Com. v. Jones, H.

• Court: Superior Court of Pennsylvania
• Decided: March 28, 2017
• Docket: Com. v. Jones, H. No. 695 WDA 2016
• Status: Unpublished

Opinion

J-S92023-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

HAROLD ALLEN JONES, III

Appellant No. 695 WDA 2016

Appeal from the Judgment of Sentence April 11, 2016 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0001582-2014

BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*

JUDGMENT ORDER BY MOULTON, J.: FILED MARCH 28, 2017

Harold A. Jones, III, appeals pro se from his April 11, 2016 judgment

of sentence entered in the Fayette County Court of Common Pleas. We

remand for further proceedings.

On April 6, 2016, Jones pled nolo contendere to possession with intent

to deliver cocaine, possession of a controlled substance, and possession of

drug paraphernalia.1 On April 11, 2016, the trial court sentenced Jones to

____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 35 P.S. §§ 780-113(a)(30), 780-113(a)(16), and 780-113(a)(32), respectively. On April 6, 2016, Jones also pled guilty to simple assault at CP-26-CR-0000975-2015, which is not the subject of this appeal. J-S92023-16

12 to 24 months’ imprisonment. On May 11, 2016, Jones filed a timely pro

se notice of appeal.2

The trial court ordered Jones to file a Pennsylvania Rule of Appellate

Procedure 1925(b) statement, and Jones filed a pro se statement on May 23,

2016. The trial court notified counsel of the pro se filing, and informed

counsel that if he wished to withdraw, he must file a motion to withdraw.

Counsel did not file a motion or a counseled Rule 1925 statement. On July

11, 2016, the trial court issued a Rule 1925(a) opinion in response to the

pro se Rule 1925(b) statement.

Jones timely filed his notice of appeal and was entitled to counsel on

appeal.3 See Pa.R.Crim.P. 120(A)(4) (“An attorney who has been retained

or appointed by the court shall continue such representation through direct

appeal or until granted leave to withdraw by the court”). The record

contains no motion to withdraw as counsel. Because Jones was represented

by counsel, we cannot consider his pro se filings. See Commonwealth v. ____________________________________________

2 Although the notice of appeal is date-stamped May 13, 2016, the envelope bears a May 11, 2016 postmark. Therefore, under the prisoner mailbox rule, Jones’s notice of appeal is timely. See Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa.Super. 2011) (noting “prisoner mailbox rule provides that a pro se prisoner’s document is deemed filed on the date he delivers it to prison authorities for mailing”). 3 Unlike other pro se filings, this Court dockets pro se notices of appeal. Commonwealth v. Williams, 151 A.3d 621, 624 (Pa.Super. 2016). Therefore, a timely pro se notice of appeal preserves appellate rights, even if the appellant is represented by counsel at the time of the filing. Id.

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Jette, 23 A.3d 1032, 1038-40 (Pa. 2011) (reiterating that “there is no

constitutional right to hybrid representation either at trial or on appeal” and

reaffirming that our Supreme Court’s “long-standing” ban on hybrid

representation is intended to prevent confusion and overburdening of

appellate courts).

Accordingly, we remand to the trial court to conduct a Grazier4

hearing within 30 days of the date of this order to determine whether Jones

wishes to waive his right to counsel and, if so, whether such waiver is

knowing, intelligent, and voluntary. If Jones chooses to proceed pro se, and

the trial court finds he knowingly, intelligently, and voluntarily waived his

right to counsel, the trial court shall inform this Court of the waiver and we

will render a decision based upon the current filings. However, should Jones

choose to be represented by counsel on appeal, the trial court shall direct

counsel to file a statement pursuant to Rule 1925 and the court shall issue a

new Rule 1925(a) opinion within 30 days of receipt of counsel’s Rule 1925

statement.

Case remanded with instructions. Panel jurisdiction retained.

4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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