
The court must make a determination of the status of a case
before permitting counsel to withdraw. Although there are many
factors considered by the court in determining whether there is
good cause to permit the withdrawal of counsel, when granting
leave, the court should determine whether new counsel will be
stepping in or the defendant is proceeding without counsel, and
that the change in attorneys will not delay the proceedings or
prejudice the defendant, particularly concerning time limits.
Id., cmt.
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Here, the trial court simply failed to comply with Rule 120(B).
Specifically, it failed to determine whether new counsel would be entering an
appearance, new counsel would be appointed to represent Appellant, or
Appellant would be proceeding pro se. See Pa.R.Crim. 120(B)(3).
Next, in light of the trial court’s plain error in failing to comply with Rule
120, it unsurprisingly also failed to analyze Appellant’s eligibility for appointed
counsel under Pa.R.Crim.P. 122. Rule 122 of the Pennsylvania Rules of
Criminal Procedure, relating to appointment of counsel, provides:
(A) Counsel shall be appointed:
(1) in all summary cases, for all defendants who are without
financial resources or who are otherwise unable to employ counsel
when there is a likelihood that imprisonment will be imposed;
(2) in all court cases, prior to the preliminary hearing to all
defendants who are without financial resources or who are
otherwise unable to employ counsel;
(3) in all cases, by the court, on its own motion, when the
interests of justice require it.
(B) When counsel is appointed,
(1) the judge shall enter an order indicating the name, address,
and phone number of the appointed counsel, and the order shall
be served on the defendant, the appointed counsel, the previous
attorney of record, if any, and the attorney for the Commonwealth
pursuant to Rule 114 (Orders and Court Notices: Filing; Service;
and Docket Entries); and
(2) the appointment shall be effective until final judgment,
including any proceedings upon direct appeal.
Pa.R.Crim.P. 122(A), (B) (emphasis added). The Comment accompanying
Rule 122 states that paragraph “(A)(3) retains in the issuing authority or judge
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the power to appoint counsel regardless of indigency or other factors when,
in the issuing authority’s or the judge’s opinion, the interests of justice require
it.” Id., cmt. (emphasis added).
If in determining the status of counsel under Rule 120(B), the trial court
finds a defendant is without sufficient financial resources to hire one, the court
must appoint counsel. To the extent the trial court assessed Appellant’s right
to appointed counsel based principally upon the singular representation that
Appellant was earning a living wage, the trial court erred. The test under Rule
122(A)(2) is not whether a defendant earns a living wage, but rather, whether
he or she is without financial resources or is otherwise unable to employ
counsel. While certainly consideration of a person’s income is a weighty
factor, the test under Rule 122(A)(2) is more encompassing than the single
criteria of a person’s wages. Instantly, the trial court failed to conduct any
hearings for purposes of creating a record on Appellant’s eligibility for
appointed counsel under the criteria of Rule 122(A)(2).
Moreover, where a defendant is entitled to counsel, a colloquy is
required to ensure that any waiver of the right or entitlement is voluntary,
knowing and intelligent. See Pa.R.Crim.P. 121. Here, at no point prior to or
during trial did the trial court conduct an on-the-record colloquy under Rule
121 to determine whether Appellant knowingly, voluntarily or intelligently
waived his right to counsel or otherwise was prepared to proceed pro se. This
too was in error. See Commonwealth v. Neal, 563 A.2d 1236, 1243 (Pa.
Super. 1989) (holding trial court denied defendant his constitutional right to
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counsel by dismissing public defender and forcing defendant to proceed pro
se; defendant “was literally forced by the court to represent himself without
being apprised of the consequences and pitfalls thereof”), appeal denied,
575 A.2d 564 (1990); Brown, 476 A.2d at 388 (holding defendant did not
waive right to counsel where he was unable to afford attorney and court did
not conduct “penetrating and comprehensive examination” of all
circumstances pertaining to any waiver of right to counsel). Had the court
done so, it would have learned what was already obvious. Appellant was not
knowingly, voluntarily or intelligently waiving his right to counsel, as
evidenced by his consistent and repeated protestations to the court.
Finally and most importantly, it bears repeating that the trial court did
not hold any hearings to inquire into Appellant’s financial situation, i.e., to
determine the nature of Appellant’s employment, his income and liabilities, or
whether he had the financial means to afford counsel. Among other things,
Appellant attributed his inability to hire counsel to the curtailment of
employment due to an injury, the inability to save sufficient funds to retain
counsel, and as important, his child support obligations. The trial court failed
to consider these and other reasons in denying appointed counsel. Even
though Rule 121(b)(3) does not contain an express requirement that a trial
court hold a hearing prior to permitting counsel to withdraw from a case, we
find that one was warranted where, as here, an objection was lodged to a
withdrawal motion and factual issues exist as to Appellant’s ability to afford
counsel. On this point, we find Brown instructive because of its proffered
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guidance for conducting a comprehensive inquiry into a defendant’s financial
situation.
In Brown, the public defender found the appellant ineligible for
representation by appointed counsel. The appellant appeared twice before
the trial court prior to trial to explain that he could not afford the services of
private counsel. In response, the public defender noted, inter alia, that the
appellant worked at a club, earning $100.00 a week, and owned a 1970
Cadillac. See Brown, 476 A.2d at 383-84. This Court, however, concluded
that the trial court failed to conduct an extensive on-the-record examination
of the appellant’s financial position. We particularly observed that the trial
court did not inquire sufficiently into the appellant’s liabilities.10 Id. at 387.
In support, we quoted with approval the following:
This Court in passing on applications to proceed in forma pauperis
looks not only to what the applicant’s income and/or cash position
is but what his periodic liabilities are. Thus a person with an
income of $600 a month has been allowed to proceed in forma
pauperis where his present obligations consume his entire income.
The mere fact that one has money in the bank is therefore not
enough to make frivolous his claim of indigency for purposes of in
forma pauperis. In addition to considering the defendant’s
liabilities, the court should consider the cost of representation for
the crime charged.
Id. at 386 (quoting United States v. Kahan, 415 U.S. 239, 244-45 (1974)
(Douglas, J., concurring). This case is far more egregious than Brown where
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10We observed that trial court did not use the now-rescinded Pa.R.Crim.P.
317 “Application Form for the Assignment of Counsel,” which we characterized
as “imperfect,” “incomplete” and a non-exclusive “means of determining a
defendant’s eligibility” for appointed counsel. Brown, 476 A.2d at 386-87.
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the trial court in fact conducted evidentiary hearings, but fell short in its
examination. The trial court here conducted no hearings on Appellant’s ability
to obtain counsel. Thus, at a minimum, and consistent with Brown, a hearing
here was necessary so that the trial court could “determine,” under Rule
121(b)(3), Appellant’s representation status and his ability to retain counsel,
to ensure Appellant’s constitutional right to counsel was protected. When a
defendant claims an inability to afford counsel, the right to counsel demands
that the trial court conduct a thorough examination of a defendant’s financial
wherewithal.
Instantly, after the PD’s Office was excused from this case without the
required status determination of counsel for Appellant, Appellant repeatedly
asked the court for appointment of counsel, claiming that he lacked the
resources to hire private counsel.11 The trial court, however, denied all
requests without a hearing. The court erred. Given the nature of the requests
and their constitutional underpinnings, the trial court should not have
summarily disposed of the requests upon the assumption—made by the PD’s
Office and trial court—that Appellant may no longer be indigent because of his
employment status. Rather, Rule 122 requires that the court appoint counsel
for all defendants who “are without financial resources or who are
otherwise unable to employ counsel.” As discussed, this standard is not
limited to indigency, but also admits consideration of other factors affecting
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11 Appellant’s pro se communications with the trial court certainly suggest
financial constraints that prevented him from retaining counsel.
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a defendant’s ability to afford counsel. Similarly, Section 9960.6(a) of the Act
is not so limited and requires that a public defender furnish legal services to
any person “who, for lack of sufficient funds, is unable to obtain legal
services.”12 16 P.S. § 9960.6(a) (emphasis added).13 As the record, detailed
above, reveals, the trial court ignored Appellant’s repeated requests for
appointed counsel and the stated necessity for the requests. In particular, we
are troubled by the trial court’s lack of inquiry into how Appellant’s short term
of employment, his physical injury, and his existing child support obligations
may have affected his ability to retain counsel. Put differently, because of the
trial court’s failure to inquire into Appellant’s financial position, the record is
bereft of any evidence of (1) the nature of Appellant’s employment, (2) his
monthly income, (3) his outstanding liabilities, and (4) other reasons that
could have affected his ability to secure counsel.
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12 “While the Act does not specifically quantify what constitutes sufficient
funds, its language makes clear that sufficient funds for any given individual
are those that enable that individual to hire private counsel for his or her
defense.” Dauphin Cty. Pub. Def.’s Office v. Court of Common Pleas of
Dauphin Cty., 849 A.2d 1145, 1149 (Pa. 2004) (some quotation marks
omitted)
13 We do not mean to suggest herein that all reasons given for lack of funds
are sufficient to require appointment of counsel. Rather, we leave the
determination as to available resources to retain counsel to our trial courts,
which must review a defendant’s sources of income, liabilities, whether short-
or long-term, and other obligations to determine eligibility for public defender
assistance. See Brown, 476 A.2d at 387. We, however, note that the Act
“requires the Defender—not the private bar—to be responsible for furnishing
legal counsel to an accused” who lacks the financial means to obtain counsel.
Id. at 388 (citation omitted).
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In sum, based upon our review of the record, we find that Appellant’s
constitutional right to counsel was violated numerous times at some of the
most critical stages of this criminal proceeding—trial and sentencing—because
the trial court failed to determine on the record whether Appellant was entitled
to appointed counsel. Given the trial court’s numerous failures to protect
Appellant’s Sixth Amendment right to counsel, Appellant was compelled to
appear pro se at trial, where, as the trial transcript reveals, Appellant
remained reluctantly silent. Accordingly, we vacate Appellant’s judgment of
sentence and remand this matter, consistent with this Opinion, for a new trial
where the trial court shall first take all necessary and required steps to ensure
that Appellant’s right to counsel is protected. Should the trial court determine
Appellant is not entitled to appointed counsel, it shall state so on the record
with appropriate findings of fact supported by an evidentiary record.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2020
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