Com. v. Cole, M.

J-S29012-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

MATTHEW JOSEPH COLE :

:

Appellant : No. 1182 WDA 2021

Appeal from the Judgment of Sentence Entered August 30, 2021

In the Court of Common Pleas of Clearfield County Criminal Division at

No(s): CP-17-CR-0000264-2020

BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.: FILED: OCTOBER 31, 2022

Matthew Joseph Cole appeals from the judgment of sentence entered

by the Clearfield County Court of Common Pleas after the court held a bench

trial, with Cole acting pro se, and found Cole guilty of Driving Under the

Influence (“DUI”) and several summary offenses. Cole argues on appeal that

the court abused its discretion by failing to grant him a continuance on the

morning of the bench trial so that he could continue to try to obtain counsel.

We conclude that the trial court did not abuse its discretion, and we therefore

affirm Cole’s judgment of sentence.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

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Cole was charged with DUI and several summary motor vehicle

violations on January 22, 2020.1 In July 2020, Cole entered into a negotiated

plea agreement with the Commonwealth. However, on October 26, 2020, the

Commonwealth withdrew its consent to the plea agreement at a hearing in

which Cole appeared unrepresented. Cole indicated at the hearing that he had

applied to the Public Defender’s Office, but had not yet heard back. The trial

court asked the Assistant Public Defender to check into Cole’s application. The

trial court also specifically informed Cole that the Commonwealth’s withdrawal

of the plea offer meant his case was being placed back on the trial list, and

that his case would “be tried consistent with Rule 600. That will give you

enough time to obtain counsel, whether it’s the public defender’s office or

not.” N.T., 10/26/20, at 3.

Cole failed to appear at a pretrial conference on January 21, 2021. At

the following pretrial conference, on March 18, 2021, Cole appeared, but

almost three hours late. He did not have counsel. After the parties established

that the matter would proceed to a bench trial, the court set the trial date for

June 15, 2021. The Commonwealth asked the court to appoint standby

counsel, and the court agreed it would. The court instructed Cole in no

uncertain terms that his bench trial had been set for June 15, 2021, and would

begin promptly at 9 a.m.

____________________________________________

1 Cole did not appear for his preliminary hearing.

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The matter proceeded to the bench trial on the scheduled date, which

was almost one and one-half years after the charges had been filed against

Cole. The Chief Public Defender for Clearfield County was present at the trial

as standby counsel. He informed the court that the Public Defender’s Office

had received an application for representation from Cole the day before - June

14, 2021. However, the office determined that Cole did not qualify for a public

defender, and had notified Cole of its determination. See N.T., 6/15/21, at 5.

Cole, meanwhile, told the court he had sent 15 applications to the Public

Defender’s Office over the past year and a half. However, according to Cole,

those applications had repeatedly been returned to him on the basis that he

had failed to complete them correctly. When the court asked Cole for evidence

of this, Cole was only able to produce a single letter from the Public Defender’s

Office, dated December 1, 2020, stating that an application had been returned

to Cole for lack of documentation. See id. at 6. The court pointed out to Cole

that over six months had elapsed since he had received that letter. It

proceeded to inform Cole that if he could not provide any evidence that he

had received subsequent letters from the Public Defender's Office regarding

any applications he may have filed in those six months, or evidence of the

applications themselves, the court was going to proceed to trial. Cole was not

able to produce any such evidence.

Cole told the court, though, that he had hired a private attorney the day

before. According to Cole, the attorney informed him that he was unable to

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attend the trial the following day on such short notice. The court asked the

Commonwealth for its position on the continuance, and the Commonwealth

responded that it was ready to proceed to trial.

The case proceeded to the bench trial, with Cole acting pro se, and the

Chief Public Defender acting as standby counsel. The court found Cole guilty

of DUI and several summary offenses, and sentenced him to three to six

months’ incarceration for the DUI charge and to fines and costs for the

summary offenses. Cole filed a timely notice of appeal, and both Cole and the

trial court complied with Pa.R.A.P. 1925. Cole raises a single issue on appeal:

Whether the trial court erred when it denied [Cole’s] motion for

continuance to acquire legal counsel when [Cole] had neither

effectively waived his right to counsel and his conduct in the case

did not support [a] finding of forfeiture of the right to counsel.

Appellant’s Brief at 7 (unnecessary capitalization omitted).

Cole argues the trial court abused its discretion by denying his motion

for a continuance to obtain counsel.2 He asserts the court improperly denied

the motion based on its erroneous conclusion that he forfeited his right to

counsel by engaging in dilatory conduct. This claim offers Cole no basis for

relief.

____________________________________________

2 Cole does not point to any place in the June 15, 2021 transcript where he

actually moved for a continuance, nor do we see any such request in the

record. However, the court clearly treated the exchange that occurred on June

15, 2021, as an oral motion for a continuance, and we will do the same.

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As Cole acknowledges, it is within a trial court’s discretion to decide

whether to grant or to deny a motion for a continuance, and this Court will

reverse that decision only if we find the trial court abused its discretion. See

Commonwealth v. Ross, 57 A.3d 85, 91 (Pa. Super. 2012). Further, Rule

106(D) of the Rules of Criminal Procedure provides:

A motion for continuance on behalf of the defendant shall be made

not later than 48 hours before the time set for the proceeding. A

later motion shall be entertained only when the opportunity

therefor did not previously exist, or the defendant was not aware

of the grounds for the motion, or the interests of justice require

it.

Pa.R.Crim.P. 106 (D).

Cole does not dispute that he did not request a continuance until the

morning of the trial, nor does he argue that any of the conditions allowing the

court to entertain a motion filed within 48 hours of the proceeding exist here.

Therefore, it was, as the trial court found and the Commonwealth maintains,

well within the discretion of the court to deny a motion for a continuance under

Rule 106(D). See Commonwealth’s Brief at 4 (citing Commonwealth v.

Fisher, 372 A.2d 1, 5 (Pa. Super. 1977) (holding that a request for a

continuance made less than 48 hours prior to trial is at the court’s discretion,

and the trial court in that case did not abuse its discretion by denying the

defendant’s request for a continuance the day after trial began)).

Cole seems to argue, however, that the court abused its discretion

because the denial of his motion for a continuance had the effect of forcing

him to continue to trial pro se, which in turn violated his constitutional right

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to counsel. In making this argument, Cole acknowledges that the right to

counsel is not absolute and may be waived or forfeited. See Commonwealth

v. Lucarelli, 971 A.2d 1173, 1178-1179 (Pa. 2009). As for the latter, he

further acknowledges that a trial court may determine that a defendant has

forfeited his right to counsel and direct the defendant to proceed pro se in

instances where the defendant has engaged in extreme dilatory conduct. See

id. at 1180. Cole admits that while “there is evidence of some dilatory conduct

on [his] part[,]” “the question to be answered is whether he engaged in

conduct that could be considered extremely dilatory.” See Appellant’s Brief at

12, 17.

In essentially answering that question in the affirmative, the trial court

explained that Cole had been given plenty of time to secure counsel prior to

trial, but had failed to do so. The court told Cole as early as October 2020 that

the case was proceeding to trial and he needed to obtain an attorney. Then,

in March 2021, the court specifically instructed Cole that trial was set for, and

would take place on, June 15, 2021. Therefore:

[Cole] was aware of the date of the bench trial for nearly three

months and the charges for almost a year and a half; he should

not be rewarded for his lack of preparation by receiving a

continuance on the day of trial when the Court and

Commonwealth were prepared to move forward.

Trial Court Opinion, 12/29/21, at 4.

In its opinion, the trial court recognized Cole’s assertions on the morning

of trial that he had tried to apply for a public defender and had unsuccessfully

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submitted 15 incomplete applications in those efforts. The court, however,

pointed out that Cole had been unable to provide any evidence of these

applications except the single letter from December 1, 2020. See id. at 3. The

court added that Cole was also unable to demonstrate how he had been filling

out the forms incorrectly or that he had tried to correct whatever deficiencies

had been found in his alleged subsequent applications. See id. at 4. The court

continued:

Additionally, [Cole] was present for a proceeding on October 26,

2020. At that time, [Cole] told the Court that he had submitted

applications for representation, but had not yet been approved.

This Court sent an Assistant Public Defender to check on the status

of [Cole’s] application, and [Cole] was instructed to wait and

speak with her to determine what, if anything, was needed to

complete the application. [Cole] was also notified that his case

would be placed on the trial list, and he would need to obtain

counsel, either through the Public Defender’s Office or private

counsel. Nothing that [Cole] presented exhibited that he took the

necessary steps to follow the instructions of the Court or the Public

Defender’s Office. [Cole] willful[ly] failed to successfully complete

an application for representation.

Id. at 4.

The court also acknowledged that Cole claimed on the morning of trial

that he had obtained private counsel the day before trial. However, as the trial

court observed, there was no evidence the attorney either entered his

appearance or requested a continuance on behalf of Cole. See id.

We see no abuse of discretion in the court’s decision to deny Cole’s

request for a continuance and proceed to trial under these circumstances. We

do not agree with Cole’s assertion that the trial court erred by finding that he

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forfeited his right to counsel by engaging in sufficiently dilatory conduct. Cole

failed to obtain counsel despite having more than enough time to do so, and

despite being advised by the court that he needed to do so. Although Cole

claimed he had made multiple unsuccessful attempts to obtain representation

through the Public Defender’s Office, he was unable to produce any evidence

other than a single letter to support those allegations.

Even had Cole provided evidence of what he classifies as the

“miscommunication” with the Public Defender’s Office, it was incumbent upon

Cole to take the necessary steps to properly complete an application to the

Public Defender’s Office - or seek private counsel - within a reasonable time

of the trial date of which he had been duly notified. Instead, the Chief Public

Defender testified on the morning of trial that his office had received an

application from Cole just the day before, which it denied on the basis that

Cole did not qualify for a public defender. Therefore, it was not until the day

before trial, the date of which Cole had been aware of for months, that Cole

attempted to obtain private counsel. Based on this conduct, we see no error

on the part of the trial court in denying Cole’s motion for a continuance and

proceeding to trial with Cole acting pro se, as he had forfeited his right to

counsel. See Lucarelli, 971 A.2d at 1180 (citing Wilkerson v. Klem, 412

F.3d 449, 454 (3d Cir. 2005) (holding that a defendant who had been duly

notified of the date of his trial and who had been advised to obtain counsel in

sufficient time to be ready for trial, and who appeared on the scheduled date

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without counsel or a reasonable excuse for his failure to have counsel,

forfeited his right to counsel)).

We note that Cole also takes issue with the fact that he never waived

his right to counsel or received a colloquy regarding any such waiver.

However, in cases of forfeiture such as this one, it is not necessary for the

court to conduct a colloquy to ensure the defendant is knowingly and

voluntarily waiving the right to counsel. See Lucarelli, 971 A.2d at 1178.

Accordingly, no relief is due.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/31/2022

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