J-S51001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENNETH JOHN SHAFFER
Appellant No. 2682 EDA 2015
Appeal from the Judgment of Sentence July 7, 2015
In the Court of Common Pleas of Wayne County
Criminal Division at No(s): CP-64-CR-0000042-2006
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 03, 2016
Appellant, Kenneth John Shaffer, appeals from the judgment of
sentence entered in the Wayne County Court of Common Pleas, following his
guilty plea to rape of a child, involuntary deviate sexual intercourse (“IDSI”),
statutory sexual assault, aggravated indecent assault, indecent exposure,
and corruption of minors.1 We remand with instructions.
This Court previously set forth most of the relevant facts and
procedural history of this case as follows:
On May 12, 2006, [Appellant] pled guilty to two counts
each of aggravated indecent assault and corruption of a
minor, and one count each of rape of a child, [IDSI],
____________________________________________
1
18 Pa.C.S.A. §§ 3121(c), 3123(a)(7), 3122.1, 3125(a)(7), 3125(a)(8),
3127(a), 6301(a)(1), respectively.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S51001-16
statutory sexual assault and [indecent exposure]. On
September 11, 2006, the trial court sentenced [Appellant]
to an aggregate sentence of 16 years and 6 months to 45
years in prison. [Appellant] filed a Motion for
reconsideration of sentence, which the trial court denied.
Thereafter, the Commonwealth filed a Petition to Amend
Sentence, averring that there was an error in the
sentencing computation, but that the total sentence
imposed was appropriate. On December 14, 2012, the
trial court entered an Order which clarified that
[Appellant’s] total sentence is 15 years and 6 months to
45 years in prison. Subsequently, on February 28, 2013,
the trial court entered another Order that amended the
December 14, 2012 sentencing Order to read that
[Appellant’s] total sentence is 16 years and 6 months to
45 years in prison.
On July [19], 2013, [Appellant], pro se, filed [a Post
Conviction Relief Act (“PCRA”)2] Petition. The PCRA court
appointed Attorney Collins as counsel. Attorney Collins
filed an amended PCRA Petition on [Appellant’s] behalf
alleging improper sentencing on the rape of a child count.
The PCRA court and the Commonwealth agreed that a
sentencing error was made in relation to the rape of a child
count. Accordingly, the PCRA court vacated the sentence
imposed on that count only. On [March 4], 2014, following
a hearing, the PCRA court resentenced [Appellant] solely
on the rape of a child count to 66 months to 20 years in
prison. Based on this resentencing, [Appellant’s] new total
aggregate sentence was 16 to 45 years in prison.
[Appellant] filed a Motion for reconsideration of sentence,
which the PCRA court denied on March [12], 2014.
Commonwealth v. Shaffer, No. 1085 EDA 2014, unpublished
memorandum at 1-3 (Pa.Super. filed November 26, 2014) (footnotes
omitted).
On November 26, 2014, this Court vacated Appellant’s judgment of
____________________________________________
2
42 Pa.C.S.A. §§ 9541-9546.
-2-
J-S51001-16
sentence in its entirety and remanded for resentencing on all counts. 3 The
trial court resentenced Appellant on July 7, 2015, to consecutive terms of
incarceration of five-and-one-half (5½) to twenty (20) years for rape of a
child, five (5) to ten (10) years for IDSI, one (1) to five (5) years for
statutory sexual assault, two-and-one-half (2½) to five (5) years for
aggravated indecent assault (victim less than 13 years of age), and two (2)
to five (5) years for aggravated indecent assault (victim less than 16 years
of age). The court also imposed concurrent terms of incarceration of three
(3) months to two (2) years for indecent exposure, and six (6) months to
two (2) years for each count of corruption of minors. Thus, Appellant’s
aggregate sentence was sixteen (16) to forty-five (45) years’ incarceration.
Immediately following resentencing, Attorney Collins withdrew and the
court appointed new counsel “for purposes of [Appellant’s] appeal only.”
(See Order, filed July 7, 2015). On July 15, 2015, Appellant filed a pro se
post-sentence motion, which the court denied on August 3, 2015, without
notice to counsel of record. Appellant filed a counseled notice of appeal on
September 1, 2015. The court ordered Appellant to file a concise statement
of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b), with
notice to counsel of record. Appellant filed a pro se Rule 1925(b) statement
____________________________________________
3
This Court explained: “[W]e cannot determine from our review of the
record whether the declared invalidity of the sentence on the rape of a child
count would have affected the trial court’s sentencing on the remaining
counts[.]” Id. at 3.
-3-
J-S51001-16
on October 9, 2015. The court issued its Rule 1925(a) opinion on October
23, 2015, in response to Appellant’s pro se Rule 1925(b) statement.
Counsel filed an amended Rule 1925(b) statement on November 30, 2015.
Appellant raises the following issues for our review:
WHETHER [APPELLANT] WAS DENIED A FAIR SENTENCING
HEARING BY THE COURT’S REFUSAL TO APPOINT AN
EXPERT AND HOLD A HEARING ON [APPELLANT’S] SVP
STATUS WHICH RESULTED IN A LINGERING FAILURE OF
STRUCTURAL DUE PROCESS IN THIS SENTENCING
PROCEEDING.
WHETHER THE SENTENCE IMPOSED ON [APPELLANT] WAS
AN ILLEGAL SENTENCE BY VIRTUE OF THE SENTENCING
COURT’S IMPOSITION OF A MECHANICAL SENTENCE,
RATHER THAN AN INDIVIDUALIZED SENTENCE, MERELY
DESIGNED TO REIMPOSE A PREVIOUSLY IMPOSED
SENTENCE RATHER THAN AS A PRODUCT OF A CAREFUL
WEIGHING OF THE SENTENCING FACTORS IN 42
PA.C.S.A. § 9721, IN VIOLATION OF THE FUNDAMENTAL
NORMS OF THE SENTENCING PROCESS.
WHETHER THE SENTENCE IMPOSED ON [APPELLANT] WAS
ILLEGAL BY VIRTUE OF THE FACT THAT IT VIOLATED DUE
PROCESS AND EQUAL PROTECTION AS THE RECORD
SUPPORTS A PRESUMPTION THAT THE SENTENCE
IMPOSED HEREIN SERVED TO VINDICATE A PRIOR
SENTENCE IMPOSED BY THE COURT AND WAS NOT AN
INDIVIDUALIZED SENTENCE IMPOSED THROUGH REVIEW
AND CONSIDERATION OF THE SENTENCING FACTORS
UNDER 42 PA.C.S.A. § 9721.
(Appellant’s Brief at 4).
As a preliminary matter, “When counsel is appointed, …the
appointment shall be effective until final judgment, including any
proceedings upon direct appeal.” Pa.R.Crim.P. 122(B)(2). See also
Commonwealth v. Corley, 31 A.3d 293 (Pa.Super. 2011) (stating
-4-
J-S51001-16
defendant’s Sixth Amendment right to counsel extends through post-
sentence and direct appeal stages). Further, a defendant has no
constitutional right to self-representation together with counseled
representation (“hybrid representation”) at the trial level or on appeal.
Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137 (1993). “An
accused’s pro se actions have no legal effect while defense counsel remains
authorized to represent the accused in all aspects of the proceedings.”
Commonwealth v. Hall, 476 A.2d 7, 9-10 (Pa.Super. 1984). Pennsylvania
Rule of Criminal Procedure 576 states in relevant part:
Rule 576. Filing and Service by Parties
(A) Filing
* * *
(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) (emphasis added).
Instantly, on July 24, 2013, the court appointed Attorney Collins to
represent Appellant in PCRA proceedings. That appointment remained
effective through Appellant’s resentencing on March 4, 2014, Appellant’s
direct appeal from the judgment of sentence entered on that date, and
-5-
J-S51001-16
Appellant’s most recent resentencing on July 7, 2015. Immediately following
imposition of Appellant’s current sentence, the court granted Attorney
Collins’ request to withdraw. The court simultaneously appointed new
counsel, Joseph McGraw, Esq., but stated the appointment was for purposes
of Appellant’s appeal only. Attorney McGraw did not file any post-sentence
motions on Appellant’s behalf. Appellant, however, filed a pro se motion for
reconsideration of sentence within ten days of imposition of sentence.
Appellant at no point waived his right to counsel for any stage of the
proceedings. Therefore, by the terms of the court’s order, Appellant was
effectively denied his right to counsel during the entire ten-day window he
had to file a timely post-sentence motion. Assuming the court’s
appointment of Attorney McGraw was effective immediately, Appellant’s pro
se motion for reconsideration of sentence would have constituted prohibited
hybrid representation, requiring the clerk of courts to forward the filing to
counsel of record. See Pa.R.Crim.P. 576(A)(4); Hall, supra. Nevertheless,
the court ruled on Appellant’s pro se motion for reconsideration of sentence,
and the certified record contains no indication that the clerk of courts ever
forwarded the motion to Attorney McGraw, pursuant to Rule 576.
Additionally, Attorney McGraw filed a notice of appeal on September 1,
2015. The court issued a Rule 1925(b) order on September 14, 2015, with
notice to counsel of record. While still represented by counsel, Appellant
filed a pro se Rule 1925(b) statement on October 9, 2015. The certified
record does not indicate that the clerk of courts ever forwarded Appellant’s
-6-
J-S51001-16
pro se Rule 1925(b) statement to Attorney McGraw. The court issued its
Rule 1925(a) opinion on October 23, 2015, in response to the issues in
Appellant’s pro se Rule 1925(b) statement. Attorney McGraw subsequently
filed an “amended” Rule 1925(b) statement on November 30, 2015, well
beyond the twenty-one day deadline and apparently without leave of court.
See Pa.R.A.P. 1925(b)(2). These procedural irregularities implicate
Appellant’s fundamental right to counsel and constitute a breakdown in the
court’s operation, which resulted in Appellant’s waiver of any discretionary
aspects of sentencing claims he now raises on appeal. Moreover, the trial
court had no opportunity to address those claims. Under these
circumstances, we conclude the best resolution of this matter is to restore
Appellant to the position he would have occupied, absent these procedural
irregularities. Thus, we remand the case to the trial court for further
proceedings. Within ten (10) days of the filing date of this decision, counsel
shall confer with Appellant and file a post-sentence motion nunc pro tunc
raising any appropriate sentencing claims Appellant wishes to pursue, after
which Appellant can file a nunc pro tunc appeal in due course.4 Accordingly,
we remand with instructions.
Case remanded with instructions. Jurisdiction is relinquished.
____________________________________________
4
The trial court imposed Appellant’s current sentence following remand from
this Court, which directed the trial court to resentence Appellant on all
counts. Therefore, Appellant can raise issues related to and within the scope
of this Court’s previous remand (sentencing only).
-7-
J-S51001-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2016
-8-
Com. v. Shaffer, K.
Combined Opinion