J-S65019-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NATHAN WAYNE LAUVER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 975 MDA 2019

Appeal from the Judgment of Sentence entered May 16, 2019,

in the Court of Common Pleas of Mifflin County,

Criminal Division at No(s): CP-44-CR-0000566-2018.

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

MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 10, 2020

Nathan Wayne Lauver appeals pro se from the judgment of sentence 

imposed after a jury convicted him of institutional vandalism.1 We remand for 

a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

The facts and procedural history are as follows: On August 15, 2018, 

the Commonwealth charged Lauver with institutional vandalism and the trial 

court appointed counsel to represent him. Thereafter, on December 28, 2018, 

Lauver filed a “Petition for Change of Appointed Counsel Due to Conflict.” The 

certified record contains no evidence that the trial court ruled on this petition. 

By order entered January 31, 2019, the case was scheduled for jury trial 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 3307(a)(3).
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beginning on March 11, 2019. That same day, Lauver’s counsel filed a petition 

to withdraw, based upon a breakdown in the attorney-client relationship. 

The trial court held a hearing on counsel’s motion to withdraw on 

February 19, 2019. No hearing transcript appears in the certified record. 

Rather, the record contains a “Waiver of Counsel” signed by Lauver and filed 

on that same date. The same day, the trial court entered an order granting 

counsel’s motion to withdraw and appointing Lauver standby counsel.

On February 26, 2019, Lauver filed a pro se motion for continuance of 

his trial date, which the Commonwealth opposed. By order entered March 7, 

2019, the trial court denied Lauver’s request for a continuance. After 

considering pre-trial motions filed by Lauver, the case proceeded to a jury trial 

on March 20, 2019. On that date, the jury convicted Lauver of institutional

vandalism. On April 1, 2019, Lauver filed a pro se “Post Verdict Motion For 

Judgment of Acquittal/Arrest of Judgment/New Trial,” as well as “Motion for 

Bail Pending Appeal,” and a “Motion for Transcripts of Proceedings.” The next 

day, the trial court granted Lauver’s request for transcripts, and deferred 

ruling on the remaining motions until sentencing.

On May 16 2019, the trial court sentenced Lauver to a $1,000.00 fine 

and a 9 to 24 months term of state incarceration. The court further ruled that 

bail would continue pending appeal, but if Lauver failed to file an appeal, “he 

shall appear at the Mifflin County Correctional Facility on June 17, 2019, for 

transfer to a State Correctional Institution.” A transcript of the sentencing 

hearing does not appear in the certified record. The record does contain, 
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however, Lauver’s written acknowledgement of post-sentence procedures, 

which he and standby counsel signed. There is no indication in the certified 

record that the trial court disposed of Lauver’s post-verdict motion. 

On May 24, 2019, Lauver filed a pro se “Post Sentence Motion For 

Judgment of Acquittal/Arrest of Judgment/New Trial.” The trial court denied 

this motion on May 29, 2019. This timely pro se appeal followed. Both Lauver 

and the trial court have complied with Pa.R.A.P. 1925.

Lauver now presents this Court a pro se brief that presents nine issues 

for our review. However, before we can address these claims, we must first 

consider a deficiency in the certified record. As noted, Lauver appears before 

this Court pro se. There is no indication in the certified record that Lauver 

ever made a knowing, intelligent waiver of his right to counsel on appeal 

pursuant to Grazier. Thus, we are constrained to remand this case for 

proceedings consistent with the following discussion.

A criminal appellant has a constitutional right to counsel on direct 

appeal. Commonwealth v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007). 

Pursuant to Grazier, “[w]hen a waiver of the right to counsel is sought at . . 

. the appellate stages an on-the-record determination should be made that 

the waiver is a knowing, intelligent, and voluntary one.” Grazier, 713 A.2d 

at 82. A Grazier hearing is required before we may adjudicate an appeal 

even when it is clear from the record that a particular appellant “clearly and 

unequivocally indicates a desire to represent himself,” Commonwealth v. 

Robinson, 970 A.2d 455, 459-60 (Pa. Super. 2009) (en banc), and even 
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when neither of the parties challenged the lack of a hearing. See 

Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011).

Here, although Lauver signed a waiver of counsel before he was 

convicted, and signed an acknowledgement of post-sentence procedures, 

there is no indication in the certified record that the trial court inquired, 

pursuant to Pa.R.Crim.P. 121(A)(2) (setting forth relevant considerations for 

determining whether a criminal defendant is making a knowing, intelligent,

and voluntary decision to proceed pro se), whether Lauver desired to waive 

his right to counsel in this direct appeal, and, if so, whether that decision was 

knowing, intelligent, and voluntary. In light of the unequivocal authority cited 

above, we are constrained to remand this case for a proper Grazier hearing, 

including a full consideration of the factors set forth at Pa.R.Crim.P. 121(A)(2). 

On remand, the trial court must hold a Grazier hearing and thereafter 

appoint counsel, if necessary. Because our remand may change the content 

and character of this appeal substantially, we relinquish our jurisdiction. See 

Robinson, supra, Stossel, supra. 

Case remanded with instructions. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/10/2020