J-S92023-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HAROLD ALLEN JONES, III
Appellant No. 695 WDA 2016
Appeal from the Judgment of Sentence April 11, 2016
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001582-2014
BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*
JUDGMENT ORDER BY MOULTON, J.: FILED MARCH 28, 2017
Harold A. Jones, III, appeals pro se from his April 11, 2016 judgment
of sentence entered in the Fayette County Court of Common Pleas. We
remand for further proceedings.
On April 6, 2016, Jones pled nolo contendere to possession with intent
to deliver cocaine, possession of a controlled substance, and possession of
drug paraphernalia.1 On April 11, 2016, the trial court sentenced Jones to
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*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. §§ 780-113(a)(30), 780-113(a)(16), and 780-113(a)(32),
respectively. On April 6, 2016, Jones also pled guilty to simple assault at
CP-26-CR-0000975-2015, which is not the subject of this appeal.
J-S92023-16
12 to 24 months’ imprisonment. On May 11, 2016, Jones filed a timely pro
se notice of appeal.2
The trial court ordered Jones to file a Pennsylvania Rule of Appellate
Procedure 1925(b) statement, and Jones filed a pro se statement on May 23,
2016. The trial court notified counsel of the pro se filing, and informed
counsel that if he wished to withdraw, he must file a motion to withdraw.
Counsel did not file a motion or a counseled Rule 1925 statement. On July
11, 2016, the trial court issued a Rule 1925(a) opinion in response to the
pro se Rule 1925(b) statement.
Jones timely filed his notice of appeal and was entitled to counsel on
appeal.3 See Pa.R.Crim.P. 120(A)(4) (“An attorney who has been retained
or appointed by the court shall continue such representation through direct
appeal or until granted leave to withdraw by the court”). The record
contains no motion to withdraw as counsel. Because Jones was represented
by counsel, we cannot consider his pro se filings. See Commonwealth v.
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2
Although the notice of appeal is date-stamped May 13, 2016, the
envelope bears a May 11, 2016 postmark. Therefore, under the prisoner
mailbox rule, Jones’s notice of appeal is timely. See Commonwealth v.
Chambers, 35 A.3d 34, 38 (Pa.Super. 2011) (noting “prisoner mailbox rule
provides that a pro se prisoner’s document is deemed filed on the date he
delivers it to prison authorities for mailing”).
3
Unlike other pro se filings, this Court dockets pro se notices of
appeal. Commonwealth v. Williams, 151 A.3d 621, 624 (Pa.Super.
2016). Therefore, a timely pro se notice of appeal preserves appellate
rights, even if the appellant is represented by counsel at the time of the
filing. Id.
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Jette, 23 A.3d 1032, 1038-40 (Pa. 2011) (reiterating that “there is no
constitutional right to hybrid representation either at trial or on appeal” and
reaffirming that our Supreme Court’s “long-standing” ban on hybrid
representation is intended to prevent confusion and overburdening of
appellate courts).
Accordingly, we remand to the trial court to conduct a Grazier4
hearing within 30 days of the date of this order to determine whether Jones
wishes to waive his right to counsel and, if so, whether such waiver is
knowing, intelligent, and voluntary. If Jones chooses to proceed pro se, and
the trial court finds he knowingly, intelligently, and voluntarily waived his
right to counsel, the trial court shall inform this Court of the waiver and we
will render a decision based upon the current filings. However, should Jones
choose to be represented by counsel on appeal, the trial court shall direct
counsel to file a statement pursuant to Rule 1925 and the court shall issue a
new Rule 1925(a) opinion within 30 days of receipt of counsel’s Rule 1925
statement.
Case remanded with instructions. Panel jurisdiction retained.
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4
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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