No. 2791 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Monroe County, Criminal Division, at No. 391 of 1978.
Before Wickersham, Montemuro and Watkins, JJ. Montemuro, J. files a dissenting opinion.
Judgment of sentence affirmed.
I must dissent from the opinion of the majority in this matter; the decision to affirm the judgment below in the face of the record in this case is in direct conflict with the law of this Commonwealth.
Appellant, Gilbert Dominguez, was convicted by a jury of robbery,*fn1 burglary,*fn2 felonious restraint,*fn3 kidnapping,*fn4 and criminal conspiracy.*fn5 Post-verdict motions were denied, and appellant was sentenced to a term of imprisonment of six (6) to twelve (12) years.
The single issue of merit raised by appellant on appeal is the contention that he did not receive his constitutionally-mandated right to effective representation at trial. The record absolutely supports this contention. Defendant did not have counsel, he did not knowingly and intelligently waive the right to have counsel, and neither he himself nor his court-appointed public defender represented him effectively.
The public defender was appointed to represent defendant-appellant on April 21, 1978. From that date until time of trial on October 9, 1978, counsel had one fifteen-minute interview with defendant (R.NT 02/21/80, pp 4-5), and had brief meetings in conjunction with other scheduled hearings which were used by counsel to inform defendant of technical maneuvers (R.NT 02/21/80, pp 5, 7, 8, 9, 11, 12). There was never a full interview between counsel and defendant. (R. NT 02/21/80, pp 5-6)
On September 5, 1978, approximately a month before trial and five months after counsel had been appointed, appellant filed a pro se petition alleging that he was indigent, requesting new court-appointed counsel, and further alleging that the public defender was biased against him and had not made himself available to prepare the case. On the record, as noted supra, these allegations were not without foundation. On September 11, 1978, the lower court denied that petition.
One day prior to trial defendant and his appointed counsel finally met. At this time the public defender was not prepared to try the case as he had assumed that appellant intended to enter a guilty plea. (N.T. 02/21/80 p. 18) Appellant informed counsel that he would not accepted his services and that he wanted to replace him with private counsel, a statement which naturally further discouraged the public defender from any preparation of the case. (N.T. 02/21/80, p. 13)
On October 9, 1978, the Commonwealth called the case to trial (N.T. 10/9/78). Both the defendant pro se and his appointed counsel moved for a continuance to enable him to obtain private counsel. (N.T. 10/9/78, pp. 3-5). The motion was denied. The court stated that defendant had been informed a month prior that he would not receive new appointed counsel and that the trial would not be continued. Id.
At sidebar, the judge was informed by counsel that defendant had instructed him not to take any active part in the trial.
Defendant : They can do everything I got to do. They deny me everything else. They can do whatever they want ...