Opinion
J-S49022-15 No. 1482 MDA 2014
08-07-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. SHAUN A. BAKER, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence entered May 9, 2014, in the Court of Common Pleas of Luzerne County, Criminal Division, at No(s): CP-40-CR-0000131-2013; CP-40-CR-0000574-2014; CP-40-CR-0001266-2014; CP-40-CR-0002249-2013; CP-40-CR-0002257-2013; CP-40-CR-0003798-2012; CP-40-CR-0004107-2013; CP-40-CR-0004108-2013; CP-40-CR-0004109-2013; CP-40-CR-0004110-2013; CP-40-CR-0004111-2013; CP-40-CR-0004112-2013; CP-40-CR-0004113-2013 & CP-40-CR-0004114-2013 BEFORE: BENDER, P.J.E., ALLEN, and OLSON, JJ. MEMORANDUM BY ALLEN, J.:
Shaun A. Baker ("Appellant") appeals from the judgment of sentence imposed after he pled guilty at fourteen separate docket numbers to one count of providing false identification, one count of possession of drug paraphernalia, one count of receiving stolen property, one count of possession of an instrument of crime, four counts of burglary, two counts of criminal trespass, one count of defiant trespass, one count of theft by unlawful taking, and thirty-four counts of theft from a motor vehicle. Appellant's appointed counsel seeks to withdraw, citing Anders v. California , 386 U.S. 738 (1967) and Commonwealth v. McClendon , 434 A.2d 1185 (Pa. 1981).
18 Pa.C.S.A. § 4914, 35 P.S. § 780-113(a)(32), 18 Pa.C.S.A. § 3925, 18 Pa.C.S.A. § 907, 18 Pa.C.S.A. § 3502, 18 Pa.C.S.A. § 3503, 18 Pa.C.S.A § 3503(b), 18 Pa.C.S.A. § 3921, and 18 Pa.C.S.A. § 3934.
Following Appellant's arrest for the aforementioned crimes, he pled guilty, and on May 9, 2014, the trial court sentenced him to an aggregate term of imprisonment of ninety-three (93) months to one hundred and eighty-six (186) months, followed by two years of probation. Appellant's counsel did not file a post-sentence motion within ten days of the entry of the judgment of sentence. However, on May 19, 2014, Appellant filed a pro se motion to modify sentence, and on May 30, 2014, Appellant's counsel filed a motion to modify sentence referencing Appellant's pro se motion. By order dated June 12, 2014, the trial court denied the motion to modify sentence. Appellant filed a notice of appeal on July 10, 2014. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
The June 12, 2014 order did not specify whether it was Appellant's pro se motion to modify or counsel's motion to modify that was being denied.
Appellant presents one issue for our review:
Whether the consecutive sentences imposed by the Trial Court are harsh and excessive?Anders Brief at 1.
Preliminarily and significantly, we note that Appellant has not perfected his appeal. Appellant's counsel failed to file a timely post-sentence motion within ten days of the judgment of sentence. Counsel's post-sentence motion was filed twenty-one days after the entry of judgment of sentence, on May 30, 2014. Appellant, however, did file a timely pro se post-sentence motion within the ten-day period, on May 19, 2014. Appellant's counsel filed a notice of appeal on July 10, 2014, sixty-two days after the imposition of Appellant's judgment of sentence.
"In order to perfect a timely appeal, a defendant must file a notice of appeal within 30 days of the imposition of his sentence, unless he files a timely post-sentence motion within 10 days of sentencing, thereby tolling that 30-day window. See Pa.R.A.P. § 903; Pa.R.Crim.P. § 720(a)." Commonwealth v. Leatherby , 2015 WL 1788797 (Pa. Super. Apr. 21, 2015). Here, although Appellant filed a pro se post-sentence motion, Appellant was still represented by counsel at the time of his pro se filing. Our courts have made clear that a defendant who is represented by counsel may not engage in hybrid representation by filing pro se documents. See Commonwealth v. Ali , 10 A.3d 282, 293 (Pa. 2010) (where appellant was represented by counsel on appeal, his pro se Rule 1925(b) statement was a "legal nullity"); Commonwealth v. Ellis , 626 A.2d 1137, 1139, 1141 (Pa. 1993) ("[T]here is no constitutional right to hybrid representation either at trial or on appeal. ... A [defendant] may not confuse and overburden the court by his own pro se filings of briefs at the same time his counsel is filing briefs on his behalf.").
Compare Commonwealth v. Leatherby , 2015 WL 1788797 (Pa. Super. April 21, 2015) (where appellant's counsel asked for appointment of new counsel after sentencing, but promised to file a post-sentence motion yet failed to do so, and appellant filed his own timely pro se post-sentence motion to preserve his appellate rights, under the particular circumstances of the case, in which the appellant was effectively abandoned by counsel and the trial court failed to timely appoint new counsel, the appellant's pro se filing did not offend considerations of hybrid representation, and the appellant was not precluded from appellate review based on what was, in effect, an administrative breakdown on the part of the trial court).
Instantly, when Appellant filed his pro se post-sentence motion to modify sentence on May 19, 2014, counsel had not sought to withdraw her appearance, and was still representing Appellant. Thus, the imperative was on Appellant's counsel to file a timely post-sentence motion, and because Appellant was still represented by counsel at the time he filed his pro se post-sentence motion, that pro se filing constituted a legal nullity. Also, although Appellant's counsel eventually filed a post-sentence motion, that motion was untimely because it was filed more than ten days after the entry of Appellant's judgment of sentence. The notice of appeal filed by Appellant's counsel was likewise untimely as it was filed sixty-two days after the imposition of the judgment of sentence, well in excess of the thirty-day requirement.
We recognize that Appellant's counsel, prior to filing her untimely post-sentence motion, had the opportunity to request permission from the trial court to file the post-sentence motion nunc pro tunc, but did not do so. In Commonwealth v. Dreves , 839 A.2d 1122 (Pa. Super. 2003), we explained:
[U]nder 42 Pa.C.S.A. § 5505, if no appeal had been taken, within 30 days after the imposition of sentence, the trial court has the discretion to grant a request to file a post-sentence motion nunc pro tunc.Dreves , 839 A.2d at 1128-29.
***
To be entitled to file a post-sentence motion nunc pro tunc, a defendant must, within 30 days after the imposition of sentence, demonstrate sufficient cause, i.e., reasons that excuse the late filing. Merely designating a motion as "post-sentence motion nunc pro tunc" is not enough. When the defendant has met this burden and has shown sufficient cause, the trial court must then exercise its discretion in deciding whether to permit the defendant to file the post-sentence motion nunc pro tunc. If the trial court chooses to permit a defendant to file a post-sentence motion nunc pro tunc, the court must do so expressly. In employing the above line of reasoning, we find instructive cases dealing with the restoration of direct appeal rights nunc pro tunc. In Commonwealth v. Stock, 545 Pa. 13, 679 A.2d 760, 764 (1996) for instance, our Supreme Court opined that in order for an appeal nunc pro tunc to be granted, the appellant would have to show an extraordinary circumstance wherein a direct appeal by right was lost. Accord, Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638, 643 n. 7 (1998). Similarly, in order for a petition to file a post-sentence motion nunc pro tunc to be
granted, a defendant must, within 30 days after the imposition of sentence, demonstrate an extraordinary circumstance which excuses the tardiness.
If the trial court does not expressly grant nunc pro tunc relief, the time for filing an appeal is neither tolled nor extended. The request for nunc pro tunc relief is separate and distinct from the merits of the underlying post-sentence motion. The trial court's resolution of the merits of the late post-sentence motion is no substitute for an order expressly granting nunc pro tunc relief. Also, when the trial court grants a request to file a post-sentence motion nunc pro tunc, the post-sentence motion filed as a result must be treated as though it were filed within the 10-day period following the imposition of sentence.
Although the trial court in this case arguably ruled on the merits of the untimely post-sentence motion filed by Appellant's counsel on May 30, 2014, see footnote 2 supra (the order did not specify whether it was Appellant's pro se motion to modify or counsel's untimely motion to modify that was being denied) the trial court's order "is no substitute for an order expressly granting nunc pro tunc relief." Dreves , supra.
Based on the foregoing, Appellant has failed to preserve his right to appellate review by filing a timely post-sentence motion and/or a timely notice of appeal. We therefore quash the appeal and deny counsel's petition to withdraw as moot. Our quashal is without prejudice to Appellant to seek post-conviction relief.
Quashal is usually appropriate where the order below was unappealable, the appeal was untimely, or the Court otherwise lacked jurisdiction. Sahutsky v. H.H. Knoebel Sons , 782 A.2d 996, 1001 n. 3 (Pa. 2001) (citations omitted).
Appeal quashed. Petition to withdraw denied as moot. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2015