J-S64018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOEL MICHAEL EDDINGS                       :
                                               :
                       Appellant               :   No. 443 WDA 2019

                 Appeal from the Order Entered March 1, 2019
      In the Court of Common Pleas of Fayette County Criminal Division at
                        No(s): CP-26-CR-0002409-2016


BEFORE:      BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED DECEMBER 17, 2019

        Joel Michael Eddings, pro se, appeals from the order, entered in the

Court of Common Pleas of Fayette County, granting, in part, and denying, in

part, his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. Upon review, we remand for further proceedings in

accordance with the dictates of this memorandum.

        The underlying charges in this matter stem from an incident in which

Eddings drove his vehicle carelessly and recklessly while his blood alcohol

concentration (“BAC”) was .02 or greater and his driver’s license was

suspended. It was his fourth conviction for driving under the influence (“DUI”)

within the past ten years. On April 28, 2017, Eddings entered a guilty plea to

seven counts under the Vehicle Code, 75 Pa.C.S.A. §§ 101, et seq. On May
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*   Retired Senior Judge assigned to the Superior Court.
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22, 2017, at the time scheduled for sentencing, Eddings moved to withdraw

his plea. The trial court granted his motion.

       On February 5, 2018, Eddings again entered a guilty plea to multiple

charges.1 The court scheduled sentencing for February 20, 2018, at which

time Eddings again sought to withdraw his plea. This time, the court denied

his request and sentenced him as follows: for DUI, a term of 1 to 5 years’

imprisonment and for driving while operating privilege suspended, a

consecutive term of 90 days’ imprisonment.       The court imposed no further

penalty on the remaining charges.

       Eddings filed a post-sentence motion to modify his sentence, which the

court granted on April 26, 2018. The court modified Eddings’ sentence for

DUI to 6 months’ to 2 years’ imprisonment, with credit for time served. In all

other respects, Eddings’ judgment of sentence remained the same. Eddings

filed a counseled notice of appeal to this Court on May 8, 2018. On June 11,

2018, our Court discontinued the appeal upon praecipe.

       On November 5, 2018, Eddings filed a pro se petition under the PCRA,

in which he claimed abandonment by appellate counsel and ineffectiveness of

plea counsel.      The court appointed counsel, who subsequently moved to

withdraw due to his prior involvement in the matter as an assistant district

attorney. The court granted counsel’s motion and appointed new counsel,
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1  Eddings pled guilty to DUI—general impairment (4th offense), driving while
license suspended/revoked, driving with BAC of .02 or greater while license
suspended, disregard of traffic lanes, careless driving, reckless driving, and
no rear lights.

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James V. Natale, Esquire, who filed an amended petition raising the same

issues Eddings raised in his pro se filing. After a hearing, on March 1, 2019,

the PCRA court granted relief, in part, by reinstating Eddings’ direct appellate

rights, nunc pro tunc. Specifically, the court determined that direct appeal

counsel had withdrawn Eddings’ appeal without Eddings’ consent.              See

Findings of Fact, 3/4/19, at ¶ 6. The court further determined Eddings’ claim

regarding plea counsel’s ineffectiveness to be meritless.

        On March 25, 2019, while still represented by Attorney Natale, Eddings

filed a pro se notice of appeal, referencing the court’s March 1, 2019 order

disposing of his PCRA petition.2 That same day, the court ordered Eddings to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).3 On April 1, 2019, Eddings filed a pro se motion for change

of appointed counsel. In that motion, Eddings averred that he and Attorney

Natale had an “irreconcilable personality conflict . . . and difference of opinion

on the manner and issues in this case” and that he had been unable to contact

counsel, “forcing [Eddings] to proceed with his appeal pro se.” Motion For

Change of Appointed Counsel, 4/1/19, at ¶¶ 3-4. Eddings requested that new

counsel be appointed to represent him on appeal. However, the court never

ruled on that motion.


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2   Eddings served a copy of his notice of appeal upon Attorney Natale.

3   A copy of the order was sent to Attorney Natale.


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        Subsequently, on April 15, 2019, Eddings, again acting pro se, filed a

motion for enlargement of time to file his Rule 1925(b) statement. The court—

certainly aware that Eddings was still represented by Attorney Natale—

granted that motion on April 16, 2019, and directed Eddings to file his Rule

1925(b) statement within 21 days.4             Eddings filed a pro se Rule 1925(b)

statement on May 6, 2019. In his Rule 1925(b) statement, Eddings raised

two claims. The first was a direct appeal claim related to an alleged breach

of his plea bargain by the Commonwealth. The second claim asserted the

ineffectiveness of PCRA counsel in failing to consult with him about appealing

the PCRA court’s order. On May 21, 2019, the court issued its Rule 1925(a)

“Statement in Lieu of Opinion.”           In that statement, the court—believing

Eddings’ appeal to be a direct appeal nunc pro tunc—noted that, “instead of

filing a statement of errors which may have occurred with regard to his plea

and sentencing proceedings, [Eddings] raised errors complained of on appeal

that relate to his PCRA proceedings.”5 Rule 1925(a) Statement, 5/22/19, at

2. Accordingly, the court recommended Eddings’ appeal be dismissed.

        On July 2, 2019, after reviewing the certified record and finding no order

either permitting counsel to withdraw or authorizing Eddings to proceed pro

se, this Court remanded the record to the trial court to conduct a Grazier6
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4   A copy of this order was also mailed to Attorney Natale.

5 This statement by the court was incorrect, as one of the claims Eddings
raised was, in fact, a direct appeal claim.

6   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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hearing to determine if Eddings desired to proceed pro se. On July 22, 2019,

the trial court found that Eddings knowingly, intelligently, and voluntarily

waived his right to counsel and permitted him to proceed pro se on appeal.

       On appeal, Eddings raises the following claims for our review:

       1. Did the trial court commit error when it sentenced [Eddings]
       to 1 to 5 years in state prison, contrary to the 90[-]day “IP”
       agreement that was reached with the Commonwealth?

       2. Did the trial court abuse its discretion when it refused to allow
       [Eddings] to withdraw his plea, and to proceed with a trial, in
       violation of the state and federal constitutions?

Brief of Appellant, at 6, 9 (unnecessary punctuation omitted).

       At the outset, we note that the present case presents an unusual

procedural posture.       As noted above, while still represented by Attorney

Natale, Eddings filed this appeal pro se from the order granting in part and

denying in part his request for PCRA relief.       In his pro se Rule 1925(b)

statement, filed while he was still represented by Attorney Natale, Eddings

raised one direct appeal claim and one claim asserting the ineffectiveness of

PCRA counsel for failing to consult with him about appealing the court’s denial

of PCRA relief.7 In his pro se appellate brief, Eddings raises two direct appeal


____________________________________________


7 Because Eddings was still represented by counsel, his pro se Rule 1925(b)
statement was technically a legal nullity. See Commonwealth v. Ellis, 626
A.2d 1137, 1139, 1141 (Pa. 1993) (“[T]here is no constitutional right to hybrid
representation either at trial or on appeal. . . . [A defendant may not] confuse
and overburden the court by his own pro se filings of briefs at the same time
his counsel is filing briefs on his behalf.”). Nevertheless, the trial court
addressed Eddings’ claims in a Rule 1925(a) “Statement in Lieu of Opinion.”


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claims, one of which he raised in his Rule 1925(b) statement, and one he did

not.

       This Court has stated:

       [O]nce a PCRA court determines that a petitioner’s right to direct
       appeal has been violated, the PCRA court is precluded from
       reaching the merits of other issues raised in the petition. Rather,
       once the PCRA court finds that the petitioner’s appellate rights
       have been abridged, it should grant leave to file a direct appeal
       and end its inquiry there.[8]

Commonwealth v. Harris, 114 A.3d 1, 3–4 (Pa. Super. 2015) (citations and

quotation marks omitted). Where a PCRA court grants a petitioner the right

to seek direct review nunc pro tunc, the petitioner’s sentence is no longer final

and the PCRA court lacks jurisdiction to rule on any other requests for PCRA

relief. Id. at 6.

       Here, because the PCRA court reinstated Eddings’ direct appeal rights,

it erred by proceeding to rule on the merits of Eddings’ ineffective assistance

of counsel claim. See id. This error by the PCRA court appears to have led

to confusion on Eddings’ part. Specifically, because the PCRA court denied his

ineffectiveness claim, Eddings apparently believed the proper course of action

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8 Our Supreme Court has carved out two narrow exceptions to this rule: (1)
extraordinary cases in which the trial court determines that a claim of
ineffectiveness is both meritorious and apparent from the record so that
immediate consideration or relief is warranted, and (2) where “prolix” claims
of ineffectiveness are accompanied by a knowing, voluntary, and express
waiver of PCRA review. Commonwealth v. Holmes, 79 A.3d 562, 577-78
(Pa. 2013). Neither of those exceptions applies here.




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was to appeal from the PCRA order. However, although Eddings’ notice of

appeal references the date of the PCRA order, his brief makes clear his intent

to appeal his judgment of sentence, nunc pro tunc.9 In short, Eddings is left

in a “Catch-22” situation in which he has appealed a ruling that the PCRA court

lacked jurisdiction to make, Harris, supra, and, in doing so, forfeited his

direct appeal nunc pro tunc. See Commonwealth v. Wright, 846 A.2d 730,

734 (Pa. Super. 2004) (“When the trial court issues an order reinstating an

appellant’s appeal rights, the appellant must file the appeal within 30 days of

the order reinstating the appeal rights.”).

       Additionally, although the trial court ultimately determined that Eddings

knowingly, intelligently, and voluntarily desired to proceed pro se, it did so

only after Eddings filed a pro se notice of appeal of his PCRA order, a pro se

motion for the appointment of new counsel (which the court never acted on),

and a pro se Rule 1925(b) statement in which he alleged that PCRA counsel

had abandoned him on appeal.              The fact that Eddings both sought the

appointment of new counsel and raised PCRA counsel’s alleged abandonment

in his Rule 1925(b) statement clearly indicates that, at least at that point in

the proceedings, he did not wish to proceed pro se.


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9 In his “statement of the order in question,” Eddings states: “This is an appeal
that was granted nunc pro tunc, by the Court of Common Pleas, Fayette
County[.]” Brief of Appellant, at 4. In his “statement of the case,” Eddings
states: “[A]ppellant filed a PCRA [petition] and after a hearing, appellant’s
rights to a direct appeal were reinstated nunc pro tunc. Said appeal[] is now
being presented to this Court of review[.]” Id. at 5.

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      Where counsel’s conduct has adversely affected the right to appeal,

courts have granted an appeal nunc pro tunc on the basis that the defendant’s

right to appeal has been denied. Commonwealth v. Bronaugh, 532 670

A.2d 147, 151 (Pa. Super. 1996) (“If appellant did not waive his right to appeal

and requested prior counsel to file a direct appeal but counsel failed to follow

such a request, he was deprived of his constitutional right to a direct appeal

and is entitled to such appeal nunc pro tunc.”).              Moreover, where

circumstances such as ineffectiveness of counsel, fraud, or a breakdown in the

court’s operations are present, reinstatement of appellate rights, nunc pro

tunc, is appropriate. See Commonwealth v. Stock, 679 A.2d 760, 762 (Pa.

1996).

      Here, it is apparent from the face of the record that counsel abandoned

Eddings on his direct appeal nunc pro tunc.      Having successfully obtained

reinstatement of Eddings’ direct appeal rights, Attorney Natale neither filed an

appropriate notice of appeal, nor moved to withdraw his representation. This

would appear, on its face, to constitute ineffectiveness, per se.          See

Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999) (unjustified failure

to file requested direct appeal constitutes ineffectiveness, per se).

      Moreover, the trial court, presented with a request for the appointment

of new counsel, failed to act and, instead, continued to act on Eddings’ pro se

filings despite the fact that Attorney Natale remained his counsel of record.

In light of these circumstances, we conclude that the proper course of action

is to remand this matter to the trial court. Upon remand, the court is directed

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to enter an order again reinstating Eddings’ direct appellate rights, nunc pro

tunc. The court shall also make a determination as to whether Eddings wishes

to proceed with his nunc pro tunc appeal pro se or with counsel. If the court

determines that Eddings desires representation, the court shall enter an order

appointing counsel.

      Case remanded with instructions. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/17/2019




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