Com. v. Sovann, S.

• Court: Superior Court of Pennsylvania
• Decided: July 23, 2015
• Docket: 1230 EDA 2014
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : SOPHANA SOVANN, : : Appellant : No. 1230 EDA 2014

Appeal from the PCRA Order April 4, 2014, Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-0012793-2008

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and LAZARUS, JJ.

MEMORANDUM BY DONOHUE, J.: FILED JULY 23, 2015

Sophana Sovann (“Sovann”) appeals pro se from the order entered on

April 4, 2014 by the Philadelphia County Court of Common Pleas, Criminal

Division, dismissing his petition filed pursuant to the Post-Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we remand for a

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

determine if Sovann desires to proceed pro se, and if he does not, the

appointment of new counsel.

This case presents a procedural quagmire resulting from the repeated

appointment and disappearance of PCRA counsel. On January 14, 2010, a

jury found Sovann guilty of third-degree murder, criminal conspiracy, and

firearms not to be carried without a license.1 On March 26, 2010, the trial

1 18 Pa.C.S.A. §§ 2502(c), 903(a)(1), 6106(a)(1). J-S33027-15

court sentenced Sovann to a cumulative sentence of thirty to sixty years of

incarceration. On April 26, 2010, Sovann filed a timely counseled notice of

appeal. Subsequently, on September 1, 2010, while represented by

counsel, Sovann filed a pro se PCRA petition and the PCRA court deferred

consideration of that petition pending the outcome of his direct appeal. On

September 14, 2011, the Superior Court of Pennsylvania affirmed Sovann’s

judgment of sentence. On March 27, 2012, the Supreme Court of

Pennsylvania denied his petition for allowance of appeal. In the meantime,

on October 4, 2011, the PCRA court appointed Lee Mandell (“Attorney

Mandell”) to represent Sovann throughout his PCRA proceedings.

On April 5, 2012, following the disposition of Sovann’s direct appeal,

the PCRA court appointed Joseph Scott O’Keefe (“Attorney O’Keefe”) to

represent Sovann. It is unclear from the certified record what happened to

Attorney Mandell. On June 12, 2012, Sovann filed a pro se amended PCRA

petition and on June 22, 2012, Attorney O’Keefe filed a counseled amended

PCRA petition on behalf of Sovann. On July 12, 2012, the PCRA court

permitted Attorney O’Keefe to withdraw, though it is unclear from the record

why the PCRA court permitted Attorney O’Keefe to withdraw. On July 17,

2012, the PCRA court appointed Barnaby Wittels (“Attorney Wittels”) to

represent Sovann.

On July 11, 2013, the Commonwealth filed a motion to dismiss

Sovann’s PCRA petition. On November 8, 2013, the PCRA court issued

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notice pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure

advising Sovann that the PCRA court found his PCRA petition to be without

merit. The PCRA court sent the Rule 907 notice to Attorney Wittels. On

November 25, 2013, Sovann filed a pro se response to the PCRA court’s Rule

907 notice. On April 4, 2014, the PCRA court formally dismissed Sovann’s

PCRA petition. That same day, Sovann, pro se, filed this timely appeal.

Once again, it is unclear what happened to Attorney Wittels and why he did

not file a response to the Rule 907 notice or notice of appeal on behalf of

Sovann. Both Sovann’s and the Commonwealth’s briefs indicate that upon

dismissing Sovann’s PCRA petition, the PCRA court permitted Attorney

Wittels to withdraw. See Sovann’s Brief at 8; Commonwealth’s Brief at 7.

However, based upon our review, there is no indication in the record that

the PCRA court permitted Attorney Wittels to withdraw.

On May 12, 2014, the PCRA court ordered Sovann to file a concise

statement of the errors complained of on appeal pursuant to Rule 1925(b) of

the Pennsylvania Rules of Appellate Procedure. On May 21, 2014, Sovann

filed a pro se Rule 1925(b) statement. On July 1, 2014, after Sovann filed

his pro se notice of appeal and pro se Rule 1925(b) statement, the PCRA

court appointed Todd Michael Mosser (“Attorney Mosser”) to represent

Sovann. On August 29, 2014, following an extension, Attorney Mosser filed

a counseled Rule 1925(b) statement on behalf of Sovann. On December 2,

2014, Sovann filed a pro se brief with this Court on appeal. Yet again, it is

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unclear why Attorney Mosser did not submit either an advocate’s brief on

Sovann’s behalf or a petition to withdraw as counsel because there is no

evidence of record indicating that the PCRA court permitted Attorney Mosser

to withdraw.

This case reflects several missteps on the part of the Philadelphia

County Court of Common Pleas, the several appointed attorneys in this case,

and this Court. First, the PCRA court repeatedly allowed the attorneys who

were representing Sovann to apparently abandon him. The PCRA Court only

granted Attorney O’Keefe formal permission to withdraw. None of Sovann’s

other attorneys received permission to withdraw. A defendant, for a first

PCRA petition, is “entitled to a counseled amended petition and

representation before the PCRA court” as well as counsel on appeal.

Commonwealth v. Figueroa, 29 A.3d 1177, 1182 (Pa. Super. 2011). Rule

904(F)(2) of the Pennsylvania Rules of Criminal Procedure specifically states

that “[w]hen counsel is appointed … the appointment of counsel shall be

effective throughout the post-conviction collateral proceedings, including any

appeal from disposition of the petition for post-conviction collateral relief.”

Pa.R.Crim.P. 904(F)(2). Rule 120(B)(1) further states that “[c]ounsel for a

defendant may not withdraw his or her appearance except by leave of

court.” Pa.R.Crim.P. 120(B)(1).

Second, the record contains several pro se filings in the PCRA court

that Sovann filed at times when he was represented by counsel. “It is well

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established in this Commonwealth that a defendant is not entitled to hybrid

representation.” Commonwealth v. Morgan, 39 A.3d 419, 420 (Pa.

Super. 2012). Rule 576(A)(4) of the Pennsylvania Rules of Criminal

Procedure provides:

(4) In any case in which a defendant is represented by an attorney, if the defendant submits for filing a written motion, notice, or document that has not been signed by the defendant’s attorney, the clerk of courts shall accept it for filing, time stamp it with the date of receipt and make a docket entry reflecting the date of receipt, and place the document in the criminal case file. A copy of the time stamped document shall be forwarded to the defendant’s attorney and the attorney for the Commonwealth within 10 days of receipt.

Pa.R.Crim.P. 576(A)(4).

The Clerk of Courts of Philadelphia County did not fully comply with

the procedure set forth in Rule 576(A)(4) when Sovann filed his pro se

response to the PCRA court’s Rule 907 notice, his pro se notice of appeal, or

his pro se Rule 1925(b) statement. Specifically, while the Clerk of Courts

properly docketed each of those pro se filings, there is no indication that the

Clerk of Courts forwarded them to the counsel of record at the time of the

filings so that they could take action on those documents. This is especially

true in the case of the pro se response to the Rule 907 notice and the pro se

notice of appeal. Attorney Wittels, who was counsel of record when Sovann

filed both documents, did nothing on Sovann’s behalf. Attorney Mosser did

file a counseled Rule 1925(b) statement on Sovann’s behalf, however, the

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record does not reveal whether he received Sovann’s pro se Rule 1925(b)

statement.

Third, because there is no indication that the PCRA court permitted

Attorney Mosser to withdraw from representation, this Court should not have

accepted for filing Sovann’s pro se appellate brief. Rule 3304 of the

Pennsylvania Rules of Appellate Procedure, which governs hybrid

representation, provides that “[w]here 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; see also

Commonwealth v. Jette, 23 A.3d 1032, 1041 (Pa. 2011) (“[W]henever a

defendant is represented by an attorney and the defendant files a pro se

motion with the court, the filing will not be docketed and will be forwarded to

counsel for his consideration.”). Therefore, pursuant to Rule 3304 and

Jette, this Court should have forwarded Sovann’s pro se brief to Attorney

Mosser, which did not occur.

Given the confusion resulting from the misapplication of the rules of

appellate and criminal procedure in this case and the abject failure of

Attorney Mosser to take any action in this Court on behalf of his client, we

remand this case for a Grazier2 hearing, to be held within 30 days of the

2 “When a waiver of the right to counsel is sought at the post-conviction and appellate stages, an on-the-record determination should be made that the

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date of this order, to determine whether Sovann wishes to proceed in this

appeal pro se. We emphasize, however, that because this is Sovann’s first

PCRA petition, he is entitled to counsel. See Figueroa, 29 A.3d at 1182.

We order the PCRA court to immediately inform this Court if Sovann is

allowed to proceed pro se. In that event, we will decide the appeal on the

filed briefs.

If Sovann is to be represented by counsel, we order the PCRA court to

appoint him new counsel. In that event, once appointed, Sovann’s new

counsel must, within thirty days of the date of his or her appointment, file

either an advocate’s brief on Sovann’s behalf or a petition to withdraw and

corresponding 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) if he or she believes there is no merit to Sovann’s

appeal.3 The Commonwealth shall then have thirty days from the date

Sovann’s new counsel files either an advocate’s brief or a petition to

withdraw and no-merit letter to file a response. Additionally, should

Sovann’s new counsel file a petition to withdraw and no-merit letter, Sovann

waiver is a knowing, intelligent, and voluntary one.” Grazier, 713 A.2d at 82. 3 Should new counsel choose to file a petition to withdraw and no-merit letter, we remind him that he must fully comply with the Turner/Finley mandates in order to be permitted to withdraw. See, e.g., Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).

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shall then have thirty days from the date of the filing of those documents to

file his own pro se response.

Case remanded. Panel jurisdiction retained.

Lazarus, J. joins the Memorandum.

Ford Elliott, P.J.E. files a Concurring Memorandum Statement in which

Lazarus, J. joins.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/23/2015

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