Commonwealth v. Staton
Commonwealth v. Staton
Concurring Opinion
concurring.
I join the finding that the motion to withdraw should be denied because of untimeliness, though counsel acted entirely properly in filing the motion. I do not join the discussion of a “right to self-representation”; however thoughtful the monologue, that matter is not before us.
Opinion of the Court
OPINION
In this direct capital appeal, which has yet to be briefed, appellant Andre Staton’s court-appointed counsel Thomas N. Farrell, Esquire (hereafter “counsel”), filed a Motion to Withdraw on July 21, 2010, alleging that appellant sent correspondence to counsel “terminating” counsel’s representation. Counsel believed that appellant’s correspondence created an obligation to move to withdraw. On the merits of the motion, however, counsel forwards a novel and cogent argument against withdrawal, which occasions this Opinion, and which we will discuss below. For the reasons stated herein, we deny counsel’s request to withdraw and direct him to file his brief.
Appellant was tried in the Court of Common Pleas of Blair County on homicide and related charges, with the Honorable Elizabeth Doyle presiding. On May 2, 2006, a jury found appellant guilty of first-degree murder and related crimes. The following day, the jury returned a sentence of death based on its finding that two aggravating circumstances outweighed four mitigating circumstances. See 42 Pa.C.S. § 9711(c)(1)(iv). On June 1, 2006, the trial court formally imposed the sentence of death. See Post-Verdict Motions Opinion and Order dated June 25, 2007. On July 25, 2007, appellant filed an appeal directly to this Court from his judgment of sentence. See 42 Pa.C.S. § 9711(h)(1).
The trial court entered an order appointing current counsel on June 30, 2009; counsel is appellant’s seventh attorney in
The Motion to Withdraw alleges that, on June 7, 2010, appellant attempted to file a pro se post-trial motion with the trial court, in which he purported to “terminate” appointed counsel’s representation and sought leave to represent himself. Counsel attaches a copy of the motion as Exhibit 1, and notes that the trial court forwarded it to him pursuant to Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137, 1139 (1993), which forbids hybrid representation. The attached motion is titled “Post Trial Motion by the Defendant Andre Staton Terminating Counsel and Seek [sic] Leave to Represent Himself.” The first two paragraphs of the motion express appellant’s desire to terminate counsel’s representation and proceed pro se by stating:
*407 The Defendant Andre Staton Court Appointed Attorney Thomas N. Farrell, Esq.: Legal Representation Services are Terminated. Due to Conflict of circumstances and irreconcilable differences.
The Defendant Andre Staton hereby moves this court for leave to represent himself. Invoking his State and Federal Constitutional right pursuant to Pa.R.Crim.P. pending colloquy.
See Motion to Withdraw as Counsel, Exhibit 1. The remainder of appellant’s pro se motion is confusing to say the least: appellant’s primary complaint indicates a desire to litigate post-verdict motions, and complains that counsel merely filed a “statement of matters [complained of on appeal].” The motion thus reveals that appellant did not appreciate the procedural posture of the case. Appellant also does not specifically speak to whether he desires self-representation on appeal.
In his Motion to Withdraw, counsel also alleges that after appellant filed his motion, appellant sent correspondence to counsel confirming that he is purporting to “terminate” counsel’s representation. Counsel avers that under such circumstances, he has an ethical obligation to submit a motion to withdraw from his appellate appointment under Pa.R.Prof.C. 1.16(a)(3) (counsel “shall withdraw from the representation of a client if [he] is discharged”). Counsel asserts that he has “vigorously represented” appellant and would continue to do so, but believes he must submit such a request given Rule 1.16(a)(3).
Although counsel submits his request to withdraw premised upon the indigent appellant’s purported “discharge” of him and expressed desire to represent himself, counsel actually argues against granting the Motion, citing several reasons. First, according to counsel, the constitutional right to self-representation is grounded in the Sixth Amendment of the U.S. Constitution and Article I, Section 9 of the Pennsylvania Constitution. Counsel argues that in 2000, the U.S. Supreme Court held that there is no Sixth Amendment right to self-representation for purposes of appeal. See Martinez v. Court of Appeal of California, 528 U.S. 152, 120 S.Ct. 684, 145
Second, counsel argues that even if this Court were to recognize a right to self-representation on appeal under the Pennsylvania Constitution, the right is not absolute. Instead, this Court has indicated that it will limit the right to self-representation when it would lead to unnecessary delay or disruption of the judicial process. See Commonwealth v. Rogers, 537 Pa. 581, 645 A.2d 223, 224 (1994) (no Grazier
The Commonwealth has not filed a substantive reply to the issues raised by counsel. Instead, the Commonwealth has filed a No Answer Letter in reply to the Motion to Withdraw. In the letter, the Commonwealth states that it “believes that the first inquiry in this matter needs to be whether or not the Appellant has a right to represent himself on this appeal.” The Commonwealth offers no view on the merits of that first inquiry.
Counsel’s withdrawal motion presents an issue, novel in Pennsylvania, respecting the question of entitlement to self-representation on appeal. When an appellate court, including this Court, has been presented with a timely request to proceed pro se on appeal, the court generally has remanded for a “Grazier hearing” to determine if the waiver of counsel is knowing, intelligent, and voluntary. In Grazier, which was decided before Martinez, this Court indicated that a defendant-appellant in a criminal case has a right to self-representation on appeal, citing to Ellis and Faretta,
Counsel, however, has identified a legitimate question as to Grazier’s continuing vitality in light of the U.S. Supreme Court’s subsequent pronouncement in Martinez; this Court has not had the opportunity to squarely address the High Court’s Martinez decision.
In Martinez, the Court confronted the question of whether the appellate courts of California could deny a criminal appel
Based on Martinez, counsel argues that this Court’s finding that there is a federal constitutional to self-representation on appeal, as reflected by the procedure set forth in Grazier, has proven to be erroneous. More specifically, counsel notes, our prior cases recognizing such a right was based on our understanding that the High Court’s pronouncement in Faretta applied to appeals as well as trials, and Martinez now definitively establishes that this is not the case.
Counsel, however, speaks too narrowly when he argues that this Court must recognize a right to self-representation for purposes of appeal under the Pennsylvania Constitution before we may determine to grant the Motion to Withdraw and permit appellant to proceed pro se. The Martinez Court’s holding that the states are not required to permit self-representation on appeal as a federal constitutional matter, and its concomitant notation that the states can recognize such a right
Although counsel identifies an important and open question concerning the right to self-representation on appeal, we ultimately find that we need not resolve the question in order to decide the instant Motion to Withdraw. Rather, for purposes of decision, we may assume that there is a right to self-representation on appeal in Pennsylvania; yet, even so, as counsel recognizes in his alternative argument, the right, even if deemed constitutionally-based, is not absolute. See, e.g., Commonwealth v. Jermyn, 551 Pa. 96, 709 A.2d 849, 863 (1998).
In Rogers, supra, this Court considered whether the appellant Rogers could invoke a right to self-representation after counseled appellate briefs were filed. Rogers sought to waive his right to counsel on the basis of appellate counsel’s alleged ineffectiveness. Rogers also filed a pro se supplemental brief purporting to amend the counseled brief and add new issues. The Superior Court denied the request and refused to consider the additional issues. Upon further review in this Court, we first noted that it was well-settled that “a criminal defendant or appellant has the right to proceed pro se at trial and through appellate proceedings.” Rogers, 645 A.2d at 224 (citing Faretta, Ellis, and Pa.R.Crim.P. 121
Similarly, in the context of the right to self-representation for purposes of trial, this Court has noted that the right may be waived or limited when not timely invoked. See Jermyn, 709 A.2d at 863. In Jermyn, the appellant sought to represent himself for purposes of the penalty phase of a capital murder trial. The trial court denied the request as untimely. On appeal to this Court, Jermyn argued that he was entitled to forward his request during the pendency of the trial because the sentencing phase of a capital trial is distinct from the guilt phase. In finding that the lower court did not abuse its discretion, we indicated that there was a timeliness aspect to any such request; further, we noted, courts have refused such requests based on the need to minimize disruptions, to avoid inconvenience and delay, to maintain continuity, and to avoid confusing the jury. Id.
The instant case is one step removed from either Rogers or Jermyn, as the appellate briefs have not yet been filed and the concerns on appeal are different from those at trial. Nevertheless, the cases strongly and logically suggest that a request to proceed pro se, and a concomitant motion to withdraw, should be denied when forwarded at this late stage.
Accordingly, under the circumstances described above, we will deny counsel’s Motion to Withdraw. Counsel is directed to file the brief in this matter within fifteen days from the date of this decision. Furthermore, counsel’s Motion to File Briefs and/or to Present Oral Argument is also denied.
. The reasons for the multiple changes in counsel are not relevant to the question presented. In at least one instance, however, appointed counsel was removed after the Supreme Court Prothonotary's search of the Continuing Legal Education Board's website indicated that she was not qualified to represent a capital defendant under Pa.R.Crim.P. 801.
. The initial delay in the briefing schedule was due to appellant filing a Petition to Remand the Appeal Back to the Lower Court for a Hearing. This Court granted the Petition on January 25, 2008, and remanded the matter to the trial court while retaining jurisdiction. The trial court entered an order on August 14, 2008, concluding that there were no further meritorious issues to be raised on direct appeal. Thereafter, present counsel entered his appearance with this Court on July 29, 2009. On August 7, 2009, appellant filed a Motion to Stay Briefing Schedule. We treated the motion as a request for an extension of time and granted the request on October 13, 2009, extending the time to file the appellate brief for 90 days. Subsequently, there were two additional extension requests, which were granted, setting the final due date for appellant's brief for August 11, 2010.
. Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).
. Counsel has also filed a Motion to File Briefs and/or to Present Oral Argument as to Whether Appellant has a Right of Self-Representation. Counsel reiterates his view that the self-representation question is a "highly significant" issue of first impression in Pennsylvania. As this Court concludes that it can timely dispose of the motion to withdraw based upon the pleadings before us, we deny the request for further briefing and oral argument.
. The specific question presented in Ellis was whether the Superior Court was obligated to review a pro se brief submitted by a represented criminal appellant, i.e., whether the appellant was entitled to hybrid representation on appeal. The Superior Court reviewed the question, noting that in Pennsylvania there is a constitutional right to appeal and a right to an attorney at trial. Commonwealth v. Ellis, 398 Pa.Super. 538, 581 A.2d 595, 597 (1990) (en banc). The Superior Court then cited to Faretta, explaining that "growing out of the” Sixth Amendment
Thereafter, in our Ellis opinion, we adverted to the fact that the Superior Court had cited to Article V, Section 9 and Article I, Section 9 of the Pennsylvania Constitution, as well as Faretta, in addressing the hybrid representation issue. Our independent analysis of the question, however, did not include any references to the Pennsylvania Constitution. Instead, we reiterated what we had previously stated in Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811, 821 (1985), wherein we merely cited Faretta for the general proposition that a defendant has the right to proceed without counsel. Ellis, 626 A.2d at 1139.
. This Court has addressed the substance of the Martinez case in only one prior decision, Commonwealth v. Davido, 582 Pa. 52, 868 A.2d 431, 444 (2005). In Davido, the appellant invoked Martinez to question whether a defendant could be permitted to proceed pro se during the penalty phase of a capital trial. Davido held that the Sixth Amendment right to self-representation applied to a capital trial, including the penalty phase. Accordingly, we distinguished Martinez on that basis. The Superior Court addressed Martinez in Commonwealth v. Faulk, 928 A.2d 1061, 1065 n. 3 (Pa.Super. 2007), concluding that, in contrast to Martinez, this Court has held that the right of self-representation continued on appeal. Faulk cited to Grazier for this proposition. But, as will be discussed herein, it is apparent that Grazier ultimately relied on federal constitutional principles, and thus, the issue counsel identifies persists.
. Pursuant to Douglas v. California, 372 U.S. 353, 356-57, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), the U.S. Supreme Court has held as a matter of equal protection that states that afford a right to appeal must appoint counsel to represent an indigent criminal defendant for purposes of a first appeal under the Fourteenth Amendment. Cf. Commonwealth v. Liebel, 573 Pa. 375, 825 A.2d 630, 633 (2003) (recognizing that appellant has no federal right to counsel for purposes of discretionary appeal, but holding that in Pennsylvania there is a rule-based right).
. Rule 121 was formerly numbered Pa.R.Crim.P. 318, and it is referred to as Rule 318 in the Rogers decision.
. We recognize that the pro se motion appellant attempted to file in the trial court did not specifically address self-representation on appeal. But, for purposes of decision of counsel's Motion to Withdraw, we will assume that the attempt to "discharge” counsel provides a sufficient basis to so construe the request.
. We commend counsel for responsibly identifying the self-representation issue, and we have published, in part, to recognize that the question remains open.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellee v. Andre STATON, Appellant
- Cited By
- 19 cases
- Status
- Published