J-S15004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

PERCY WILLIAMS,

                            Appellant                    No. 552 EDA 2015


            Appeal from the Judgment of Sentence January 23, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0000869-2013


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

MEMORANDUM BY BENDER, P.J.E.:                       FILED FEBRUARY 29, 2016

        Appellant, Percy Williams, appeals from the judgment of sentence of

an aggregate term of 5-10 years’ incarceration, imposed following his

conviction for various gun, drug, and other offenses related to his arrest.

Herein, Appellant contends his plea was involuntary and that his sentence

was unduly harsh and excessive. After careful review, we affirm.

        Appellant, a parolee, was arrested on January 17, 2013, when state

parole agents discovered a loaded firearm, marijuana, and drug distribution

paraphernalia in his home.           While being processed following his arrest,

Appellant assaulted an officer at the Norristown Police Department.

Consequently, Appellant was charged with possession of marijuana, 35 P.S.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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§ 780-113(a)(16); possession with intent to deliver, 35 P.S. § 780-

113(a)(30); possession of drug paraphernalia, 35 P.S. § 780- 113(a)(32);

altering or obliterating a firearm's serial number, 18 Pa.C.S. § 6117(a);

possession of an instrument of a crime, 18 Pa.C.S. § 907(a); simple assault,

18 Pa.C.S. § 2701(a)(1); aggravated assault on a police officer, 18 Pa.C.S. §

2702(a)(3); persons not to possess a firearm, 18 Pa.C.S. § 6105(a)(1); and

disorderly conduct, 18 Pa.C.S. § 5503(a)(1).

      Appellant filed a motion to suppress the seized contraband, as well as

motions seeking disclosure of information related to a confidential informant

(C.I.). On April 2, 2014, a suppression hearing was held. By order dated

May 12, 2014, the suppression motion and the C.I.-related motions were

denied.   Order, 5/12/14, at 10 ¶¶ 14-15.      Subsequently, on January 23,

2015, Appellant entered an open guilty plea to all charges. Appellant signed

a written plea colloquy, N.T., 1/23/15, at 17, and the trial court conducted

an oral colloquy on the record. Id. at 3-18. At the conclusion of the oral

colloquy, the trial court accepted Appellant’s plea, after finding that

Appellant “knowingly, intelligently[,] and voluntarily entered his plea to the

charges….” Id. at 18.

      The trial court then immediately sentenced Appellant to 5-10 years’

incarceration for persons not to possess a firearm. Id. at 27. Appellant also

received concurrent terms of incarceration of 2-10 years, 2-5 years, and 6-

24 months, for, respectively, altering or obliterating a firearm's serial

number, aggravated assault on a police officer, and possession with intent to

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deliver. Id. at 28-29. Thus, Appellant was sentenced to an aggregate term

of 5-10 years’ incarceration. Appellant did not object or raise concerns with

his sentence during the sentencing portion of the January 23, 2015 hearing.

       Appellant did not file any post-sentence motions.              He filed a pro se

notice of appeal, which he dated February 18, 2015 and was post-marked a

day later, but was time-stamped by the Montgomery County Clerk of Courts

on February 25, 2015. At that time, prior counsel, Craig Michael Kellerman,

Esq., had not withdrawn his appearance.             Additionally, Attorney Kellerman

did not file a Criminal Docketing Statement as required by this Court.

Consequently, this Court issued an order remanding this case for the

purpose    of   determining      whether       Attorney   Kellerman    had   abandoned

Appellant. Order, 5/4/15, at 1-2. The trial court held a hearing on June 22,

2015 to investigate, for which Appellant was appointed current counsel, and

at which Attorney Kellerman testified.              The trial court concluded that

Attorney Kellerman had not abandoned Appellant.                  Response to Order,

7/2/15, at 5.

       Current counsel filed a timely Pa.R.A.P. 1925(b) statement on July 16,

2015.1 The trial court issued its second Rule 1925(a) opinion on August 4,

2015.2 Appellant now presents the following claim(s) for our review:



____________________________________________


1
 In Our May 4, 2015 order, we instructed the trial court to permit any newly
appointed counsel to filed a Rule 1925(b) statement “within twenty-one (21)
(Footnote Continued Next Page)


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      Is … Appellant … entitled to a new trial and sentencing hearing
      on the basis that … his open guilty plea was not knowingly,
      voluntarily, and intelligently entered and the trial judge abused
      its discretion when … Appellant was sentenced by the [trial
      c]ourt[?]

Appellant’s Brief, at 3.

      Initially, we must first address whether Appellant’s pro se notice of

appeal was timely, for that matter concerns our jurisdiction. See Pa.R.A.P.

903(c)(3) (“In a criminal case in which no post-sentence motion has been

filed, the notice of appeal shall be filed within 30 days of the imposition of

the judgment of sentence in open court.”); Commonwealth v. Burks, 102

A.3d 497, 500 (Pa. Super. 2014) (“Absent extraordinary circumstances, this

Court has no jurisdiction to entertain an untimely appeal.”).       In this case,

the timeliness of Appellant’s notice of appeal turns on whether or not

Appellant acted pro se when prohibited from doing so.            If Appellant was

permitted to file his notice of appeal pro se, it is immediately apparent that

he is to be afforded the benefit of the prisoner mailbox rule.

      Pursuant to the prisoner mailbox rule, a prisoner's pro se appeal is

deemed filed at the time it is given to prison officials or put in the prison

                       _______________________
(Footnote Continued)

days of the date that the trial court transmits to this Court its findings
regarding the status of appellate counsel.” Order, 5/4/15, at 1.
2
  This opinion supplemented the Rule 1925(a) opinion the trial court had
already filed on March 3, 2015. In that earlier opinion, the trial court
considered Appellant’s pro se notice of appeal a “legal nullity” due to the
prohibition against hybrid representation, ostensibly depriving this Court of
jurisdiction to consider this appeal.



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mailbox.   See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997).

In this case, it is apparent that Appellant’s pro se notice was put in the

prison’s mailbox, or given to prison officials, on or before February 19, 2015,

because that is the date of the postmark on the envelope containing

Appellant’s pro se notice of appeal that was filed with the Montgomery

County Clerk of Courts.    See Commonwealth v. Wilson, 911 A.2d 942,

944 n.2 (Pa. Super. 2006) (accepting, in satisfaction of the prisoner mailbox

rule, the date appearing on a postmark of an envelope containing the pro se

notice of appeal). However, at the time Appellant filed his appeal, Attorney

Kellerman had not yet withdrawn his appearance. Our Supreme Court has

recognized that, while represented by counsel, a defendant’s “pro se actions

have no legal effect while defense counsel remains authorized to represent

him….” Commonwealth v. Piscanio, 608 A.2d 1027, 1029 (Pa. 1992). On

this basis, in its first Rule 1925(a) opinion, the trial court found that

Appellant had failed to perfect his appeal because the trial court considered

his pro se notice of appeal to be a legal nullity.    The trial court did not

reassert this conclusion in its second Rule 1925(a) opinion.

      As noted above, on remand, the trial court determined that Attorney

Kellerman had not abandoned Appellant, because Appellant never asked

Attorney Kellerman to file an appeal on his behalf. However, the court also

found that Attorney Kellerman never anticipated handling an appeal because

Appellant had not paid him for those services.       See Response to Order,

7/2/15, at 4 (“[A]ppellant did not retain Mr. Kellerman to represent him

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beyond the disposition of charges in the above-captioned matter”).       Thus,

for this Court to reject Appellant’s appeal, by denying him the benefit of the

prisoner mailbox rule otherwise afforded to pro se prisoners, we would

essentially be saying that Appellant had an affirmative duty to demand that

Attorney Kellerman file to withdraw his appearance before Appellant filed his

pro se appeal.

      Because we know of no such duty, we refuse to deny Appellant the

benefit of the prisoner mailbox rule. Although Appellant was not abandoned

by counsel, per se, he was effectively unrepresented at the time he filed his

pro se notice of appeal. If the trial court found credible Attorney Kellerman’s

belief that he was not obligated to handle Appellant’s appeal because he was

not paid to do so, we can safely assume that Appellant operated under the

same presumption, as he was the other party to that agreement for legal

services.   Therefore, knowing that Attorney Kellerman was not going to

represent him on appeal, Appellant filed his pro se notice of appeal under

the reasonable belief that he was not represented by counsel when he did

so. Thus, we conclude that Appellant’s pro se notice of appeal was timely by

operation of the prisoner mailbox rule.

      Nevertheless, we conclude that we cannot reach the merits of

Appellant’s claims because they have been waived. Appellant’s first claim is

that the sentence imposed was manifestly excessive.        However, “[i]ssues

challenging the discretionary aspects of a sentence must be raised in a post-

sentence motion or by presenting the claim to the trial court during the

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sentencing proceedings. Absent such efforts, an objection to a discretionary

aspect of a sentence is waived.”          Commonwealth v. Lamonda, 52 A.3d

365, 371 (Pa. Super. 2012) (internal citation and quotation marks omitted).

Appellant does not direct our attention to where in the record his sentencing

claim was preserved, and our own review of the record reveals that

Appellant neither objected during the sentencing portion of his plea hearing,

nor   filed   a   post-sentence       motion     seeking   reconsideration   thereof.

Accordingly, Appellant’s sentencing claim has been waived.3

       Next, Appellant challenges the voluntariness of his guilty plea.           In

order to preserve a claim that a plea was involuntary, a defendant must

“preserve it properly by either objecting during the plea colloquy or filing a

post-sentence motion to withdraw the plea.” Commonwealth v. Lincoln,

72 A.3d 606, 611 (Pa. 2013). Appellant has not directed our attention to

where in the record his claim was preserved. Our own review of the record

shows that Appellant neither objected during the plea colloquy, nor filed a

post-sentence motion seeking to withdraw his plea. Accordingly, Appellant’s

plea-related claim has also been waived.
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3
  Appellant’s sentencing claim has also been waived for another reason:
Appellant failed to file a Pa.R.A.P. 2119(f) statement in his brief. “If a
defendant fails to include an issue in his Rule 2119(f) statement, and the
Commonwealth objects, then the issue is waived and this Court may not
review the claim.” Commonwealth v. Karns, 50 A.3d 158, 166 (Pa.
Super. 2012). Because Appellant did not file a Rule 2119(f) statement, and
because the Commonwealth objects on this basis (see Commonwealth’s
Brief, at 10), we cannot review his sentencing claim.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/29/2016




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