Com. v. Zvolensky, R.

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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : RONNIE ZVOLENSKY, : : Appellant : No. 18 MDA 2013

Appeal from the Judgment of Sentence October 31, 2012, Court of Common Pleas, Lackawanna County, Criminal Division at No. CP-35-MD-0000524-2012

BEFORE: PANELLA, DONOHUE and MUNDY, JJ. MEMORANDUM BY DONOHUE, J.: FILED AUGUST 22, 2014

of sentence entered following his conviction of indirect criminal contempt of a protection support thereof pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). In the course of our review, we agreed with Counsel that the issues he identified were without merit, but we identified an issue of potential merit case for the filing of an amended Rule 1925(b) statement raising that issue and ordered the trial court to author an opinion addressing it.

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Counsel and the trial court have complied with our directives. In addressing this issue, the trial court candidly acknowledged its failure to conduct an adequate colloquy of Zvolensky and concluded that Zvol wavier of counsel was invalid. Trial Court Opinion, 7/9/14, at 4-5. We agree.

knowing, voluntary and intelligent. [Commonwealth v.] Starr, [] 664 A.2d [1326,] [] 1335. The court must also inquire whether:

(1) the defendant understands that he has the right to be represented by counsel, and the right to have free counsel if he is indigent; (2) the defendant understands the nature of the charges against him and the elements of each of those charges; (3) the defendant is aware of the permissible range of sentences and/or fines for the offenses charged; (4) the defendant understands that if he waives the right to counsel he will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules; (5) defendant understands that there are possible defenses to these charges which counsel might be aware of, and if these defenses are not raised at trial, they may be lost permanently; and (6) 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, the objection to these errors may be lost permanently.

[Id. fully advise the accused of the nature and elements

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Commonwealth ex rel. Clinger v. Russell, [] 213 A.2d 100, 102 ([Pa. Super.] 1965).

Commonwealth v. Clyburn, 42 A.3d 296, 299 (Pa. Super. 2012).

As we recounted in our initial memorandum in this appeal, the trial

:

MS TIGUE: This is the matter of the Commonwealth versus Ron Zvolensky docketed at 12 MD 524. His is present. He is currently

had an opportunity to

THE COURT: Well, I did the arraignment on

THE DEFENDANT: Yes, sir.

THE COURT: Now, did you apply for a public defender?

pro se litigant.

pro se on it. I filed a PCRA on the last violation and I went pro se. I filed for a -- I have a complaint in for ineffective counsel and I proceeded pro se in all of my dealings with these issues with my divorce, with

going to be held to the standards of a lawyer apparently, but I definitely have been working on this for 15 months and

THE COURT: On this contempt for 15 months?

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been trying to get back into the courts for the last guilty verdict of the last contempt. I have a PCRA --

N.T., 10/31/12, at 2-3. Moreover, Zvolensky did not execute a written colloquy.

There was no inquiry, much less one that could be considered

m, a

Clyburn, 42 A.3d at 300. Accordingly, we vacate the judgment of sentence and remand this matter for a new trial. See Commonwealth v. Phillips, 2014 WL 2535259 at *6 (Pa. Super. June 4, 2014) (holding that where there is a deficient

pro se, proper remedy is to vacate judgment of sentence and remand for new trial).1

1 After determining that Zvolensky was not properly colloquied, the trial ntempt. Trial Court Order, 7/9/14. At the time the trial court entered this order, however, this case was still pending before this Court on appeal. It is well established

procee

amending its records, correcting mistakes of the clerk or other officer of the court, or supplying defects or omissions in the record, these exceptions are

appeal; rather it was addressed to the only meritorious issue on appeal.

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Judgment of sentence vacated. Case remanded. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/22/2014

contempt conviction or his judgment of sentence. See Bell v. Kater, 839 A.2d 356, 357-58 (Pa. Super. 2003) (holding that an order substantively affecting an issue raised in a pending appeal is a nullity).

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