J-S31008-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KURT OSTRANDER,

Appellant No. 1439 MDA 2014

Appeal from the Judgment of Sentence July 29, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0004288-2012

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KURT OSTRANDER,

Appellant No. 1440 MDA 2014

Appeal from the Judgment of Sentence Entered July 29, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0005003-2012

BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 25, 2015

Appellant, Kurt Ostrander, appeals from the judgment of sentence of 

two concurrent terms of six (6) months’ to 729 days’ imprisonment, followed 

by two years’ probation, imposed after the trial court revoked Appellant’s 

parole and re-sentenced him at a Gagnon II hearing on July 29, 2014. 

Appellant challenges the validity of his waiver of counsel at said hearing. We 
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vacate the judgment of sentence and remand this case for a new Gagnon II 

hearing.

The trial court outlined the procedural history of this case in its 

1925(a) opinion as follows:

[Appellant] pled guilty to multiple charges on the abovecaptioned dockets on March 6, 2013.1 On the same dockets, 

Appellant admitted to violating the terms of his probation during 

a Gagnon II hearing on July 29, 2014, and he was resentenced 

the same day.2 Appellant filed a post-sentence motion on 

August 6, 2014, which [the trial court] denied on August 18, 

2014. 

1 On docket 4288 of 2012, Appellant pled guilty to theft by 

unlawful taking, 18 Pa.C.S.[] § 3921(a), and possession of 

a controlled substance, 35 P.S. § 780-113(a)(16). On 

docket 5003 of 2012, Appellant pled guilty to possession of 

a controlled substance, 35 P.S. § 780-113(a)(16). For 

each of the three charges, Appellant was sentenced [to] a 

probationary term of two years, all to run concurrently. 

2 On docket 4288 of 2012, Appellant was sentenced to 

two concurrent terms of six months[’] to 729 days’ 

incarceration, with credit for eighty days’ time served. On 

docket 5003 of 2012, Appellant was sentenced to two 

years’ probation, consecutive to the sentence imposed at 

count one of docket 4288 of 2012. 

The instant appeal has a convoluted history. Appellant 

filed a notice of appeal on August 27, 2014, and we ordered the 

filing of a concise statement of errors pursuant to Rule 1925(b) 

of the Pennsylvania Rules of Appellate Procedure. Appellant filed 

a timely concise statement on September 19, 2014, which we 

considered in a 1925(a) opinion dated October 7, 2014. In 

another opinion, dated November 3, 2014, this Court explained 

why we denied Appellant’s petition for bail pending appeal. 

On December 15, 2014, the Superior Court filed an order 

directing that we appoint counsel for Appellant for purposes of 

his appeal. The next day, we appointed Douglas Waltman, 

Esquire, as conflict counsel. A new concise statement was filed 

on January 13, 2015. 
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Trial Court Opinion (TCO), dated 2/24/15, at 1.

Appellant now presents the following question for our review:

Whether the sentencing court reversibly erred in conducting a 

Gagnon II hearing and re-sentencing [A]ppellant on July 29, 

2014, where [A]ppellant was not represented by counsel and 

where the record does not support an ascertainment that 

[A]ppellant knowingly, intelligently, and voluntarily waived 

counsel with regard to the Gagnon II proceeding? 

Appellant’s Brief, at 7. 

We begin by noting our standard of review. The determination of 

whether a waiver of counsel is valid is a question of law. “For questions of 

law, our scope of review is plenary and standard of review is de novo.” 

Commonwealth v. El, 933 A.2d 657, 662 (Pa. Super. 2007). 

In Commonwealth v. McDonough, 812 A.2d 504 (Pa. 2002), our 

Supreme Court stated the following:

The right to counsel in a criminal proceeding is a fundamental 

right guaranteed by the Sixth Amendment of the United States 

Constitution and Article One, Section Nine of the Pennsylvania 

Constitution. A defendant may, however, waive this 

fundamental right and proceed with his defense pro se. If a 

defendant desires to do so, he must petition the court and the 

court must follow the appropriate legal procedure for securing a 

valid waiver of counsel. 

Id. at 506 (citations omitted).

Rule 121 of the Pennsylvania Rules of Criminal Procedure governs 

waiver of counsel and provides the following safeguards to ensure that such 

waiver is done knowingly, voluntarily, and intelligently: 

(2) To ensure that the defendant’s waiver of the right to counsel 

is knowing, voluntary, and intelligent, the judge or issuing 
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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; 

(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(A)(2). 

Appellant argues that there is no Rule 121 waiver in the record in this 

case. Appellant’s Brief, at 9. We agree. An examination of the record 

indicates that the following exchange took place at the Gagnon II hearing on 

July 29, 2014:

District Attorney: Again, he says he does not wish to 

proceed with counsel. Your honor, we’re 

set for a formal Gagnon hearing.

The Court: Yes.
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District Attorney: [Appellant] has just informed me that he 

is not contesting any of the violations. I 

have been in discussions with just 

proceeding with three of them anyway, 

the failure to abstain from controlled 

substances, failure to abstain from 

alcohol, and failure to comply with 

chemical testing. So at this point, I 

believe he is waiving his right to counsel 

and admitting that he’s in violation of his 

supervision. 

...

The Court: You acknowledge that you were in 

violation of your probation and your 

parole for the reasons that have been set 

forth and because of your drinking?

Appellant: ([Appellant] moves head vertically.) Yes, 

Your Honor.

The Court: All right. All right. At 4288 of 2012, at 

Counts 1 and 2, [Appellant] having 

admitted the violations, I find that he is 

in violation of his probation. 

...

All right. Now, we have No. 5003 of 

2012 which was another probationary 

sentence, correct? 

Appellant: Yes, Your Honor.

Probation Officer: Yes. 

The Court: All right. [Appellant] has admitted the 

violation there. I find that he’s in 

violation. 

TCO, at 2-3. (citations omitted).
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Despite the fact that Appellant appeared before the trial court on 

several prior occasions without the assistance of counsel, case law dictates 

that:

an effective waiver of counsel must include a colloquy that 

contains an inquiry into the six areas listed [in Rule 121], 

conducted on the record by the judge. ‘[A]ny shortcoming 

relative to this colloquy cannot be gauged to the quality of an 

accused’s self-representation nor justified on the basis of his 

prior experience with the system.’

Commonwealth v. Payson, 723 A.2d 695, 704 (Pa. Super. 1999) (quoting 

Commonwealth v. Lloyd, 535 A.2d 1152, 1163 (Pa. Super. 1988).

The Commonwealth and the trial court concede that the required Rule 

121 colloquy was not conducted by the court at the Gagnon II hearing and, 

therefore, that this case should be remanded for a new Gagnon II hearing. 

We concur and remand this case for a new Gagnon II hearing at which time 

Appellant may be represented by counsel or Appellant may waive his right to 

counsel after the trial court conducts a thorough colloquy pursuant to 

Pa.R.Crim.P. 121(a)(2). 

Judgment of sentence vacated. Case remanded. Jurisdiction 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/25/2015