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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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 Super. 2007) (unpublished memorandum).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.
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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(unpublished memorandum).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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