J-S73016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               IN THE SUPERIOR COURT
                                                      OF
                                                 PENNSYLVANIA
                      Appellee

                 v.

JOYCE COLE,

                      Appellant                No. 393 WDA 2018


   Appeal from the Judgment of Sentence Entered September 28, 2016
           In the Court of Common Pleas of Washington County
                        Criminal Division at No(s):
                         CP-63-CR-0001171-2016
                             CR 2177 OF 2016
                             CR 1842 OF 2016


COMMONWEALTH OF PENNSYLVANIA,               IN THE SUPERIOR COURT
                                                      OF
                                                 PENNSYLVANIA
                      Appellee

                 v.

JOYCE COLE,

                      Appellant                No. 394 WDA 2018


   Appeal from the Judgment of Sentence Entered September 28, 2016
           In the Court of Common Pleas of Washington County
                        Criminal Division at No(s):
                         CP-63-CR-0001171-2016
                         CP-63-CR-0001842-2016
                         CP-63-CR-0002177-2016


COMMONWEALTH OF PENNSYLVANIA,               IN THE SUPERIOR COURT
                                                      OF
                                                 PENNSYLVANIA
J-S73016-18


                             Appellee

                        v.

    JOYCE COLE,

                             Appellant                No. 395 WDA 2018



      Appeal from the Judgment of Sentence Entered September 28, 2016
              In the Court of Common Pleas of Washington County
              Criminal Division at No(s): CP-63-CR-0002177-2016


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED JANUARY 23, 2019

        Appellant, Joyce Cole, appeals nunc pro tunc from the judgment of

sentence entered after she pled guilty, in three separate cases, to retail theft,

access device fraud, and theft by unlawful taking.1

        The facts of Appellant’s underlying convictions are not necessary to our

disposition of the present appeal. The trial court summarized the procedural

history of Appellant’s case, as follows:

              On September 28, 2016, … []Appellant[] entered into plea
        agreements with the Commonwealth before the Honorable John
        DiSalle regarding certain criminal charges issued against her at
        docket numbers CR-2177-2016, CR-1842-2016, and CR-1171-
        2016. At CR-1171-2016, [] Appellant pled guilty to Retail Theft
        (F-3) and agreed to a sentence of 5 years of probation. At CR-
        1842-2016, [] Appellant pled guilty to Access Device Fraud (M-2)
        and Theft by Unlawful Taking (M-2) and agreed to a sentence of
        2 years of probation [on each count]. Each count was to run
        concurrently to each other and concurrent[ly] to the probationary
____________________________________________


1Appellant’s appeals were sua sponte consolidated by order of this Court filed
on April 12, 2018.

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J-S73016-18


     sentence at CR-1171-2016. Finally, at CR-2177-2016, []
     Appellant pled guilty to Retail Theft (F-3) and agreed to a 5 year
     probation sentence[,] concurrent to all of the afore-mentioned
     [sic] sentences. In addition, [] Appellant pled guilty [at CR-2177-
     2016] to Possession of Paraphernalia (M) and agreed to a
     sentence of 12 months of probation, concurrent to all of the
     above-mentioned sentences. Further, [] Appellant was ordered to
     have a drug and alcohol evaluation, follow through will [sic] all
     recommended treatment, and pay restitution to the victims.

           On January 27, 2017, the Washington County Adult
     Probation Office filed a probation revocation petition. The trial
     court held a revocation hearing on February 10, 2017, at which
     time it found [] Appellant in violation of her September 28, 2016,
     court orders. The trial court re-imposed her probationary
     sentences, required [] Appellant to attend all mental health
     appointments, all drug and alcohol treatment appointments, and
     ordered [] Appellant to refrain from using drugs and alcohol.

            The Washington County Adult Probation Office presented
     the trial court with a second set of probation revocation petitions
     on November 22, 2017. The trial court scheduled a probation
     revocation hearing for December 11, 2017.1 At the hearing, the
     court found [] Appellant in violation of her February 10, 2017 court
     order, revoked her probation, and sentenced her as follows: 1)
     [a]t CR-1171-2016 regarding the charge of Retail Theft (F-1), the
     trial court imposed a sentence of at least 12 months to no more
     than 24 months at a state correctional facility; 2) [a]t CR-2177-
     2016 regarding the charge of Retail Theft (F-3), the trial court
     imposed a 5 year [term] of probation[,] … to run concurrently to
     the sentence at CR-1171-2016;2 and 3) [a]t CR-1842-2016
     regarding the charge of Access Device Fraud (M-2) and Theft by
     Unlawful Taking (M-2), the trial court re-imposed [the] 2[-]year
     … probation sentences for each crime[,] to run concurrently to
     each other and to the sentence at CR-1171-2016. Finally, []
     Appellant was ordered to undergo a mental health assessment and
     follow through with all recommended treatment.
        1 At this juncture, the cases were transferred from Judge
        John DiSalle to Judge Gary Gilman, the author of this
        opinion.
        2The trial court did not impose any sentence regarding the
        Possession of Drug Paraphernalia[,] since the 12[-]month
        probation sentence had expired.


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J-S73016-18


            It is important to note that [] Appellant had been
     represented by counsel at all of the aforementioned proceedings.
     More specifically, [] Appellant applied for representation with the
     Washington County Public Defenders Officer for the December 11,
     2017 revocation hearing. The Public Defender’s Office entered
     [its] appearance on November 30, 2017. Mr. James Jeffries,
     [Esq.,] however, had represented [] Appellant at her September
     28, 2016 sentencing hearing through the conflict counsel
     program. Mr. Jeffries, among others, has a contract with
     Washington County to represent criminal defendants who [are]
     unable to be represented by the Washington County Public
     Defender’s Office due to a conflict of interest. Consequently, Mr.
     Jeffries represented [] Appellant at the December 11, 2017
     revocation hearing.

            On December 30, 2017, [] Appellant drafted an uncounseled
     petition requesting reconsideration of her sentence. This untimely
     petition was filed with the Clerk of Courts on January 5, 2018. On
     January 11, 2018, [] Appellant drafted a petition alleging Mr.
     Jeffries [had been] ineffective. This petition was filed with the
     Clerk of Courts on January 18, 2018. Then, [] Appellant filed a
     second uncounseled petition requesting reconsideration. This
     petition was dated February 7, 2018, and was filed with the Clerk
     of Courts on February 16, 2018.

        The trial court considered the February 7, 2018 petition [as] a
     … petition [under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
     §§ 9541-9546]. On February 15, 2018, the trial court issued an
     order stating that it granted [] Appellant’s [PCRA petition] and
     reinstated her post-sentencing and appellate rights. In response,
     Mr. Jeffries filed a timely notice of appeal on March 16, 2018. The
     Court issued a [Pa.R.A.P.] 1925(b) order on March 22, 2018[,]
     that directed counsel to file a statement within 21 days. At the
     time this opinion was filed with the Clerk of Courts, Mr. Jeffries
     had not yet filed his Concise Statement….

Trial Court Opinion (TCO), 6/1/18, at 1-3 (some footnotes omitted).

     The certified record reveals that Attorney Jeffries never filed a Rule

1925(b) statement on Appellant’s behalf. Typically, we would remand in such

circumstances for the filing of a statement nunc pro tunc.     See Pa.R.A.P.

1925(c)(3). However, we decline to do so in this case, as Attorney Jeffries

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J-S73016-18



has waived any claim(s) Appellant could raise on appeal on other grounds.

First, the appellate brief filed by Attorney Jeffries is completely inadequate.

Specifically, the entirety of counsel’s argument is as follows:

           Undersigned counsel for [] Appellant cannot decipher what
      [] Appellant wishes to be raised on [a]ppeal with regards to
      Argument. [] Appellant will not cooperate with undersigned
      counsel and has ordered the undersigned counsel to put forth an
      appeal without providing any basis for the same. As such,
      undersigned counsel is putting together an argument based upon
      the correspondence written to the undersigned as best as the
      undersigned can understand.

            [] Appellant had a revocation hearing on December 11,
      2017. [] Appellant has instructed the undersigned to indicate that
      she received a twelve (12) to twenty-four (24) month sentence
      on a technical probation violation and [] Appellant wishes to point
      out that there were no new charges. [] Appellant indicates that
      she received a “one year hit” and that her sentence was changed
      from a County Sentence to a State Sentence.

             [] Appellant has further instructed the undersigned counsel
      to argue that she is upset about this revocation because she will
      be seen by the Pennsylvania Parole Board and she is concerned
      that the State Sentence is going to place her in double jeopardy.
      [] Appellant has instructed and ordered the undersigned to raise
      this specific argument in this [brief].

            Additionally, the undersigned has indicated that she filed an
      ineffective assistance of counsel against the undersigned counsel
      and filed a timely Habeas Corpus Petition within ten (10) days,
      which she indicates was December 12, 2017. The undersigned
      counsel cannot find any Petition entitled “PCRA” filed by []
      Appellant. Furthermore, [] Appellant has ordered the undersigned
      counsel to argue in this [b]rief that she was filing her PCRA Pro Se
      and the same was filed with the Clerk of Courts in Washington
      County, Pennsylvania.

             [] Appellant has ordered the undersigned counsel to also put
      forth that she is complaining that the [l]ower [c]ourt was required
      to make a decision within thirty (30) days and as of February 7,
      2018, no decision was made by the [c]ourt.


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J-S73016-18



Appellant’s Brief at 10-11.

      Attorney Jeffries’ nearly incomprehensible discussion, which is absent of

any meaningful argument or citations to legal authority, would waive this

Court’s review of Appellant’s claim(s), even had counsel preserved them for

our review in a timely-filed Rule 1925(b) statement. See Commonwealth

v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (“[I]t is an appellant’s duty

to present arguments that are sufficiently developed for our review. The brief

must support the claims with pertinent discussion, with references to the

record and with citations to legal authorities.   … [W]hen defects in a brief

impede our ability to conduct meaningful appellate review, we may dismiss

the appeal entirely or find certain issues to be waived.”) (citations omitted).

We also point out that, to the extent Appellant seeks to challenge the

discretionary aspects of her sentence, such claim(s) are waived due to

Attorney Jeffries’ failure to file a post-sentence motion or include a Pa.R.A.P.

2119(f) statement in the appellate brief. See Commonwealth v. Bromley,

862 A.2d 598, 603 (Pa. Super. 2004) (“It is well settled that an [a]ppellant’s

challenge to the discretionary aspects of his sentence is waived if the

[a]ppellant has not filed a post-sentence motion challenging the discretionary

aspects with the sentencing court.”) (citation omitted); Commonwealth v.

O’Bidos, 849 A.2d 243, 254 (Pa. Super. 2004) (finding the appellant waived

his discretionary aspects of sentencing claim by not including a Rule 2119(f)

statement in his appellate brief).     Because Attorney Jeffries has waived




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J-S73016-18



Appellant’s claim(s) on multiples grounds, we are compelled to affirm her

judgment of sentence.2

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2019




____________________________________________


2 Appellant may seek relief via the PCRA if she desires to allege that Attorney
Jeffries acted ineffectively in this case.

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