J-S15022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

RUSSELL A. WALLERY,

                         Appellant                 No. 3243 EDA 2014


              Appeal from the PCRA Order of October 22, 2014
           In the Court of Common Pleas of Northampton County
            Criminal Division at No(s): CP-48-CR-0001596-2009


BEFORE: BENDER, P.J.E., OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED MARCH 07, 2016

      Appellant, Russell A. Wallery, appeals from the order entered on

October 22, 2014, dismissing his first petition pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We remand for

the filing of a counseled concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).

      The PCRA court briefly summarized the facts and procedural history of

this case as follows:

        On July 16, 2010, [Appellant] was convicted by a jury of his
        peers [of] one count of rape of a child (18 Pa.C.S.A.
        § 3121(c)); one count of involuntary deviate sexual
        intercourse (18 Pa.C.S.A. § 2123(a)(7)); one count of
        indecent assault (18 Pa.C.S.A. § 3126(a)(7)); and one
        count of corruption of minors (18 Pa.C.S.A. § 6301(a)(1)),
        in connection with allegations of sexual contact with the
        minor daughter of his live-in companion. Subsequent to the
        verdict, [Appellant] was evaluated by a member of the
        Sexual Offender Assessment Board, and on October 14,

*Retired Senior Judge assigned to the Superior Court.
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        2010, a hearing was held … [and, upon] consideration of
        the evidence presented, the [trial] court adjudged
        [Appellant] a sexually violent predator. Thereafter, he was
        sentenced for his crimes to an aggregate term of
        twenty-seven (27) to fifty-four (54) years of imprisonment.

        [Appellant] filed timely post-sentence motions on October
        22, 2010. The [trial] court entered an order denying the
        motions on February 21, 2011.        On March 18, 2011,
        [Appellant] appealed [his judgment of sentence]. [We]
        issued a ruling on June 19, 2012, [affirming Appellant’s]
        convictions on all charges[.] However, [we] vacated and
        remanded the sentence of twelve (12) to twenty-four (24)
        years [of imprisonment] on the charge of involuntary
        deviate sexual intercourse (“IDSI”) for the purpose of
        allowing [the trial] court to place its reasons for the
        aggravated sentence on the record.

        The [trial] court held a resentencing hearing as to the IDSI
        charge on August 17, 2012 at which time the [trial] court
        imposed the same sentence of twelve (12) to twenty-four
        (24) years [of imprisonment] upon [Appellant], stating its
        reasons on the record. On August 27, 2012, [Appellant]
        filed [for reconsideration], which [the trial] court denied by
        an order entered on October 5, 2012.

        On August 14, 2013, [Appellant] filed a pro se petition for
        [PCRA relief]. Upon receipt of the petition, the [PCRA] court
        appointed counsel to represent [Appellant]. Attendant with
        that appointment, counsel sought and obtained certain
        records in furtherance of [Appellant’s] claims, which
        required that the hearing on [Appellant’s] petition be
        continued several times. A hearing was ultimately held on
        June 24, 2014. Contemporaneously with the date of the
        hearing, [Appellant] filed a supplemental PCRA petition
        through counsel for the purpose of more fully setting forth
        the issues raised during the hearing. On October 22, 2014,
        the [PCRA] court denied [Appellant’s] PCRA petition[.]

PCRA Court Opinion, 1/13/2015, at 1-2 (superfluous capitalization omitted).




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       Thereafter, on November 14, 2014, Appellant filed a pro se notice of

appeal, despite still being represented by counsel.1       The trial court docket

indicates that the clerk of courts forwarded a copy of the pro se notice of

appeal to Appellant’s counsel of record.2        Appointed PCRA counsel took no

further action.      Subsequently, on November 20, 2014, the PCRA court

entered an order pursuant to Pa.R.A.P. 1925(b) directing Appellant to file a

concise statement of errors complained of on appeal within 21 days.          The

docket reflects that the PCRA court sent the Rule 1925(b) order directly to

Appellant, but not to appointed counsel. Appellant then filed a pro se Rule

1925(b) statement that was timely under the prisoner mailbox rule. 3         The

docket reflects that appointed counsel did not receive a copy of the pro se

Rule 1925(b) statement.          The PCRA court issued an opinion pursuant to

Pa.R.A.P. 1925(a) on January 13, 2015.
____________________________________________


1
    There is no indication that appointed PCRA counsel ever sought to
withdraw.
2
  As discussed at length infra, our Prothonotary entered a per curiam order
directing the PCRA court to explain Appellant’s representation status,
because while Appellant proceeded pro se, counsel of record had not been
permitted to withdraw. That per curiam order states, “there is no indication
on the docket that the PCRA court forwarded Appellant’s pro se notice of
appeal” to counsel of record. See Order, 6/23/2015, at 1 (unpaginated).
However, upon closer inspection of the PCRA court’s docket, there is a
notation indicating that notice of appeal was sent to counsel.          See
Northhampton County Criminal Docket #CP-48-CR-0001596-2009, at 23.
3
   “Under the prisoner mailbox rule, we deem a pro se document filed on
the date it is placed in the hands of prison authorities for mailing.” See
Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011).



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        On January 20, 2015, our Prothonotary issued a briefing schedule. On

March 2, 2015, April 16, 2015, and June 15, 2015, Appellant submitted pro

se requests for extensions to file his appellate brief.   We granted the first

two extension requests. With regard to the third request, Appellant averred

he may be represented by counsel. Accordingly, our Prothonotary entered a

per curiam order on June 23, 2015, directing the PCRA court to explain the

status of Appellant’s representation within 14 days.      In that per curiam

order, this Court recognized that PCRA counsel was listed as Appellant’s

counsel of record and there was no indication that he received permission to

withdraw.     We further noted, as explained above, that the PCRA court

directed its Pa.R.A.P. 1925(b) statement to Appellant and Appellant

subsequently filed a pro se Rule 1925(b) statement.        Further, while the

PCRA court’s January 2015 Rule 1925(a) opinion states Appellant sought

new appellate counsel, the court accepted the request, and entered a

separate order of court making a new appointment, no such documentation

appears in the certified record. Thus, we ordered the PCRA court to notify

our Prothonotary, in writing, of Appellant’s representation status within 14

days.    Thereafter, pursuant to the order of our Prothonotary, on June 26,

2015, the PCRA court entered an order removing prior PCRA counsel and

appointing Tyree Blair, Esquire, as new counsel for Appellant.     That order

was filed with this Court on July 2, 2015. Subsequently, on November 25,

2015, Attorney Blair filed a brief on behalf of Appellant with this Court,




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presenting   issues      related   solely    to   original    PCRA       counsel’s     alleged

ineffectiveness.

      “Our standard of review of an 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.”

Commonwealth v. Melendez-Negron, 123 A.3d 1087, 1090 (Pa. Super.

2015).

      Here, we conclude the PCRA court erred by accepting Appellant’s pro

se Rule 1925(b) statement while he was still represented by counsel and

compounded its error by issuing a subsequent Rule 1925(a) opinion based

upon the pro se filing. Our Supreme Court recently stated:

         What 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. [See Commonwealth v. Ellis, 626 A.2d 1137
         (Pa. 1993)] (holding there is no right to hybrid
         representation on appeal); cf Commonwealth v. Cooper,
         27 A.3d 994, 1000 (Pa. 2011) (upholding court's decision to
         acknowledge and give force to a pro se filing from a
         counseled defendant where it dovetailed with counsel's
         strategy and where counsel ultimately adopted it)[;] See
         also Pennsylvania Rule of Appellate Procedure 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.”)] The purpose behind the policy is to promote
         efficiency in representation and to avoid conflicting
         strategies in the defense. Id. In the event a represented
         defendant presents a pro se pleading, motion, or filing to
         the court, therefore, the court shall not entertain it but

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         shall, instead, forward it to counsel who may then decide
         whether to act on the defendant's concern. Ellis, supra.

Commonwealth v. Mason, 2015 WL 9485173, at *49 (Pa. 2015) (footnote

incorporated) (emphasis supplied). “Generally, pro se filings by a defendant

who at the time of filing is represented by counsel are considered legal

nullities.”   Commonwealth v. Leatherby, 116 A.3d 73, 86 (Pa. Super.

2015) (citation omitted).          “[Because] [A]ppellant was represented by

counsel on appeal, [] his pro se Rule 1925(b) statement was a legal nullity.”

Commonwealth           v.   Ali,    10    A.3d   282,   293,   (Pa.   2010),   citing

Commonwealth v. Ellis, 626 A.2d 1137, 1139, 1141 (Pa. 1993).

       Here, Appellant was still represented by PCRA counsel at the time he

filed his pro se Rule 1925(b) statement.4 Thus, the pro se filing was a legal

nullity. Accordingly, we are constrained to remand this case and its record
____________________________________________


4
     We also recognize that Appellant was represented by counsel when he
filed his pro se notice of appeal. However, the pro se notice of appeal was
forwarded to PCRA counsel who, in turn, did nothing further. We find,
therefore, the pro se filing does not offend the rule prohibiting hybrid
representation, because PCRA counsel effectively abandoned Appellant. See
Leatherby, 116 A.3d at 79 (“Leatherby was effectively abandoned by
counsel and the trial court failed to timely appoint new counsel, Leatherby's
pro se filing does not offend considerations of hybrid representation.”).
“[An appellant] should not be precluded from appellate review based on
what was, in effect, an administrative breakdown on the part of the trial
court.” Id. Thus, we conclude that Appellant preserved his appellate rights
by filing a pro se notice of appeal, despite his representation. “To conclude
otherwise would result in a miscarriage of justice.” Id., citing Chartiers
Valley Industrial & Commercial Dev. Authority v. City of Pittsburgh,
569 A.2d 405 (Pa. Cmwlth. 1990) (where breakdown in court processes
interferes with post trial proceedings resulting in the expiration of the period
for appeal, justice requires appellate review of the merits so as not to
unjustly penalize appellant for circumstances beyond its control).



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to the PCRA court for the filing of a counseled Rule 1925(b) statement.

Hence, we direct appointed counsel, Tyree Blair, Esquire to file a counseled

Rule 1925(b) statement with the PCRA court within 30 days of the date of

this order.   Once counsel files a new Rule 1925(b) statement, the PCRA

court has 30 days from the date of that filing to issue a Rule 1925(a)

opinion. Thereafter, upon return of the record to this Court, we direct our

Prothonotary to establish a new briefing schedule.

      Case    and   record   remanded   for   filings   consistent   with   this

memorandum. Jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/2016




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