Com. v. Lopez-Torralba, E.

• Court: Superior Court of Pennsylvania
• Decided: October 5, 2021
• Docket: 1378 EDA 2020
• Status: Unpublished

Opinion

J-S12013-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIK LOPEZ-TORRALBA : : Appellant : No. 1378 EDA 2020

Appeal from the PCRA Order Entered June 9, 2020 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0003427-2015

BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 5, 2021

Erik Lopez-Torralba appeals from the order, entered in the Court of

Common Pleas of Montgomery County, dismissing as untimely his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. Upon careful review, we remand the matter to the PCRA court for a

hearing and, if necessary, the preparation of an opinion addressing the issues

raised in Lopez-Torralba’s pro se Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal.

On March 30, 2016, Lopez-Torralba was convicted by a jury of numerous

drug-related offenses and was subsequently sentenced, on August 4, 2016,

to nine to eighteen years’ imprisonment. He appealed to this Court, which

affirmed his judgment of sentence by memorandum decision dated July 3,

2017. See Commonwealth v. Lopez-Torralba, 2769 EDA 2016 (Pa. Super. J-S12013-21

filed July 3, 2017) (unpublished memorandum decision). He did not file a

petition for allowance of appeal to the Supreme Court.

On November 21, 2017, Lopez-Torralba filed a pro se PCRA petition,

raising claims of trial counsel’s ineffectiveness. Counsel was appointed and

filed a Turner/Finley1 no-merit letter. The PCRA court denied relief without

a hearing, and Lopez-Torralba appealed. This Court concluded that, based on

the lack of a record developed in the PCRA court, it was unable to conduct

meaningful review of Lopez-Torralba’s claims. Accordingly, the Court vacated

the order denying PCRA relief and remanded the case to the PCRA court to

conduct an evidentiary hearing on Lopez-Torralba’s ineffectiveness claims and

to render necessary factual findings. See Commonwealth v. Lopez-

Torralba, 2434 EDA 2018 (Pa. Super. filed June 25, 2019) (unpublished

memorandum decision).

Following remand from this Court, by order dated July 2, 2019, the PCRA

court scheduled a hearing, appointed new counsel to represent Lopez-

Torralba, and gave counsel 30 days to advise the court whether an amended

PCRA petition would be filed. On July 31, 2019, court-appointed counsel filed

an amended PCRA petition, raising layered claims of ineffectiveness. The

Commonwealth filed an answer and motion to dismiss on September 9, 2019.

The court convened a hearing on December 9, 2019, at which time appointed

counsel orally moved to withdraw from his representation of Lopez-Torralba ____________________________________________

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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due to irreconcilable differences as to strategy. By order issued that same

day, the PCRA court continued the hearing and granted counsel’s motion to

withdraw. On December 10, 2019, the court appointed new counsel to

represent Lopez-Torralba and rescheduled the evidentiary hearing for January

31, 2020. On January 23, 2020, at the request of Lopez-Torralba’s new

counsel, the court again continued the hearing, until March 3, 2020.

On February 10, 2020, Lopez-Torralba filed a counseled motion for

discovery, seeking transcripts and/or audio recordings from telephone

conversations involving a confidential informant (“CI”), as well as the

disclosure by the Commonwealth of the CI’s identity. The Commonwealth

opposed Lopez-Torralba’s motion. Following the March 3, 2020 hearing, at

which the court orally denied the discovery motion, the PCRA court dismissed

Lopez-Torralba’s amended PCRA petition on June 8, 2020.

On July 14, 2020, the Montgomery County Clerk of Courts docketed a

pro se notice of appeal filed by Lopez-Torralba, who was still represented by

counsel. That same day, the PCRA court issued an order directing Lopez-

Torralba to file a Rule 1925(b) statement. Thereafter, on July 16, 2020,

counsel filed a notice of appeal on Lopez-Torralba’s behalf. Both the pro se

and counseled notices of appeal were facially untimely. On July 30, 2020,

counsel filed a Rule 1925(b) statement. The PCRA court issued a Rule 1925(a)

opinion on September 22, 2020, concluding that (1) Lopez-Torralba’s pro se

notice of appeal was a nullity and (2) counsel’s notice of appeal was untimely.

Accordingly, the PCRA court recommended quashal of the appeal.

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On August 25, 2020, Lopez-Torralba filed with this Court a motion

requesting that his case be remanded to the PCRA court for a Grazier2

hearing, as he wished to represent himself on appeal. On September 28,

2020, this Court issued an order granting Lopez-Torralba’s motion for remand

and directed the PCRA court to convene a hearing to determine whether

Lopez-Torralba’s waiver of counsel was knowing, intelligent and voluntary.

Following a Grazier hearing, on November 3, 2020, the PCRA court issued an

order granting Lopez-Torralba’s request to proceed pro se on appeal and

terminating counsel’s representation.

While Lopez-Torralba’s Grazier hearing was pending, on September 21,

2020, this Court issued a rule to show cause why Lopez-Torralba’s appeal

should not be quashed as untimely filed. On September 29, 2020, counsel

filed a response to the rule to show cause.3 On October 14, 2020—with the

Grazier hearing still pending—Lopez-Torralba filed a pro se response to the

rule to show cause, in which he averred that he deposited his pro se notice of

appeal with prison officials on July 5, 2020. Lopez-Torralba attached to his

response copies of prison cash slips reflecting that fact.

____________________________________________

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

3 In his response, counsel stated that he had attempted to timely e-file the

notice of appeal, but was notified by the clerk, via email dated July 6, 2020, that the filing had been rejected. Due to the Covid-19 judicial emergency, counsel was unable to hand-file the notice of appeal. Accordingly, on July 7, 2020, counsel mailed the document to the clerk of courts, and sent a copy to the PCRA court.

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This case presents us with a procedural quagmire resulting from Lopez-

Torralba’s submission of multiple pro se filings while represented by counsel.

Our Supreme Court has long held that the prohibition against hybrid

representation precludes consideration of pro se filings while a petitioner is

represented by counsel. See Commonwealth v. Jette, 23 A.3d 1032, 1044

(Pa. 2011) (“[T]he proper response to any pro se pleading is to refer the

pleading to counsel, and to take no further action on the pro se pleading unless

counsel forwards a motion.”); see also Commonwealth v. Ellis, 626 A.2d

1137, 1139 (Pa. 1993) (“[T]here is no right to hybrid representation either at

trial or on appeal.”) (citation omitted).

However, pro se notices of appeal are an exception to this rule. Pro se

notices of appeal filed by represented appellants are distinguishable from

other forms of hybrid representation, because they protect the appellants’

right to appeal as set forth in the Pennsylvania Constitution. See S.C.B. v.

J.S.B., 218 A.3d 905, 911 n.4 (Pa. Super. 2019), citing Commonwealth v.

Williams, 151 A.3d 621, 624 (Pa. Super. 2016) (“Because a notice of appeal

protects a constitutional right, it is distinguishable from other filings[.] We

thus hold that this Court is required to docket a pro se notice of appeal despite

Appellant being represented by counsel[.]”). Thus, had Lopez-Torralba’s pro

se notice of appeal been facially timely, our inquiry would end there. However,

our analysis is complicated by the fact that the pro se notice of appeal was

not, in fact, facially timely. Accordingly, as noted above, we issued a rule to

show cause why the appeal should not be quashed. The rule was entered

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after Lopez-Torralba filed his motion for a Grazier hearing, but prior to the

grant of that motion. As such, Lopez-Torralba’s pro se response to the rule

to show cause should technically be deemed a legal nullity, as he filed it during

the time he was still represented by counsel. However, because the PCRA

court subsequently determined that Lopez-Torralba’s decision to proceed

without counsel was knowing, intelligent, and voluntary, we will consider the

merits of his pro se response to the rule to show cause.

As noted above, Lopez-Torralba argues that his notice of appeal was

timely filed pursuant to the prisoner mailbox rule. See Pa.R.A.P. 121(a). Rule

121 provides, in relevant part:

A pro se filing submitted by a prisoner incarcerated in a correctional facility is deemed filed as of the date it is delivered to the prison authorities for purposes of mailing or placed in the institutional mailbox, as evidenced by a properly executed prisoner cash slip or other reasonably verifiable evidence of the date that the prisoner deposited the pro se filing with the prison authorities.

Pa.R.A.P. 121(a). A prisoner bears the burden of proving delivery of the notice

to prison authorities within the prescribed time period for its filing. See

Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997). Reasonable

verifiable evidence for proving timely delivery includes, but is not limited to,

a Postal Form 3817 certificate of mailing or a prison “cash slip” noting a

prisoner account deduction and the date of mailing. Id. “Where . . . the facts

concerning the timeliness [of the filing] are in dispute, a remand for an

evidentiary hearing may be warranted.” Id. at 426 n.3. “Where, however,

the opposing party does not challenge the timeliness of the appeal and the

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prisoner’s assertion of timeliness is plausible, we may find the appeal timely

without remand.” Commonwealth v. Cooper, 710 A.2d 76, 79 (Pa. Super.

1998) (citation omitted).

Here, Lopez-Torralba has submitted, in conjunction with his response to

the rule to show cause, copies of prison cash slips that appear to confirm that

his notice of appeal was timely deposited with prison authorities on July 5,

2020. See Response to Rule to Show Cause, 10/14/20, at Exhibit B.

However, the Commonwealth does not concede the application of the prisoner

mailbox rule and has requested that we remand the case to the PCRA court to

allow the court to “address the implications of the [prisoner] mailbox rule

[and] the merits of [Lopez-Torralba’s] underlying claims.” Brief of Appellee,

at 8. Accordingly, we are constrained to remand this case to the PCRA court,

which shall, within 30 days of the date hereof, make a factual determination

as to the application of the prisoner mailbox rule to Lopez-Torralba’s pro se

notice of appeal. Should the court conclude that the notice of appeal was

timely filed, it shall, within 30 days of that determination, prepare a Pa.R.A.P.

1925(a) opinion addressing the substantive issues raised by Lopez-Torralba

in his pro se Rule 1925(b) statement filed on November 13, 2020.

Case remanded with instructions. Panel jurisdiction retained.

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