J-S47026-18

                                   2019 PA Super 3

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICHARD A. FILL                            :
                                               :
                       Appellant               :   No. 31 WDA 2018

               Appeal from the Order Entered December 1, 2017
      In the Court of Common Pleas of Warren County Criminal Division at
                        No(s): CP-62-CR-0000018-2017


BEFORE:      OLSON, J., McLAUGHLIN, J., and STRASSBURGER*, J.

OPINION BY McLAUGHLIN, J.:                             FILED JANUARY 4, 2019

        Richard A. Fill timely appeals from the December 1, 2017 order granting

the Commonwealth’s Motion for Reconsideration of Sentencing, reducing Fill’s

credit for time served. Because Fill did not have counsel at the hearing on that

motion, we vacate the order and remand to the trial court for further

proceedings. Fill also challenges his order of restitution, which the trial court

imposed as part of his judgment of sentence. Because he filed this appeal

more than 30 days after the entry of his judgment of sentence, we lack

jurisdiction to entertain this challenge.

        Fill was charged in January 2017, with terroristic threats, simple

assault,1 and other charges. The trial court appointed the Public Defender’s

Office to represent Fill, but in June 2017, counsel filed a Motion to Withdraw

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*    Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2706(a)(3) and 2701(a)(3), respectively.
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Appearance. The motion asserted that Fill was dissatisfied with the services of

the Public Defender and believed there was a conflict of interest because the

Chief Public Defender was acquainted with the District Attorney. The trial court

denied the motion.

      A few weeks later, counsel filed a second motion to withdraw

approximately three weeks later, alleging there was a “personality conflict”

and a “fundamental disagreement . . . regarding trial strategy and all attempts

at reaching a mutually acceptable resolution have been unsuccessful.” Second

Motion to Withdraw Appearance, filed July 12, 2017, at ¶¶ 2-3. Counsel later

supplemented the second motion to withdraw, stating that Fill might not be

eligible for benefits from the Public Defender’s Office because he had received

a bail refund but had not completed a new Public Defender application

indicating his income and assets. Supplemental Motion to Withdraw

Appearance, filed July 21, 2017, at ¶¶ 3-5. That same day, Fill submitted a

completed Public Defender application. The trial court permitted the Public

Defender’s Office to withdraw and, by order entered August 2, 2017,

appointed new counsel, Joan Fairchild, Esq.

      A jury subsequently found Fill guilty of terroristic threats and simple

assault, and on October 27, 2017, the trial court sentenced Fill. For terroristic

threats, the court imposed a sentence of 11½ to 24 months less one day of

incarceration followed by two years of probation and 50 hours of community

service. For simple assault, the court sentenced Fill to 1 year of probation plus




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40 hours of community service, and ordered him to pay $1,030 in restitution.

The court also awarded Fill 286 days credit for time served.

      At sentencing, Fill stated, “[A]t this time, [I am] going to have a third

party individual that I want to retain someone [sic] else [for] the appeal

process from this day forward.” N.T., 10/27/17, at 15. Attorney Fairchild later

filed a Motion to Withdraw as Counsel, stating that Fill “indicated to the Court

of his intention to retain new counsel to represent him in any proceedings

following sentencing.” Motion to Withdraw as Counsel, filed Nov. 2, 2017, at

¶ 3. The trial court granted the motion and allowed counsel to withdraw; it

does not appear that Fill was served with a copy of the order. In any event,

no other lawyer entered an appearance, and the court did not appoint new

counsel or conduct a colloquy to determine whether Fill intended to waive his

right to counsel.

      A few days after the trial court allowed Attorney Fairchild to withdraw,

on November 13, 2017, the Commonwealth filed a Motion for Reconsideration

of Sentence alleging that Fill should have received no credit for time served.

The Commonwealth appears to have believed that Attorney Fairchild was still

representing Fill, as the motion stated, “Defense Counsel, Joan Fairchild, has

[an] objection.” Motion for Reconsideration of Sentence, filed Nov. 13, 2017,

at ¶ 3-5. The copy of the motion in the certified record does not include a

certificate of service.

      Shortly after the Commonwealth filed its Motion for Reconsideration of

Sentence, Fill filed a pro se communication with the trial court stating that

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court-appointed counsel had filed a motion to withdraw and he was waiting

for “new counsel John Shreve” to represent him on appeal. Letter from Fill to

Clerk of Court dated November 19, 2017. Attorney Shreve did not enter his

appearance on Fill’s behalf in this proceeding.

      The     trial   court   held   a   hearing   in   December   2017,    on   the

Commonwealth’s motion to reduce Fill’s credit for time served. Fill was not

represented by counsel at the hearing. The trial court stated, “I note for the

record[] that Miss Fairchild withdrew from this case at what she termed your

request.” N.T., 12/1/17, at 3. Fill replied that he was “still trying to get ahold

of Mr. Shreve,” but was “[n]ot successful at this time.” Id. Fill also stated that

he had not received a copy of the Commonwealth’s motion. Id. As noted

above, the copy of the Commonwealth’s motion in the original record does not

contain a certificate of service, and the Motion stated that Attorney Fairchild

objected to the Motion. The trial court granted the Commonwealth’s motion

and reduced Fill’s credit for time served from 286 days to nine days. Order,

12/1/17.

      Attorney Elizabeth K. Feronti, Esq. then entered her appearance on

behalf of Fill, on January 2, 2018, and filed a Notice of Appeal. Fill raises the

following issues on appeal:

           1. Did the Trial Court err by not affording [Fill] the
           assistance of counsel at the time for Argument on the
           Commonwealth’s untimely Post Sentence Motion that
           resulted in [Fill] losing credit for time served?

           2. Did the Trial Court err by awarding restitution when it was
           unsupported by the record?

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Fill’s Br. at 7.

       We first must address whether we have jurisdiction over Fill’s appeal.

The Commonwealth’s Motion for Reconsideration of Sentence was docketed

on November 13, 2017, more than 10 days after the judgment of sentence.

The Commonwealth should have filed the motion within 10 days after the

imposition     of   sentence.   See   Pa.R.Crim.P.   720(A)(1).   The   apparent

untimeliness of the Commonwealth’s motion draws into question both the trial

court’s authority to rule on the motion and the propriety of Fill’s appeal from

the order granting that motion.

       The Commonwealth asserts in its appellate brief that “[d]ue to a

procedural anomaly,” it delivered its motion to the Judge’s chambers on

November 3, 2017, rather than filing it with the Prothonotary on that date.

Commonwealth Br. at 1. The Commonwealth concedes, however, that the

Prothonotary did not receive the motion for filing until November 13, 2017.

Id. at 2.

       Delivering a motion to a trial judge does not constitute “filing.” Rather,

“[a]ll applications for relief or other documents relating to the following

matters shall be filed in or transferred to the clerk of courts.” 42 Pa.C.S.A. §

2756(a). “If a copy of a motion must be filed with a trial judge, the original

still must be filed with the county clerk of courts in a timely fashion.”

Commonwealth v. Tedesco, 550 A.2d 796, 798 (Pa.Super. 1988). The

Commonwealth admits that its motion was not filed with the Prothonotary

until more than 10 days after sentencing. Further, the copy of the

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Commonwealth’s motion in the certified record does not contain a certificate

of service on Fill, and nothing else in the record suggests that Fill was aware

of the motion. Pa.R.Crim.P. 576(b) (providing that written motions must be

served upon each party and all documents filed in court must include

certificate of service). In sum, the Commonwealth’s Motion to Reconsider the

Sentence was not properly before the lower court. See Commonwealth v.

Crawford, 17 A.3d 1279, 1282 (Pa.Super. 2011).

       However, even though the motion was not timely filed or properly

served, the trial court had jurisdiction to enter the order from which Fill

appeals. A trial court has inherent power to modify a judgment of sentence

sua sponte to reflect the proper amount of credit for time served. See

Commonwealth v. Klein, 781 A.2d 1133, 1134-35 (Pa. 2001) (concluding

trial court had jurisdiction to modify sentence sua sponte to correct credit for

time served while appeal was pending); Commonwealth v. Ellsworth, 97

A.3d 1255, 1257 (Pa.Super. 2014) (holding erroneous credit for time served

was “a patent and obvious mistake that was amenable to correction”).2

       Our jurisdiction over Fill’s appeal from the order reducing his credit for

time served is likewise secure. Fill had 30 days from the entry of that order to

appeal. See Pa.R.A.P. 903(a). The trial court entered the order on December

1, 2017, and 30 days from that date was Sunday, December 31, 2017. As no

filing was possible that day, or the following day, which was New Year’s Day,
____________________________________________


2Because the trial court entered its order more than 30 days after imposition
of sentence, it could act only under its inherent authority. 42 Pa.C.S.A. § 5505.

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Fill had until January 2, 2018, to file an appeal. 1 Pa.C.S.A. § 1908 (excluding

weekends and holidays from the computation of time when the last day of a

time period falls on a weekend or holiday). Fill’s Notice of Appeal, even though

he filed it on the last possible day, January 2, 2018, was timely.

       However, we cannot entertain Fill’s challenge to the imposition of

restitution. The court imposed restitution with Fill’s judgment of sentence, and

the   time   for   Fill   to   appeal ran      from the   entry of the   judgment.

Commonwealth v. Bartley, 576 A.2d 1082, 1083 (Pa.Super. 1990). Absent

exceptions not applicable here, a party waives appellate review of a final order

by failing to file a notice of appeal from that order within 30 days of the order’s

entry. See Pa.R.A.P. 903(a); Koken v. Colonial Assurance Co., 885 A.2d

1078, 1101 (Pa.Cmwlth. 2005), aff’d, 893 A.2d 98 (Pa. 2006).3 Because Fill

did not appeal from his judgment of sentence within 30 days, we lack




____________________________________________


3 Cf. Commonwealth v. Williams, 151 A.3d 621, 625 (Pa.Super. 2016)
(holding issue waived where party failed to raise it in first appeal);
Commonwealth v. Mathis, 463 A.2d 1167, 1169 (Pa.Super. 1983) (holding
claims of trial error, raised on appeal after re-sentencing, were either
previously litigated in first appeal or waived by failure to present them in first
appeal).

      Fill was not counseled when he could have filed a post-sentence motion
or direct appeal, and may be eligible for re-instatement of his post-sentence
motion rights and/or direct appeal rights nunc pro tunc, through a timely Post
Conviction Relief Act petition. See 42 Pa.C.S.A. § 9545(b). We issue no
“holding” regarding the merits of the restitution claim – such as to require the
lower court to consider it – because we do not have jurisdiction to entertain
that claim.

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jurisdiction to consider his challenge to the restitution award, which the trial

court entered as part of his judgment of sentence.

      We now turn to Fill’s claim that the trial court erred by not affording him

the assistance of counsel at the hearing addressing the amount of credit for

time served. The Commonwealth notably does not object to a remand for a

hearing at which Fill would be represented by counsel, and we agree that

remand is necessary.

      Fill   had   a   right   to   counsel   during   the   proceedings   on   the

Commonwealth’s Motion for Reconsideration of Sentence. Those accused of

crimes have a right to the assistance of counsel. U.S. Const. amend. VI; Pa.

Const. art. I, § 9. The right to counsel extends not only to “certain summary

proceedings, at trial, guilty plea hearings, sentencing,” but also to “every

‘critical stage’ of a criminal proceeding.” Commonwealth v. Johnson, 158

A.3d 117, 122 (Pa.Super. 2017) (quoting Commonwealth v. Phillips, 93

A.3d 847, 853 (Pa.Super. 2014)). The proceedings on the Commonwealth’s

motion were a “critical stage” because the trial court would determine whether

it should exercise its inherent authority to modify what was in effect an illegal

judgment of sentence. See Commonwealth v. Beck, 848 A.2d 987, 989

(Pa.Super. 2004) (stating a challenge to credit for time served goes to the

legality of sentence). Akin to a sentencing hearing, those proceedings would

determine the amount of time Fill would remain in prison. Accordingly, Fill had

a right to counsel during the proceedings on the Commonwealth’s Motion for

Reconsideration of Sentence.

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      The trial court nevertheless concludes that Fill forfeited his right to

counsel. The court cites counsel’s pre-trial motions to withdraw and Fill’s

statement at sentencing that he intended to hire new counsel for appellate

purposes. Trial Court Opinion, filed Feb. 21, 2018, at 3-4. We disagree that

Fill’s actions warrant a finding that he forfeited his right to counsel.

      Certainly, the right to counsel “is not absolute.” Commonwealth v.

Lucarelli, 971 A.2d 1173, 1178 (Pa. 2009). A criminal defendant can waive

or forfeit the right to counsel. Id. at 1179-89; see also Pa.R.Crim.P. 121(a).

Whether Appellant forfeited his right to counsel is a question of law over which

our standard of review is de novo and our scope of review is plenary. See

Lucarelli, 971 A.2d at 1178.

      A defendant forfeits the right to counsel through either “extremely

serious misconduct” or “extremely dilatory conduct.” Commonwealth v.

Staton, 120 A.3d 277, 286 (Pa. 2015) (quoting Lucarelli, 971 A.2d at 1179).

For example, in Lucarelli, the defendant failed to retain counsel despite

having more than eight months to prepare for trial and the financial means to

hire a lawyer. He had privately retained counsel on several occasions, but the

trial court allowed counsel to withdraw when the attorney-client relationship

deteriorated. Five weeks before trial, the trial court gave the defendant access

to funds to retain counsel, but he failed to do so by the start of trial and had

no explanation for not having done so. The Supreme Court concluded that the

defendant had engaged in “extremely dilatory conduct” such as to amount to

a forfeiture of his right to counsel. Lucarelli, 971 A.2d at 1180.

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      In another example, in Commonwealth v. Kelly, 5 A.3d 370, 381-82

(Pa.Super. 2010), the defendant was uncooperative with all three lawyers

appointed to represent him and argued that all three were incompetent

because they refused to argue his view of the law. After the trial court allowed

the first lawyer to withdraw, when the defendant could not agree with the

second lawyer, the court delayed trial a second time, appointed new counsel,

and warned the defendant that failure to cooperate with the third lawyer would

result in him proceeding pro se. When the defendant asked the court to

postpone the trial again and to appoint a fourth lawyer, the trial court allowed

the third lawyer to withdraw but refused to appoint further counsel. Id. at

381. Under those circumstances, we had “no difficulty” affirming the trial

court’s conclusion that the defendant had conducted himself so as to forfeit

his right to counsel. Id.

      Fill’s conduct did not rise to the level of the defendants’ actions in

Lucarelli and Kelly. Although Fill’s initial disagreement with the Public

Defender’s Office resulted in the Public Defender’s withdrawing from

representation, Fill did not engage in misbehavior such as would amount to

“extremely serious misconduct” or “extremely dilatory conduct.” In fact, after

the Public Defender withdrew, Fill maintained the same court-appointed

counsel through trial and sentencing. His statement at sentencing that he

would obtain new counsel for an appeal does not change the picture.

Defendants often change counsel when the time comes for an appeal, and

nothing suggests that Fill made the statement to forestall or obstruct the

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proceedings. There is no evidence, for example, that Fill failed to seek private

counsel or delayed in doing so. Indeed, delaying hiring appellate counsel

would be counterproductive, as doing so could easily cause him to miss the

30-day window to file a notice of appeal.

      The record here does not support a conclusion that Fill forfeited counsel.

We therefore vacate the trial court’s December 1, 2017, order and remand for

further proceedings on the Commonwealth’s Motion for Reconsideration of

Sentencing during which Fill is afforded the right to counsel.

      Order     vacated.   Case   remanded    with   instructions.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/4/2019




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