Superior Court rules on forfeiture of right to counsel
By Burt Rose
In Com. v. Kelly, 2010 WL 3506144, 2010 PA Super 165, No. 112 MDA 2009 (Sept. 9, 2010), the Superior Court of Pennsylvania ruled on a DUI appeal from a Judgment of Sentence from the Court of Common Pleas of York County. The Panel was composed of Judges BOWES, McEWEN, and CLELAND, who wrote the Opinion. Mr. Kelly argued that he was forced into accepting a guilty plea because the trial court erred in granting his court appointed counsel’s motion to withdraw on the eve of his trial. However, the Panel ruled that Kelly had intentionally forfeited his right to counsel, and so his guilty plea was upheld.
This was not a waiver of counsel case; Kelly never formally waived his right to counsel, nor did the trial court engage Kelly in a Rule 121 colloquy for waiver of counsel. The trial court, instead, denied Kelly’s right to counsel on another basis: intentional forfeiture by engaging in dilatory conduct.
While neither the United States Supreme Court nor the PA Supreme Court has expressly ruled on the level of misconduct or defiance that may give rise to forfeiture, the Superior Court relied upon the decision of the Third Circuit Court of Appeals in United States v. Goldberg, 67 F.3d 1092 (3d Cir.1995), where that court said that once a defendant has been warned that he will lose his attorney if he engages in dilatory tactics, any misconduct thereafter may be treated as an implied request to proceed pro se and, thus, as a waiver of the right to counsel.
Judge Cleland held that, under the circumstances of this case, Kelly had knowingly forfeited his right to counsel because he “was a criminal defendant who had been unwilling to cooperate with all three counsel assigned to him; who argued all counsel were incompetent because they refused to argue what he believed was the law; who, the day after his pro se motion to withdraw his first guilty plea was granted, filed pro se an omnibus pre-trial motion seeking suppression of evidence on a ground the trial court had already addressed (validity of search warrant); who wanted a counsel, but only one who would please him; who treated appointed counsel with disdain; whose trial had been already postponed because he could not agree with assigned counsel (counsel 2); who had been warned by the trial court that failure to cooperate with assigned counsel (counsel 3) would result in him representing himself pro se at trial; who sought to have other counsel appointed to him (who would have been counsel 4) and postpone the trial instead of trying to cooperate with counsel 3; and who clearly was not interested in listening closely what (trial) Judge Blackwell was telling him, consumed as he was in making his point counsel were ineffective and he knew the law better than assigned counsel. We have no difficulty concluding the trial court did not err in finding Kelly intentionally forfeited his right to counsel.”