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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
MATTHEW ALLEN LAWTON, :
:
Appellant : No. 1635 WDA 2015
Appeal from the PCRA Order August 27, 2015
In the Court of Common Pleas of Potter County
Criminal Division No(s): CP-53-CR-0000187-2010
BEFORE: BOWES, DUBOW, and MUSMANNO, JJ.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 6, 2016
Appellant, Matthew Allen Lawton, appeals from the August 27,
2015 Order dismissing Appellant’s first petition pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546. We remand for the
filing of a counseled Rule 1925(b) Statement pursuant to Pa.R.A.P. 1925(b).
In a previous appeal, this Court summarized the relevant factual
history as follows:
This appeal stems from an incident that occurred over the July
Fourth holiday in 2010. On July 3, the victim, then 10–years–old,
and her family, visited the home of [Appellant], who was 18–
years–old, and his family. While the parents were on a
motorcycle ride, [Appellant] sexually assaulted the victim. The
victim's younger brother witnessed the assault and tried,
unsuccessfully, to stop it. After the assault, the victim's family
continued their stay with [Appellant’s family] for two more days.
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On July 5, [Appellant] admitted to inappropriately touching the
victim, and the victim's mother called the police, who arrested
[Appellant].
***
On March 1, 2012, a jury trial commenced before the Honorable
Stephen P.B. Minor. On April 2, 3012, the jury found [Appellant]
guilty on all counts. On September 10, 2012, Judge Minor
sentenced [Appellant] to an aggregate term of incarceration of
242 to 480 months.
Commonwealth v. Lawton, No. 1574 WDA 2012, unpublished
memorandum at 1 (Pa. Super. filed Feb. 21, 2014).
On February 21, 2014, this Court affirmed Appellant’s conviction.
On February 20, 2015, Appellant filed a pro se PCRA Petition, which he
amended after the appointment of counsel. Appellant’s counsel filed a
Second Amended PCRA Petition on May 29, 2015. On August 27, 2015, the
PCRA court held a hearing and filed an Order on August 28, 2015, dismissing
the PCRA Petition.
On September 21, 2015, Appellant filed a counseled Notice of Appeal.
On October 8, 2015, Appellant sent a pro se letter to the Pennsylvania
Superior Court Office of the Prothonotary stating, in relevant part, “I am
writing you to in form [sic] you that I am removing my lawyer for [sic] his
duties in my case. Attached to this letter will be the letter I wrote to Jarrett
R Smith notifying him that he is releaved [sic] from being my lawyer.”
Letter, dated 10/8/15.
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On October 15, 2015, the PCRA court entered an Order pursuant to
Pa.R.A.P. 1925 directing Appellant to file a Rule 1925(b) Statement and
stating, “[the PCRA court] notes that it received [Appellant’s] timely notice
of appeal on September 21, 2015 and that [Appellant] has apparently
dismissed his appointed counsel.”1 Order, dated 10/15/15. The trial court
served the Order on Appellant, but failed to serve the Order on Appellant’s
counsel even though counsel had not withdrawn his appearance.
On October 30, 2015, Appellant filed a pro se Rule 1925(b) Statement.
Despite the fact that counsel was still representing Appellant, the docket
reflects that the court did not send a copy of Appellant’s pro se Rule 1925(b)
Statement to counsel. Also on October 30, 2015, Appellant’s counsel filed a
Petition to Withdraw as Counsel.
On November 16, 2015, the PCRA court issued a Rule 1925(a) Opinion
addressing the issues raised in the pro se Rule 1925(b) Statement.
On December 10, 2015, the PCRA court held a Grazier2 hearing to
determine if Appellant’s request to proceed pro se was knowing, voluntary,
and intelligent. On the same day, the PCRA court entered an Order stating,
in relevant part, ”after colloquy with [Appellant] he now expresses a desire
to continue his relationship with Attorney Jarrett Smith. Upon further
discussion, Attorney Jarett Smith and [Appellant] report that they can and
1
The Order was dated October 13, 2015 but filed on October 15, 2015.
2
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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will work together in prosecuting the appeal in this matter. Accordingly,
Attorney Smith’s Petition to Withdraw as Counsel should be denied.” Order,
dated 12/10/15.
On April 4, 2016, Attorney Smith filed a Brief on behalf of Appellant
with this Court, presenting issues that Appellant failed to raise in his pro se
Rule 1925(b) Statement, including:
1. Trial counsel should be deemed ineffective for failing to call
known and named eye witnesses such that [Appellant] did not
receive a fair trial where testimony would have rendered a
different result if the eye witness already known to the defense,
the testimony would have impacted on jury verdict as to prevent
[Appellant] from receiving a fair trial?
2. The weight of the evidence did not support the verdict in lack of
proper medical testimony and obvious factual disputes about the
manner where the events portrayed to the jury created a
physical impossibility?
3. It is reversible error under the Newman case where the jury is
not presented with the mandatory sentencing enhancements as
applied and not determined by the empaneled jury (this author
recognizes the Newman case is not applied retroactively)?
Appellant’s Brief at 7.
“Our standard of review of a trial court order granting or denying relief
under the PCRA requires us to determine whether the decision of the PCRA
court is supported by the evidence of record and is free of legal error. The
PCRA court's findings will not be disturbed unless there is no support for the
findings in the certified record.” Commonwealth v. Perez, 103 A.3d 344,
347 (Pa. Super. 2014) (quotation marks and citation omitted).
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Here, we conclude the PCRA court erred by failing to serve the
1925(b) Order on Appellant’s counsel and accepting Appellant’s pro se Rule
1925(b) Statement while he was still represented by counsel. The PCRA
court exacerbated its error by issuing a subsequent Rule 1925(a) Opinion
based upon the pro se filing.
Our Supreme Court recently stated, “[w]hat our jurisprudence has
consistently prohibited at both trial and appellate levels when strategic
disagreements arise between defendant and counsel is the option of hybrid
representation, where an otherwise represented defendant acts as de facto
co-counsel exercising control over parts of the defense.” Commonwealth
v. Mason, 130 A.3d 601, 671 (Pa. 2015). Our Supreme Court instructs,
“[i]n the event a represented defendant presents a pro se pleading, motion,
or filing to the court, therefore, the court shall not entertain it but shall,
instead, forward it to counsel who may then decide whether to act on the
defendant's concern.” Id. (emphasis added); see also Pa.R.A.P. 3304
(“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.) Moreover, where an appellant is represented by counsel on appeal,
his pro se Rule 1925(b) Statement is a “legal nullity.” Commonwealth v.
Ali, 10 A.3d 282, 293 (Pa. 2010).
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In the instant case, PCRA counsel still represented Appellant at the
time Appellant filed his pro se Rule 1925(b) statement. Thus, the pro se
filing was a legal nullity. Ali, supra. Accordingly, we must remand this
case to the PCRA court for the filing of a counseled Rule 1925(b) Statement.
We direct counsel, Jarett Smith, Esquire, to file a counseled Rule
1925(b) Statement with the PCRA court within thirty (30) days. Once
counsel files a new Rule 1925(b) Statement, the PCRA court is to issue a
Rule 1925(a) Opinion within thirty (30) days. The Rule 1925(a) Opinion
should address the issues raised in the counseled Rule 1925(b) Statement,
and include a factual and procedural history. Upon return of the record to
this Court, we direct our Prothonotary to establish a new briefing schedule.
Case remanded with instructions. Jurisdiction retained.
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