J-S58023-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

PATRICK L. COOK

                            Appellant                 No. 381 MDA 2016


                  Appeal from the PCRA Order February 4, 2016
                  In the Court of Common Pleas of Mifflin County
               Criminal Division at No(s): CP-44-CR-0000087-2013
                             CP-44-CR-0000517-2012



BEFORE: GANTMAN, P.J., BOWES, and PLATT, * JJ.

MEMORANDUM BY BOWES, J.:                          FILED OCTOBER 27, 2016

          Patrick L. Cook appeals from the February 4, 2016 order denying PCRA

relief.     We sua sponte vacate judgment of sentence and remand for

resentencing in light of the United States Supreme Court decision in Alleyne

v. United States, 33 S. Ct. 2151 (2013).

          On November 13, 2013, following a jury trial at which Appellant

proceeded pro se, but with the assistance of standby counsel, Appellant was

convicted of aggravated indecent assault, indecent assault, and corruption of

minors.       The offenses were perpetrated between November 2004 and

September 2007, and involved two females who were less than thirteen




* Retired Senior Judge assigned to the Superior Court.
J-S58023-16



years of age. Another offense occurred in July 2010, and involved one of

the earlier victims.

       Appellant appeared pro se at sentencing, but again had the benefit of

appointed standby counsel. The trial court imposed an aggregate sentence

of eleven to twenty-two years imprisonment based on the application of two

five to ten year mandatory minimum sentences for aggravated indecent

assault on a child less than thirteen years old.1           Appellant, who had been

determined to be a sexually violent predator, was also advised of the lifetime

reporting requirements and what that entailed.

       Following pronouncement of sentence, the court advised Appellant of

his post-sentence and appeal rights. Specifically, Appellant was told that he

had the right to file a written post-sentence motion within ten days stating

the particular relief sought. N.T. Sentencing, 2/28/14, at 18. The court also

advised Appellant that he had “the same right to assigned counsel as has

existed through sentencing.”          Id. at 19.      If he chose not to file a post-

sentence motion, the court explained that he had the option to appeal to the

Superior Court within thirty days.             Appellant was provided with a written

acknowledgement of post-sentence procedures. Appellant informed the trial

court on the record that he wanted a transcript of the proceedings and he

____________________________________________


1
  The mandatory minimum for aggravated indecent assault on a child was
subsequently changed to ten to twenty years imprisonment.



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was advised to put that in writing either in his post-sentence motion or in his

appeal. Id. at 20.

       Appellant did not file a direct appeal from judgment of sentence.

Rather, on February 23, 2015, he filed a timely pro se PCRA petition. The

court appointed counsel to represent him, and counsel filed an amended

petition on May 7, 2015 on Appellant’s behalf. Appellant asserted that the

court’s    failure   to   conduct   a   waiver-of-counsel   colloquy   pursuant   to

Pa.R.Crim.P. 121 and its denial of his request to permit standby counsel to

assume representation during the trial resulted in the violation of his federal

and state constitutional right to counsel and so undermined the truth

determining process that no reliable adjudication of guilt or innocence could

have taken place. Finally, Appellant maintained that although his waiver of

right to counsel was voluntary, it was neither knowing nor intelligent, and

that his performance at trial was so ineffective as to deprive him of a

defense.

       The court scheduled a hearing on the amended petition.             By order

dated July 31, 2015, Matthew M. McClenahen, Esquire, was granted leave to

withdraw as counsel2 and on August 6, 2015, attorney Steven P. Trialonas

was appointed as counsel. Counsel filed a second amended PCRA petition on

____________________________________________


2
   The trial court represents that Attorney McClenahen sought withdrawal
due to threats made by Appellant. Trial Court Opinion, 2/4/16, at 3.



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October 27, 2015, in which he averred that prior counsel had presented the

only issues of merit.     Following an evidentiary hearing on December 11,

2015, and the submission of briefs, the PCRA court denied relief on February

4, 2016.

      Appellant timely filed the instant appeal on March 4, 2016 and

complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.      The trial court adopted its

February 4, 2016 opinion as its Rule 1925(a) opinion, having concluded that

it addressed the issues identified.   Appellant presents two issues for our

review:

      A. Did the lower court commit an error of law and abuse of
         discretion by denying Defendant’s PCRA on the issue that the
         pro se colloquy was valid?

      B. Did the lower court improperly deny Defendant’s PCRA with
         respect to whether his constitutional right to an attorney was
         violated at the time of trial.

Appellant’s brief at 3.

      We first outline our standard of review of a PCRA court’s ruling:

            Under the applicable standard of review, we must
      determine whether the ruling of the PCRA court is supported by
      the record and is free of legal error. Commonwealth v.
      Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008). The PCRA
      court's credibility determinations, when supported by the record,
      are binding on this Court. Commonwealth v. Johnson, 600 Pa.
329, 966 A.2d 523, 532, 539 (2009). However, this Court
      applies a de novo standard of review to the PCRA court's legal
      conclusions. Commonwealth v. Rios, 591 Pa. 583, 920 A.2d
790, 810 (2007).



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Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011).

      In order to prevail on a petition for PCRA relief,

      a petitioner must plead and prove by a preponderance of the
      evidence that his or her conviction or sentence resulted from one
      or more of the circumstances enumerated in 42 Pa.C.S. §
      9543(a)(2). These circumstances include a violation of the
      Pennsylvania or United States Constitution or ineffectiveness of
      counsel, either of which "so undermined the truth-determining
      process that no reliable adjudication of guilt or innocence could
      have taken place." 42 Pa.C.S. § 9543(a)(2)(i) and (ii). In
      addition, a petitioner must show that the claims of error have
      not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3).
      An issue has been waived "if the petitioner could have raised it
      but failed to do so before trial, at trial, on appeal or in a prior
      state post[-]conviction proceeding." 42 Pa.C.S. § 9544(b). An
      issue has been previously litigated if "the highest appellate court
      in which the petitioner could have had review as a matter of
      right has ruled on the merits of the issue." 42 Pa.C.S. §
      9544(a)(2).

Id.

      The right to counsel in a criminal proceeding is a fundamental right

guaranteed under the Sixth Amendment of the United States Constitution

and Pa. Const. Art. 1 §9. Pa.R.Crim.P. 121 embodies the requirements for a

colloquy ensuring that a waiver of that fundamental right is given knowingly,

voluntarily, and intelligently. Rule 121(A)(2) provides that:

       (2) To ensure that the defendant's waiver of the right to
      counsel is knowing, voluntary, and intelligent, the judge or
      issuing authority, at a minimum, shall elicit the following
      information from the defendant:

            (a) that the defendant understands that he or she
            has the right to be represented by counsel, and the
            right to have free counsel appointed if the defendant
            is indigent;

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           (b) that the defendant understands the nature of
           the charges against the defendant and the elements
           of each of those charges;

           (c) that the defendant is aware of the permissible
           range of sentences and/or fines for the offenses
           charged;

           (d) that the defendant understands that if he or she
           waives the right to counsel, the defendant will still be
           bound by all the normal rules of procedure and that
           counsel would be familiar with these rules;

           (e) that the defendant understands that there are
           possible defenses to these charges that counsel
           might be aware of, and if these defenses are not
           raised at trial, they may be lost permanently; and

           (f) that 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, these
           errors may be lost permanently.

                    ....

Pa.R.Crim.P. 121.

     Appellant contends that the trial court did not conduct the mandated

colloquy. The court did not explain the nature of the charges, the elements

of the offenses, that Appellant acting pro se would be bound by the rules of

criminal procedure, and that the failure to raise defenses would be

permanently lost. Thus, he contends, his waiver of his right to counsel was

not knowing and intelligent. In support of his contention, Appellant adduced

the following evidence at the PCRA hearing.      He supplied the August 26,

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2013 transcript of the proceeding on his motion to withdraw, motion to

consolidate, and arraignment.            He also tendered the transcript of the

November 12, 2013 jury trial. Appellant also took the stand and answered

his counsel’s hypothetical question:

             Q. Mr. Cook if you had been informed of the elements of
       the charges that you were facing, if you had been informed of
       the possible range of sentences that you might receive upon
       conviction of those charges, if you had been informed that when,
       there are possible defenses to those charges that an attorney
       might be aware of , and if they’re not raised at trial you might
       waive them, and if you had been informed that in addition to
       defenses there are many rights that if not timely asserted could
       be lost permanently, if you had been informed of those things
       would your decision to go pro se have remained? Would you still
       have wanted to represent yourself at trial?

              A. Yes.

              Q. Yes. You would have wanted to represent yourself?

              A. Yes.

N.T. PCRA Hearing, 12/11/15, at 10-11.

       We find first, that trial court error in the colloquy was an issue that

could have been raised at trial and argued on direct appeal.3 Thus, under 42


____________________________________________


3
  When the issue of a defective waiver of counsel colloquy is raised on direct
appeal, there is no requirement that an appellant independently prove
prejudice. One need only demonstrate that the colloquy was, in fact
defective. See Commonwealth v. Tabu Nazshon Phillips, 93 A.3d 847,
855 (Pa.Super. 2014) (holding, on direct appeal, "[i]n light of the...court’s
failure to meet the minimum requirements of Rule 121 and to question
Appellant on the qualitative aspects of his waiver of counsel at multiple
(Footnote Continued Next Page)


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Pa.C.S. § 9544(b)4, the issue is waived.              However, since Appellant was

represented by counsel when the allegedly defective waiver colloquy

occurred, and is currently represented by counsel, Appellant also could have

asserted the ineffectiveness of trial counsel in failing to object to the

allegedly inadequate colloquy herein.            See Spotz, supra (alleging counsel

ineffectiveness for failing to object to the trial court’s allegedly ineffective

waiver colloquy).       Since Appellant did not assert any claim of ineffective

assistance of counsel, however, that claim is waived as well.

        Nevertheless, even if this claim was not waived, it would not afford

relief. While appearing to concede that the colloquy did not strictly comply

with Pa.R.Crim.P. 121, the PCRA court concluded that Appellant was not

entitled to relief as he suffered no prejudice.              The court pointed to




                       _______________________
(Footnote Continued)

critical stages of the proceedings, we are constrained to vacate the
judgment of sentence and remand for further proceedings.").


4
    42 Pa.C.S. § 9544(b) provides:

        (b) ISSUES WAIVED. – For purposes of this subchapter, an issue
        is waived if the petitioner could have raised it but failed to do so
        before trial, at trial, during unitary review, on appeal or in a prior
        postconviction proceeding.




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Appellant’s own admission that if he had been apprised of the Rule 121

concerns, he would still have chosen to proceed pro se.5

       Moreover, the trial court found that Rule 121’s colloquy requirements

did not apply where, as here, Appellant’s “extreme and serious misconduct

acted to forfeit his right to counsel.” Commonwealth v. Kelly, 5 A.3d 370,

378    (Pa.Super.     2010)      (holding      Pa.R.Crim.P.   121   and   its   colloquy

requirements do not apply to situations where forfeiture is found). The court

pointed to “a pattern of serious misconduct, abuse, threats, and an utter

failure to collaborate [in] his own defense.” Trial Court Opinion, 2/4/16, at

5. Appellant does not challenge that finding on appeal.6

____________________________________________


5
   Additionally, the court cited Appellant’s “repeated and numerous demands
to proceed pro se” and the fact that the court appointed standby counsel.
Trial Court Opinion, 2/4/16, at 5. The record reveals that on September 26,
2013, at the pretrial conference, the court asked Appellant if it was still his
intention to represent himself. N.T. Pretrial Conference, 9/26/13, at 1.
Appellant responded in the affirmative. Appellant added, however, that he
wanted to dismiss Mr. Sembach as standby counsel.             The court was
amenable if Appellant hired a lawyer to represent him. Again, Appellant
insisted that he was representing himself, but that he had a problem with
Mr. Sembach as standby counsel. The court advised that “pending the entry
of an appearance by any other lawyer that you may choose to hire in any
capacity, . . I’m not dismissing court-appointed standby counsel.” Id. at 7.
See Commonwealth v. Kelly, 5 A.3d 370 (Pa.Super. 2010) (recognizing
that the constitutional right to counsel of one's own choice is not absolute
and that where court-appointed counsel is involved, a defendant does not
have the right to choose other assigned counsel unless a substantial reason
exists).
6
   The record contains numerous accounts of Appellant’s abusive treatment
of both paid and appointed counsel, resulting in the withdrawal of three
(Footnote Continued Next Page)


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          Were we able to overlook Appellant’s failure to allege counsel’s

ineffectiveness, we would find nevertheless that Appellant is not entitled to

relief.    He was required to plead and prove, by a preponderance of the

evidence, three elements: (1) the underlying legal claim has arguable merit;

(2) counsel had no reasonable basis for his action or inaction; and (3) that

he    suffered     prejudice      because        of   counsel's   action    or   inaction.

Commonwealth v. Steele, 961 A.2d 786, 796 (Pa. 2008) (citing

Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)). The prejudice prong

proves insurmountable.

          Spotz and Mallory are instructive in this regard.                In Spotz, the

petitioner alleged inter alia that the waiver of his right to counsel during the

guilt phase of his trial was not voluntary, knowing, or intelligent; that he was

not competent to waive this right; that counsel was ineffective for failing to

object to the trial court's allegedly inadequate colloquy, and for numerous

deficiencies in the defense presented. Noting the Rule 121 requirements for

a waiver colloquy, our High Court relied upon its earlier decision in

Commonwealth v. Mallory, 941 A.2d 686 (Pa. 2008), for the proposition

                       _______________________
(Footnote Continued)

attorneys. At jury selection, standby counsel Mr. Sembach placed on the
record that when he made himself available to Appellant for questions,
Appellant told him “shut up, you can leave now.” N.T. Jury Selection,
11/4/13, at 20. He testified to other instances of foul language and serious
mistreatment by Appellant.      In light of our disposition, we need not
determine if Appellant’s conduct rose to the level of forfeiture of counsel.



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that the waiver rules were not the equivalent of the rights the rules were

designed to protect. The Court clarified:

     A waiver colloquy is a procedural device; it is not a constitutional
     end or a constitutional “right.” . . . An on-the-record colloquy is a
     useful procedural tool whenever the waiver of any significant
     right is at issue, constitutional or otherwise, e.g., waiver of a
     trial, waiver of the right to counsel, waiver of the right to call
     witnesses, waiver of the right to cross-examine witnesses, waiver
     of rules-based speedy trial time limits, etc. But the colloquy does
     not share the same status as the right itself.

Spotz, supra at 263 (quoting Mallory, supra at 697).

      Where a petitioner asserts ineffective assistance of counsel based on

counsel’s failure to object to a defective colloquy, it is not enough to prove

that the colloquy was defective; the petitioner must prove prejudice as with

any other ineffectiveness claim. To establish prejudice, the petitioner must

demonstrate a reasonable probability, considering the totality of the

circumstances, that but for counsel's ineffectiveness, he would not have

waived the right at issue. Mallory, supra at 698-704.

      Herein, had the ineffectiveness issue not been waived, Appellant could

not establish prejudice. In considering such a claim of ineffectiveness, the

court considers the totality of the circumstances and the entire record, not

just the colloquy itself. Id. Appellant testified at the PCRA hearing that he

would have proceeded pro se even if his counsel had ensured that the court




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provided a Rule 121 colloquy.7 Further evidence of a lack of prejudice was

supplied by standby counsel, Mr. Sembach. He testified at the evidentiary

hearing    that,    prior    to    trial,   he   presented   a   document   entitled

“Acknowledgement of Availability of Counsel” to Appellant for his signature.

Commonwealth Exhibit 1. He read the bolded portions of the document to

Appellant, the contents of which were “very similar or identical” to the Rule

121 waiver of counsel.            In preparing it, counsel wanted to ensure that

Appellant’s waiver of counsel was knowingly, voluntarily, and intelligently

done. Id. at 45. Appellant refused to sign it, although Deputy Laurie Kozak

signed the document acknowledging that Mr. Sembach reviewed the

document with Appellant. Mr. Sembach also testified that, in a letter he sent

to Appellant regarding a plea offer, he explained the statutory maximums

and delineated the guideline ranges for each offense.            N.T. PCRA Hearing,

12/1/15, at 35. Mr. Sembach concluded that Appellant “wanted to proceed

pro se” and “[he] knew exactly what he was getting into.” Id. at 43. Based

on the totality of circumstances, Appellant failed to demonstrate prejudice

and would not be entitled to relief.

       Appellant’s second issue, that the trial court erred in declining his

request to have standby counsel assume representation at trial, also does
____________________________________________


7
 While the Commonwealth maintains that Appellant’s admission that he
would have represented himself anyway constitutes a waiver, we disagree
with that conclusion.



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not afford relief.   It appears from the record that Appellant became

frustrated in his attempt to impeach one of the victims regarding her prior

statements to police detailing when the charged offenses occurred.      N.T.

Trial, 11/12/13, at 99-100. Following a recess to permit Appellant to consult

with standby counsel, a sidebar was held off the record. The trial court then

asked Appellant whether he was trying to suggest that the victim’s

statement referred to a later timeframe for the Mifflin County incidents.

Appellant responded that he “was trying to figure out she gave three

different statements of when the incident happened.” Id. at 101. At that

point, standby counsel interjected that, “Mr. Cook has told me that if I will

represent him fairly that he would allow me to do the questioning.” Id. The

court refused, stating that the defense would not be permitted to go back

and forth between a lawyer and pro se representation. Attorney Sembach

acquiesced in the court’s ruling, and responded, “Understood, your Honor.”

Id.   Appellant then asked, “I can’t have him represent me now?”      Id. at

102. The court reviewed Appellant’s difficulties with prior counsel, reminded

Appellant that he chose to proceed without counsel, that he had standby

counsel available, and suggested that counsel help Appellant develop

questions on this issue.    Id. at 102-03.    Appellant thanked the court,

accepted its suggestion, consulted with counsel, and when the proceedings

resumed, completed his cross-examination of the witness.




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      Although Appellant now characterizes the exchange as a request that

Mr. Sembach take over his representation for the remainder of the trial, the

trial court did not interpret it as such. The court construed it as a request

that Mr. Sembach cross-examine and impeach that witness with her prior

statements; Appellant would then resume his self-representation.          Hybrid

representation is not countenanced. Commonwealth v. Padilla, 80 A.3d
1238 (Pa. 2013).         Since it is not patently clear that Appellant sought to

revoke his waiver of counsel for the remainder of the trial, we find no factual

support in the record to support Appellant’s claim of trial court error. See

Commonwealth v. Bryant, 855 A.2d 726, 737 (Pa. 2004) (citing Buhl v.

Cooksey, 233 F.3d 783, 800 (3d Cir. 2000), for the proposition that, "[i]t is

well established that a defendant can waive the right of self-representation

after asserting it.”).

      Furthermore, in that this issue implicates trial court error, it could

have been asserted on direct appeal. Since Appellant was fully apprised of

his direct appeal rights and right to counsel at his sentencing, this issue is

waived under 42 Pa.C.S. § 9544(b).           See Commonwealth v. Berry, 877
A.2d 479 (Pa.Super. 2005) (en banc) (failure to file a direct appeal results in

waiver of non-effectiveness and non-illegal sentencing issues); in accord

Commonwealth             v.   Walls,   993 A.2d 289   (Pa.Super.   2010);

Commonwealth v. Jones, 932 A.2d 179 (Pa.Super. 2007) (recognizing




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that trial court error had to be pursued on direct appeal or the defendant

would forego the opportunity to litigate it).

      Moreover, Appellant did not and could not assert any claim of counsel

ineffectiveness.   As our High Court held in Commonwealth v. Blakeney,

108 A.3d 739, 756 (Pa. 2014), a defendant “who chooses to represent

himself cannot obtain post-conviction relief by raising a claim of his own

ineffectiveness or that of standby counsel.” The Blakeney Court explained

that, “the limited role of standby counsel is essential to satisfy the United

States Supreme Court's directive that a defendant's choice to proceed pro se

must be honored out of that respect for the individual which is the lifeblood

of the law even when the defendant acts to his own detriment.” Blakeney,

supra at 756-757. No relief is due on this ground.

      We note, however, that Appellant was sentenced to two mandatory

minimum sentences based on the age of his victims. In Alleyne, supra, the

Supreme Court held that any fact that increases the penalty for a crime

must be treated as an element of the offense. Hence, it must be submitted

to a jury rather than a judge and found beyond a reasonable doubt.        In

recognition that post-Alleyne, “application of a mandatory minimum

sentence gives rise to illegal sentence concerns,” Commonwealth v.

Watley, 81 A.3d 108, 118 (Pa.Super. 2013) (en banc), and that such claims




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are non-waivable, we sua sponte review the legality of Appellant’s

sentence.8 See Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa.Super.

2014) ("[A] challenge to the legality of the sentence can never be waived

and may be raised by this Court sua sponte.").

        In Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016), our Supreme

Court affirmed this Court’s holding that 42 Pa.C.S. § 9718, which imposed a

mandatory minimum sentence for violation of 18 Pa.C.S. §3123(a)(7)

(involuntary deviate sexual intercourse of a minor), pursuant to judicial fact-

finding of facts that were not elements of the crime, was facially

unconstitutional, non-severable, and void under Alleyne. That same facially

unconstitutional statute, 42 Pa.C.S. § 9718, was the basis for the imposition

of the mandatory minimum sentences herein.

        Appellant is entitled to the benefit of the ruling in Alleyne as his

judgment of sentence became final after Alleyne was decided on June 17,

2013,    and    the    instant   PCRA     petition   is   timely   filed.   Compare

Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super. 2015) (declining to give

Alleyne retroactive effect to cases on timely collateral review when the

defendant's judgment of sentence was finalized before Alleyne was

____________________________________________


8
  The issue whether Alleyne claims are illegality of sentence claims that
cannot be waived is presently pending before the Pennsylvania Supreme
Court.    See Commonwealth v. Barnes, 122 A.3d 1034 (Pa. 2015)
(allocatur granted September 18, 2015).



                                          - 16 -
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decided). For this reason, we vacate judgment of sentence and remand for

resentencing consistent with this memorandum and without the application

of the § 9718 mandatory minimum.

      Order vacated.   Judgment of sentence vacated.   Case remanded for

resentencing. Jurisdiction relinquished.

      President Judge Gantman joins the memorandum.

      Judge Platt concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2016




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