Com. v. Mikelonis, R.

Opinion

J-S55027-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RAYMOND A. MIKELONIS, SR. : : Appellant : No. 441 WDA 2019

Appeal from the PCRA Order Entered December 27, 2018 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000755-2011

BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 26, 2019

Raymond A. Mikelonis, Sr. appeals from the denial of his request for

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

9546. We remand for the PCRA court to determine the status of PCRA counsel.

Mikelonis filed a pro se timely PCRA petition alleging ineffective

assistance of trial counsel. See PCRA Petition, filed 4/27/15, at 3. The PCRA

court appointed Patrick Lavelle, Esquire, as PCRA counsel, and he filed a

Turner/Finley letter and a petition to withdraw as counsel.1 The PCRA court

on February 3, 2016 issued a notice of intent to dismiss the petition without a

hearing. See Notice of Intent to Dismiss, filed 2/3/16, at ¶2; Pa.R.Crim.P. ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). J-S55027-19

907.2 While the PCRA petition was still pending, Mikelonis filed a pro se petition

labeled, “Petitioner Raymond Mikelonis Sr.’s Petition for State Habeas Corpus”

(“habeas petition”). See Habeas Petition, filed 5/7/18; PCRA Ct. Op. (“PCO”),

filed 4/16/19, at 6. The PCRA court denied both the PCRA petition and the

habeas petition in December 2018, without ruling on PCRA counsel’s petition

to withdraw. Mikelonis then appealed to this Court, pro se.

The docket reflects this Court received Mikelonis’s notice of appeal on

March 25, 2019, beyond the 30 day deadline to appeal to this Court. We issued

a rule to show cause why the appeal should not be dismissed as untimely.

Mikelonis responded that “pursuant [to] the prison mailbox rule, [he] filed

with the Clearfield County Clerk of Court’s[,]” his notice of appeal on January

6, 2019. Response to Rule to Show Cause, filed 5/3/19. He stated “that the

delay is a breakdown with the Clerk of Court of Clearfield County,” because

on March 27, 2019, he received a print out of his criminal docket from the

clerk of courts with a handwritten note that read “nothing will be done with

your appeal until the judge either grants or denies your [in forma pauperis

(“IFP”)].” Id. at 2 (unpaginated). Mikelonis also included a cash slip for his

filed notice of appeal, dated January 6, 2019. We discharged the rule to show

cause, leaving it to the panel to readdress the issue. Order, filed 5/13/19.

____________________________________________

2 The PCRA court maintains that it denied the PCRA petition on February 3, 2016. See PCRA Court Op., filed 4/16/19 at 4. However, neither the certified record nor the docket contains an order denying the PCRA petition on that date.

-2- J-S55027-19

Upon review of the certified record, we conclude that this appeal is

timely pursuant to the prisoner mailbox rule. See Commonwealth v. Jones,

700 A.2d 423, 426 (Pa. 1997). We also note that the contention of the clerk

of courts that it was not required to docket Mikelonis’ notice of appeal until

the trial court ruled on his IFP, was in error. See Pa.R.A.P. 905(a)(3) (“Upon

receipt of the notice of appeal the clerk shall immediately stamp it with the

date of receipt, and that date shall constitute the date when the appeal was

taken, which date shall be shown on the docket”); Commonwealth v.

Williams, 106 A.3d 583, 588 (Pa. 2016) (“The use of the word ‘shall’ in Rule

905(a)(3) leaves the lower court clerk no discretion in its application of the

rule”). Thus, we conclude that Mikelonis timely filed his notice of appeal on

January 6, 2019. See Smith v. Pennsylvania Board of Probation and

Parole, 683 A.2d 278, 282 (Pa. 1996) (concluding cash slip is acceptable

evidence of whether appellant mailed “his petition for review within the thirty

day filing period”).

However, we do not address the merits of this case at this time because

Mikelonis filed a pro se brief to this Court, even though PCRA counsel has not

withdrawn his appearance. See Docket, Commonwealth v. Mikelonis, CP-

17-CR-0000755-2011, at 15. Thus, it appears that his brief to this Court may

be a case of hybrid representation, which is not permitted. See

Commonwealth v. Williams, 151 A.3d 621, 623 (Pa.Super. 2016). Hybrid

representation exists where there is “self-representation together with

-3- J-S55027-19

counseled representation.” Commonwealth v. Ellis, 626 A.2d 1137, 1138

(Pa. 1993).

As there is no indication in the certified record that the PCRA court

formally allowed Attorney Lavelle to withdraw as counsel, we remand this case

for the PCRA court to advise this Court of the status of Attorney Lavelle in this

case within 30 days of the date of this Memorandum. See Commonwealth

v. Ford, 44 A.3d 1190, 1198 n.4 (Pa.Super. 2012) (“If the PCRA court allows

counsel to withdraw when the court issues its notice of intent to dismiss, then

there are no issues regarding hybrid representation.”). If the PCRA court

determines that Attorney Lavelle continues to represent Mikelonis in this

matter, counsel shall file a brief in this Court within 30 days of the PCRA court’s

rendering that determination.

Case remanded with instructions. Jurisdiction retained.

-4-