Com. v. Rose, R.

• Court: Superior Court of Pennsylvania
• Decided: May 26, 2017
• Docket: Com. v. Rose, R. No. 1447 WDA 2016
• Status: Unpublished

Opinion

J-S21038-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : RAYMOND ROSE, : : Appellant : No. 1447 WDA 2016

Appeal from the Order Entered June 30, 2016 in the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0003092-2004

BEFORE: LAZARUS, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED MAY 26, 2017

Raymond Rose (Appellant) appeals pro se from the June 30, 2016

order which dismissed his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We quash this appeal.

The PCRA court offered the following history of this case.

On December 21, 2014, [Appellant] pled guilty to one count of involuntary deviate sexual intercourse, two counts of indecent assault, two counts of corruption of minors and one count of endangering [the] welfare of children. On March 17, 2005, the Honorable John A. Bozza sentenced [Appellant] to an aggregate of 13 to 32 years of incarceration. No post-sentence motion or direct appeal was filed. On January 5, 2006, [Appellant] timely filed a PCRA motion. PCRA counsel was appointed and a supplemental PCRA motion was filed. On May 18, 2006, the [PCRA] court reinstated [Appellant’s] direct appeal rights. On July 27, 2007, the Superior Court affirmed the judgment of sentence. See Commonwealth v. Rose, 932 A.2d 262 (Pa. Super. 2007) (unpublished memorandum). On September 12, 2007, [Appellant] filed a pro se PCRA petition alleging ineffective assistance of counsel for failure to file a post-

*Retired Senior Judge assigned to the Superior Court. J-S21038-17

sentence motion preserving challenges to the discretionary aspects of the sentence. On November 21, 2007, the PCRA court reinstated [Appellant’s] right to file a post[-]sentence motion and direct appeal nunc pro tunc. [Appellant] timely filed a post-sentence motion raising three discretionary challenges to the sentence. On December 13, 2007, the [PCRA] court denied the post-sentence motion. On January 3, 2008, [Appellant] filed his second nunc pro tunc notice of appeal. On August 15, 2008, the Superior Court affirmed the judgment of sentence. See Commonwealth v. Rose, 961 A.2d 1282 (Pa. Super. 2008) (unpublished memorandum).

On March 29, 2016, [Appellant] filed the instant PCRA motion. Without citing specifics, [Appellant] generally allege[d] the sentence is illegal, and unconstitutional[,] under Montgomery v. Louisiana, 136 S.Ct. 718 (2016)[,] and Alleyne v. U.S., 133 S.Ct. 2151 (2013), and these cases must be given retroactive effect. PCRA counsel was appointed. On May 4, 2016, PCRA counsel filed a “no merit” letter [pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)].

Notice of Intent to Dismiss, 7/1/2016, at 1-2 (footnote and unnecessary

capitalization omitted). By order of May 6, 2016, the PCRA court denied the

petition to withdraw filed by Appellant’s appointed counsel, William

Hathaway, Esquire.

On July 1, 2016, the PCRA court issued a notice of intent to dismiss

the petition as untimely filed. The PCRA court dismissed the petition by

order of August 25, 2016. Appellant pro se timely filed a notice of appeal on

Monday, September 26, 2016. On that same date, he also filed a petition to

reinstate his PCRA petition, which the clerk of courts forwarded to Attorney

Hathaway pursuant to Pa.R.Crim.P. 576(A)(4) (providing that the clerk of

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courts shall accept for filing documents submitted pro se by a represented

defendant and forward copies to the defendant’s attorney). The record does

not indicate that Attorney Hathaway took any further action in the case.

In this Court, Appellant filed a brief pro se claiming that his PCRA

petition satisfied a timeliness exception and that his sentence is illegal.

Appellant’s Brief at 1-5. The Commonwealth did not file a brief. Before we

consider the merits of the appeal, we must determine whether the issues are

properly before us.

Appellant was represented by counsel at the time he filed the notice of

appeal. Generally, such hybrid representation is not allowed, and pro se

filings by represented parties are considered legal nullities. See, e.g.,

Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010) (holding pro se

1925(b) statement filed by an appellant who was represented by counsel on

appeal was a legal nullity). However, our Supreme Court has held that a pro

se notice of appeal from a final judgment filed by a represented appellant is

not automatically void. Commonwealth v. Cooper, 27 A.3d 994, 1007

(Pa. 2011) (holding Superior Court erred in declining to address the merits

of pro se appeal after subsequently-filed counseled appeal was dismissed as

duplicative). Thus, the appeal is properly before us.

The pro se brief, however, is not. Because Attorney Hathaway’s

petition to withdraw was denied in the PCRA court, and he did not obtain this

Court’s leave to withdraw, he remains Appellant’s counsel. See, e.g.,

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Commonwealth v. Smith, 121 A.3d 1049, 1053 (Pa. Super. 2015)

(“[O]nce counsel has entered an appearance on a [petitioner’s] behalf he is

obligated to continue representation until the case is concluded or he is

granted leave by the court to withdraw his appearance.”) (citation and

internal quotation marks omitted)).

Pursuant to our Rules of Appellate procedure and decisional law, this Court will not review the pro se filings of a counseled appellant. Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007) (noting that an appellant’s pro se filings while represented by counsel are legal nullities) [], Commonwealth v. Ellis, [], 626 A.2d 1137, 1140–41 ([Pa.] 1993) (same). Rule 3304 of the Pennsylvania Rules of Appellate procedure provides as follows:

Rule 3304. Hybrid Representation

Where a litigant is represented by an attorney before the Court and the litigant submits for filing a petition, motion, brief or any other type of pleading in the matter, it shall not be docketed but forwarded to counsel of record.

Pa.R.A.P. 3304.

Commonwealth v. Glacken, 32 A.3d 750, 752 (Pa. Super. 2011).

In Glacken, this Court was presented with only a pro se brief from an

appellant whose counsel had not been allowed to withdraw. Further,

Glacken had not waived his right to counsel and requested to proceed pro

se. In that situation, “given the clear language of Rule 3304 and our

Supreme Court’s holding in Ellis that an appellant must either allow his

attorney to represent him or request permission to proceed pro se, we

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[concluded that we were] constrained to quash Glacken’s appeal for lack of a

counseled brief.” Glacken, 32 A.3d at 753.

The relevant facts are indistinguishable in the instant case. Appellant

is still represented by Attorney Hathaway; yet we have only a pro se brief

from Appellant. Thus, under the mandate of Glacken, we must quash this

appeal.1

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/26/2017

1 If Appellant believes that he has been abandoned by his counsel, he may seek to have his right to appeal the dismissal of his PCRA petition restored nunc pro tunc by the filing of a new PCRA petition within 60 days of the conclusion of the instant appeal. See Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007).

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