J-S47024-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMAL ABDUL RAHMAN :
:
Appellant : No. 543 MDA 2019
Appeal from the Judgment of Sentence Entered March 5, 2019
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0001760-2018
BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 03, 2019
Appellant Jamal Abdul Rahman appeals from the judgement of sentence
imposed following his guilty plea for knowing and intentional possession of a
controlled substance and possession of drug paraphernalia.1 Appellant
challenges whether he entered a knowing, voluntary, and intelligent plea. For
the reasons that follow, we quash the appeal as premature.
The relevant facts and procedural history are as follows:
On January 16, 2019, [Appellant] entered a guilty plea to
possession of a controlled substance and possession of drug
paraphernalia.[2] The plea was entered pursuant to a [negotiated]
plea agreement which called for all other charges to be nol
prossed, and [Appellant] to receive concurrent sentences of [one]
to [two] years [in a state correctional institution] on both the
possession charge and the drug paraphernalia charge, and the
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1 35 P.S. § 780-113(a)(16) and 35 P.S. § 780-113(a)(32).
2James Conville, Esq., represented Appellant at the plea hearing and remains
counsel of record on appeal.
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sentence in this case was to be served consecutive to the state
sentence he was then serving on another case.
During the guilty plea colloquy, [Appellant] was correctly advised
that the maximum sentences for both the possession charge and
the drug paraphernalia charge were one year each. At the time
of sentencing, the [Commonwealth] correctly pointed out that the
plea agreement called for illegal sentences for both charges, since
the agreed [upon] sentences would have exceeded the statutory
maximum for each charge.[3]
The [Commonwealth] proposed amending the recommended
sentence to [six] to [twelve] months [of imprisonment] on the
possession charge and a concurrent [six] months’ probation on
the drug paraphernalia charge. This sentence was still to be
imposed consecutively to the state sentence he was then serving.
[The trial court] explained to [Appellant] the changes that had
been made to the plea agreement, which resulted in his new
recommended sentence being for less time. [Appellant]
responded, “That’s good news”; and he was sentenced in
accordance with the amended agreement.
On January 28, 2019, [Appellant] filed a pro se motion to modify
sentence in which he asked the [trial c]ourt to modify his sentence
to be served concurrently with his state sentence in the other case
or to direct that this sentence be served in a state institution
rather than the Schuylkill County Prison. In the alternative, he
asked that his sentence be vacated and he be permitted to
withdraw his plea.
[Appellant] was represented by court-appointed counsel at the
time of his plea. When [the trial court] received [Appellant’s pro
se] motion to modify, [the trial court] failed to recognize that his
counsel’s representation was still active, and [the trial court]
entered an order on February 1, 2019, vacating his sentence and
allowing him to withdraw his plea.
On February 26, 2019, [Appellant] filed a pro se petition to vacate
[the trial court’s] order and to reinstate his plea. In that petition
[Appellant] alleged that he had inadvertently included an
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3 The maximum sentence for a first conviction of simple possession or
possession of paraphernalia is one year of imprisonment. 35 P.S. § 780-
113(b), (i).
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alternative request to withdraw his plea and that his original
petition should have been forwarded to his counsel to avoid hybrid
representation. [Appellant] was right that his original motion
should have been forwarded to counsel, and so by order dated
March 5, 2019, [the trial court] reinstated the original sentence.[4]
Counsel was advised of his client’s filings. [The trial court]
anticipated that counsel would file a petition to withdraw the guilty
plea on [Appellant]’s behalf or to modify the sentence, as
[Appellant] was requesting.
Trial Ct. Op., 5/13/19, at 1-3.
On April 3, 2019, Appellant’s counsel simultaneously filed a motion to
modify sentence nunc pro tunc and a notice of appeal to this Court.5 The trial
court denied the motion to modify sentence on April 4, 2019, due to a lack of
jurisdiction. That same day, the trial court ordered Appellant to submit a
Pa.R.A.P. 1925(b) statement. Appellant timely complied and the trial court
filed a Rule 1925(a) opinion. In its opinion, the trial court declined to address
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4 The trial court’s March 5, 2019 order stated:
AND NOW, this 5th day of March, 2019, at 9:10 a.m., the order
dated February 1, 2019, granting [Appellant]’s pro se petition to
withdraw his guilty plea having been improvidently granted in
response to a pro se petition while [Appellant] was represented
by counsel, it is ORDERED that the order of February 1, 2019 is
VACATED and the sentence imposed on January 16, 2019 is
REINSTATED without modifications.
Order, 3/5/19.
5 The post-sentence motion sought relief nunc pro tunc, explaining that
counsel was not immediately aware of the issues surrounding the litigation of
Appellant’s pro se motion.
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the merits of Appellant’s claim, because it did not have an opportunity to
receive testimony regarding the circumstances of the plea. Id. at 3.
Appellant raises the following question for our review:
1. Whether [Appellant] failed to enter a knowing, intelligent and
voluntary plea of guilt when not being informed that [the]
sentence imposed would not aggregate with his current state
sentence he was serving?
Appellant’s Brief at 3 (full capitalization omitted).
Appellant argues that the instant sentence should have aggregated with
his state sentence from another case, such that he would serve the instant
sentence in a state correctional institution. Id. at 10. Appellant concedes
that he intended to plead guilty to the charges. Id. at 8. Appellant contends,
however, that the trial court did not inform him that he would have to serve
the instant sentence in county prison, and he became aware of this fact only
after he received the sentencing order. Id. at 8-9. Appellant insists that he
would not have pled guilty had he known that his sentence was to be served
in county prison. Id. at 9. Based upon the foregoing, Appellant asserts that
he entered an unknowing guilty plea. Id.
Preliminarily, we must evaluate whether we have jurisdiction over this
appeal. “[S]ince the question of appealability implicates the jurisdiction of
this Court, the issue may be raised by this Court sua sponte.”
Commonwealth v. Horn, 172 A.3d 1133, 1135 (Pa. Super. 2017) (citation
and internal alterations omitted). “[T]he final, appealable order for a
defendant’s direct appeal in a criminal case is the judgment of sentence, not
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the conviction.” Commonwealth v. Claffey, 80 A.3d 780, 782-83 (Pa.
Super. 2013) (citation omitted). If a defendant files a timely post-sentence
motion, then the notice of appeal must generally be filed within thirty days of
the entry of the order deciding the motion. Pa.R.Crim.P. 720(A)(2). “No
direct appeal may be taken by a defendant while his or her post-sentence
motion is pending.” Pa.R.Crim.P. 720 cmt. (citation omitted).
“[A] post-sentence motion nunc pro tunc may toll the appeal period, but
only if two conditions are met.” Commonwealth v. Capaldi, 112 A.3d 1242,
1244 (Pa. Super. 2015) (citation omitted).
First, within [thirty] days of imposition of sentence, a defendant
must request the trial court to consider a post-sentence motion
nunc pro tunc. The request for nunc pro tunc relief is separate
and distinct from the merits of the underlying post-sentence
motion. Second, the trial court must expressly permit the filing
of a post-sentence motion nunc pro tunc, also within [thirty] days
of imposition of sentence. If the trial court does not expressly
grant nunc pro tunc relief, the time for filing an appeal is neither
tolled nor extended. Moreover, [t]he 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.
Id. (emphasis in original, citations and quotation marks omitted).
It is well settled that a criminal defendant is not permitted engage in
hybrid representation by submitting pro se filings while represented by
counsel. Commonwealth v. Willis, 29 A.3d 393, 400 (Pa. Super. 2011). A
pro se filing submitted by a counseled defendant is a legal nullity.
Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007). “When
a counseled defendant files a pro se document, it is noted on the docket and
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forwarded to counsel pursuant to Pa.R.Crim.P. 576(A)(4), but no further
action is to be taken.” Commonwealth v. Williams, 151 A.3d 621, 623 (Pa.
Super. 2016).
Instantly, the trial court sentenced Appellant on January 16, 2019.
Appellant had until January 28, 2019 to file a timely post-sentence motion.
See Pa.R.Crim.P. 720(A)(1); see also 1 Pa.C.S. § 1908. Appellant, acting
pro se, submitted a timely post-sentence motion to the trial court. However,
Appellant was still represented by counsel. Accordingly, Appellant’s pro se
filing constituted hybrid representation and was a legal nullity. See Nischan,
982 A.2d at 355.
Initially, the trial court granted Appellant’s pro se motion and scheduled
a hearing on the matter. Prior to the hearing, the trial court discovered that
the pro se filing should have been forwarded to Appellant’s counsel. See
Williams, 151 A.3d at 623. Subsequently, the trial court entered the March
5, 2019 order vacating its prior order and reinstating Appellant’s judgment of
sentence.
In reinstating Appellant’s sentence, the trial court expected Appellant,
through counsel, to file a new post-sentence motion. See Trial Ct. Op. at 3.
However, the trial court’s order did not expressly grant Appellant permission
to submit a post-sentence motion nunc pro tunc. See Capaldi, 112 A.3d at
1244. On April 3, 2019, Appellant’s counsel simultaneously filed a motion to
modify sentence nunc pro tunc and a notice of appeal. Although the trial court
subsequently denied Appellant’s motion to modify sentence nunc pro tunc,
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that order is of no consequence because Appellant’s notice of appeal divested
the trial court of jurisdiction. See generally Pa.R.A.P. 1701.
Significantly, Appellant’s post-sentence motion nunc pro tunc remains
pending. Because the entry of an appropriate order is a prerequisite to this
Court’s exercise of jurisdiction, we conclude Appellant’s notice of appeal was
premature. See Pa.R.Crim.P. 720(A)(2)(a) & cmt.; Claffey, 80 A.3d at 782-
83. Therefore, we are constrained to quash this appeal. Upon remand, the
trial court should consider the merits of Appellant’s motion to modify sentence
nunc pro tunc. See Commonwealth v. Borrero, 692 A.2d 158, 161 (Pa.
Super. 1997) (quashing the appellant’s premature appeal and explaining that
the interests of justice required the trial court to consider the post-sentence
motions on remand, nunc pro tunc).
Appeal quashed. Case remanded for further proceedings consistent with
this decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/03/2019
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