J-S52010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    MICHAEL ANDREW NOLL,

                             Appellant                  No. 47 MDA 2018


              Appeal from the Order Entered November 27, 2017
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0004981-2011


BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED OCTOBER 03, 2018

        Appellant, Michael Andrew Noll, appeals from the trial court’s November

27, 2017 order denying his pro se “Application for Leave to File Post-Sentence

Motions/Appeal Nunc Pro Tunc” (hereinafter, “the motion”). For the reasons

stated infra, we affirm.

        The facts of Appellant’s underlying criminal conviction are not pertinent

to the present appeal. We need only note that on May 17, 2012, Appellant

entered a nolo contendere plea to one count of indecent assault, 18 Pa.C.S. §

3126(a)(1).      That same day, he was sentenced to 164 to 328 days’

incarceration.    Having already served that maximum term, Appellant was




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*   Retired Senior Judge assigned to the Superior Court.
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immediately released from custody. He did not file a post-sentence motion or

a direct appeal.

      On July 12, 2017, Appellant filed the pro se motion underlying the

present appeal. Therein, he alleged (and reiterates on appeal) that the trial

court did not inform him of his appeal rights after he was sentenced, and his

counsel abandoned him by not filing a post-sentence motion or an appeal on

his behalf. Appellant argued that he was deprived of his constitutional right

to a direct appeal, and he requested that his post-sentence motion and direct

appeal rights be reinstated nunc pro tunc. On November 27, 2017, Appellant’s

motion was denied by operation of law.

      Appellant filed a pro se notice of appeal on December 27, 2017.

Although the trial court did not direct him to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal, it issued a Rule 1925(a) opinion

on March 2, 2018. Therein, the court concluded that because Appellant’s trial

counsel had never withdrawn, he was still represented by counsel when he

filed his pro se motion and notice of appeal.        Consequently, the court

determined that neither of those filings should have been docketed (and the

motion should not have been denied by operation of law), as doing so

permitted hybrid representation. See Trial Court Opinion, 3/2/18, at 4, 6.

Accordingly, the court concluded that Appellant’s present appeal should be

quashed.

      Appellant now presents three issues for our review:




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        I.      Are the concerns behind the prohibition of “hybrid
                representation” implicated when a defendant in a criminal
                case finally resorts to self-help after being abandoned by
                non-advocating[,] court-appointed counsel after sentencing
                in order to protect the defendant’s absolute constitutional
                right to appeal?

        II.     Does a defendant in a criminal case waive his or her
                constitutional right to appeal whenever the trial court fails
                to determine on the record that the defendant has been
                properly advised of his or her appeal rights at sentencing
                and court-appointed counsel never consults with the
                defendant about an appeal?

        III.    Did the trial court abuse its discretion in denying []
                Appellant’s application for leave to file post-sentence
                motions/appeal nunc pro tunc without holding an
                evidentiary hearing and without making any findings of fact,
                all of which is necessary to determine whether the failure to
                timely appeal was due to a breakdown in the court system
                or other extraordinary circumstances beyond [] Appellant’s
                control and whether Appellant acted promptly to seek nunc
                pro tunc relief upon learning of the grounds relied upon for
                such relief?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

        We begin by rejecting the trial court’s conclusion that we should quash

this appeal because Appellant was represented by his court-appointed trial

counsel when he filed his pro se motion and notice of appeal, thus constituting

hybrid representation. As stated supra, Appellant did not file a post-sentence

motion or direct appeal following the imposition of his sentence on May 17,

2012.        Thus, his judgment of sentence became final on Monday, June 18,

2012. See Pa.R.A.P. 903(a) (stating that a notice of appeal to Superior Court

must be filed within 30 days after the entry of the order from which the appeal

is taken); 1 Pa.C.S. § 1908 (“Whenever the last day of any … period [of time



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referred to in a statute] shall fall on a Saturday or Sunday … such day shall

be omitted from the computation.”).              Consequently, Appellant’s court-

appointed counsel’s appointment ended on June 18, 2012. See Pa.R.Crim.P.

122(B)(2) (“When counsel is appointed, … the appointment shall be effective

until final judgment, including any proceedings upon direct appeal.”).

Therefore, contrary to the trial court’s position, Appellant was not represented

by court-appointed counsel when he filed the at-issue, pro se motion and

notice of appeal over five years after his judgment of sentence became final.1

       Additionally, the trial court erred by not treating Appellant’s pro se

motion as a petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. This Court has held that “all motions filed after a judgment of

sentence is final are to be construed as PCRA petitions.” Commonwealth v.

Taylor, 65 A.3d 462, 466 (Pa. Super. 2013) (discussing our holding in

Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007)). Here,

Appellant’s pro se motion asserted claims that are clearly cognizable under

the PCRA, i.e., that his right to appeal was obstructed by the court’s failure to

notify him of his appeal rights, and his trial counsel acted ineffectively by

abandoning him on appeal. See 42 Pa.C.S. § 9543(a)(2)(ii), (iv). Therefore,

the trial court should have treated his motion as his first, pro se PCRA petition

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1 In any event, even if Appellant had been represented at that time, his pro
se documents were properly docketed by the York County Clerk of Courts.
See Pa.R.Crim.P. 576; Commonwealth v. Williams, 151 A.3d 621, 624 (Pa.
Super. 2016) (stating that a court is “required to docket a pro se notice of
appeal” even where the defendant/appellant is represented by counsel).

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and appointed him counsel. See Pa.R.Crim.P. 904(C) (“Except as provided

in paragraph (H), when an unrepresented defendant satisfies the judge that

the defendant is unable to afford or otherwise procure counsel, the judge shall

appoint counsel to represent the defendant on the defendant’s first petition

for post-conviction collateral relief.”).

      Notwithstanding the court’s error in this regard, we need not remand

Appellant’s case, nor address the claims he raises herein. Our review of the

record confirms that Appellant has completed serving his sentence of

incarceration for the at-issue offense. Under section 9543, to be eligible for

PCRA relief, a petitioner must demonstrate that he is “currently serving a

sentence of imprisonment, probation or parole for the crime[.]” 42 Pa.C.S. §

9543(a)(1)(i); see also Commonwealth v. Matin, 832 A.2d 1141, 1143 (Pa.

Super. 2003) (“A petitioner is ineligible for relief under the PCRA once the

sentence     for   the    challenged        conviction   is   completed.”)   (citing

Commonwealth v. Ahlborn, 699 A.2d 718 (Pa. 1997)). Additionally,
      [t]his [C]ourt has held that the failure to appoint counsel for a
      petitioner under the PCRA who has served his sentence is
      harmless error, and that a remand for appointment of counsel is
      not appropriate, as a remand would be futile under such a
      circumstance. See Commonwealth v. Auchmuty, 799 A.2d
      823, 826–[]27 (Pa. Super. 2002). The purpose for appointing
      counsel for a first-time petitioner, even where the petition appears
      to be untimely filed, is for the petitioner to attempt to establish an
      exception to the one-year time limitation. Obviously, where the
      petitioner is no longer serving a sentence of imprisonment,
      probation or parole, establishing such an exception is a legal
      impossibility, as the statute no longer applies. The law does not
      require the performance of a futile act. Id. at 827, citing
      Commonwealth v. Myers, 485 Pa. 519, 524, 403 A.2d 85, 87
      (1979).

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Commonwealth v. Hart, 911 A.2d 939, 942 (Pa. Super. 2006).2

       Because here, Appellant completed his sentence years before he filed

his PCRA petition, he is ineligible for relief and remand for the appointment of

counsel is unnecessary.

       Order affirmed.

       Judge McLaughlin joins this memorandum.

       Judge Strassburger files a dissenting memorandum.




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2 The Dissent relies on Commonwealth v. Ramos, 14 A.3d 894 (Pa. Super.
2011), to contend that we must remand for the appointment of counsel in this
case. Notably, the Ramos panel did not acknowledge Hart, and Ramos could
not have overruled Hart’s and Auchmuty’s harmless-error holdings. See
Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013) (reiterating
that one three-judge panel of this Court cannot overrule another three-judge
panel). In any event, Ramos is also distinguishable from Appellant’s case.
Notably, the Dissent omits, from the portion of Ramos that it quotes, a
footnote in which the Ramos panel recognized that “the record before us is
not dispositive of the status of [Ramos’s] sentence.” Ramos, 14 A.3d at
896 n.1 (emphasis added). To the contrary, the record in this case is clear
that Appellant was not sentenced to any “probationary tail.” See N.T.
Plea/Sentencing, 5/17/12, at 3. Moreover, Appellant conceded in his pro se
petition that “he had already served in excess of the maximum term imposed,”
and, thus, he “was released from custody and supervision forthwith.”
Appellant’s Pro Se Petition, 7/12/17, at 1 (citing Sentencing Order, 5/17/12;
N.T. Plea/Sentencing Hearing at 2-3). Later in his pro se petition, Appellant
explicitly acknowledged that he did not meet the ‘currently serving’
requirement of the PCRA, as he had “already served the maximum term at
the time of sentencing….” Id. at 3 n.3. Therefore, unlike in Ramos, the
record in this case is dispositive of the fact that Appellant has completed his
sentence. Consequently, remanding for the appointment of counsel would be
a waste of time and judicial resources.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/03/2018




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