J-S47007-16

                             2016 PA Super 262

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
     Appellee

                   v.

HENRY L. WILLIAMS,

     Appellant                                      No. 2078 MDA 2015


         Appeal from the Judgment of Sentence October 16, 2015
            In the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0001747-2010


BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ.

OPINION BY SHOGAN, J.:                         FILED NOVEMBER 23, 2016

     Appellant, Henry L. Williams, appeals from the judgment of sentence

entered on October 16, 2015. For the reasons that follow, we affirm.1

     On April 19, 2011, Appellant was found guilty by a jury of corrupt

organizations, criminal conspiracy, criminal use of a communication facility,

and four counts of possession with intent to deliver a controlled substance.

On August 4, 2011, Appellant was sentenced to an aggregate term of eleven

to twenty-two years of incarceration.     The sentence included mandatory

minimum sentences based on the weight of the controlled substances

pursuant to 18 Pa.C.S. § 7508. Appellant filed a direct appeal to this Court,


1
   This appeal was quashed on August 1, 2016, because Appellant’s
counseled notice of appeal was untimely, and Appellant’s pro se notice of
appeal, while timely, was initially considered a nullity as hybrid
representation. Reconsideration was granted on September 28, 2016, to
allow this Court to address the effect of Appellant’s pro se notice of appeal.
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and   we   affirmed   the   judgment    of   sentence   on   May   8,   2013.

Commonwealth v. Williams, 1399 MDA 2011, 81 A.3d 993 (Pa. Super.

filed May 8, 2013), appeal denied, 80 A.3d 777 (Pa. filed November 19,

2013).

      While Appellant’s direct appeal was pending, the United States

Supreme Court decided Alleyne v. United States, 133 S.Ct. 2151 (2013).

In Alleyne, the Supreme Court held, “Any fact that, by law, increases the

penalty for a crime is an ‘element’ that must be submitted to the jury and

found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at 2155. In applying

Alleyne, this Court has held that, generally, Pennsylvania’s mandatory

minimum sentencing statutes are unconstitutional because the mandatory

sentencing statutes “permit[] the trial court, as opposed to the jury, to

increase a defendant’s minimum sentence based upon a preponderance of

the evidence” standard. Commonwealth v. Newman, 99 A.3d 86, 98 (Pa.

Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015); and see

Commonwealth v. Vargas, 108 A.3d 858, 876-877 (Pa. Super. 2014) (en

banc) (holding 18 Pa.C.S. § 7508 unconstitutional under Alleyne), appeal

denied, 121 A.3d 496 (Pa. 2015).       Additionally, this Court has concluded

that if a defendant’s case was pending on direct appeal when Alleyne was

decided, that defendant was entitled to retroactive application of the holding

from Alleyne. Newman, 99 A.3d at 90.




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     Appellant filed a timely petition for collateral relief pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.             In light of

Alleyne and the Pennsylvania cases interpreting that decision, the PCRA

court granted Appellant’s PCRA petition, vacated his judgment of sentence,

and directed Appellant to be resentenced.         PCRA Order, 9/16/15.        On

October 16, 2015, the trial court resentenced Appellant.

     Following resentencing, Appellant filed a timely counseled post-

sentence motion on October 26, 2015. The trial court denied the motion in

an order that was filed on October 29, 2015. Appellant had until November

28, 2015, thirty days from October 29, 2015, in which to file a timely

appeal. Pa.R.A.P. 903; Pa.R.Crim.P. Rule 720(A)(2)(a). However, because

November 28, 2015 fell on a Saturday, Appellant had until Monday,

November 30, 2015, to file his notice of appeal. 1 Pa.C.S. § 1908.

     The docket reflects that Appellant filed a pro se notice of appeal on

November 19, 2015.     Because Appellant was represented by counsel, the

notice of appeal was docketed in the trial court and forwarded to counsel on

November 25, 2015 pursuant to Pa.R.Crim.P. 576(A)(4). The pro se notice

of appeal was not forwarded to this Court. Appellant’s counsel subsequently

filed an untimely notice of appeal on December 1, 2015.

     In this Commonwealth, hybrid representation is not permitted.          See

Commonwealth v. Jette, 23 A.3d 1032, 1036 (Pa. 2011) (concluding that

a petitioner’s pro se motion for remand when that petitioner is represented



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by counsel is impermissible as hybrid representation).       Accordingly, this

Court will not accept a pro se motion while an appellant is represented by

counsel; indeed, pro se motions have no legal effect and, therefore, are legal

nullities. See Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super.

2007) (discussing a pro se post-sentence motion filed by a petitioner who

had counsel).   When a counseled defendant files a pro se document, it is

noted on the docket and forwarded to counsel pursuant to Pa.R.Crim.P.

576(A)(4), but no further action is to be taken. Moreover, a pro se filing has

no tolling effect.   See Pa.R.Crim.P. 576 cmt. (“The requirement that the

clerk time stamp and make docket entries of the filings in these cases only

serves to provide a record of the filing, and does not trigger any deadline

nor require any response.”).

      We point out, however, that Superior Court Internal Operating

Procedure (“I.O.P.”) 65.24 addresses hybrid representation in the context of

a notice of appeal as follows:

              Where a litigant is represented by an attorney before the
      Court and the litigant submits for filing a petition, motion, brief
      or other type of pleading in the matter, it shall not be accepted
      for filing, but noted on the docket and forwarded to counsel of
      record.

      Exceptions:

            1. A pro se notice of appeal received from the trial
            court shall be docketed, even in instances where
            the pro se [appellant] was represented by
            counsel in the trial court.




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           2. A motion by the pro se for appointment of new
           counsel, for reasons such as abandonment by
           counsel, or to proceed pro se shall be docketed and
           referred to Central Legal Staff, or the merits panel if
           constituted, for review and further action by the
           Court.

           3. A pro se brief or writing filed in response to
           counsel’s petition to withdraw from representation.

210 Pa. Code § 65.24 (emphasis added).         Thus, we must address the

difference between pro se filings, generally, that are “noted on the docket”

under Pa.R.Crim.P. 576(A)(4), as opposed to a notice of appeal being

“docketed” under I.O.P. 65.24.

     In Commonwealth v. Ellis, 626 A.2d 1137 (Pa. 1993), the Supreme

Court addressed issues created where a criminal defendant is represented by

counsel, yet files a pro se appellate brief. The Court noted that while there

is no right to hybrid representation, there is right of appeal pursuant to

Article 5, § 9 of the Pennsylvania Constitution. Ellis, 626 A.2d at 1138. The

Ellis Court distinguished between overburdening appellate courts with pro se

briefs and allowing for the protection of one’s constitutional right to an

appeal. Id. at 1141.2

     Because a notice of appeal protects a constitutional right, it is

distinguishable from other filings that require counsel to provide legal

2
   Cf. Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011) (discussing a
procedural “quagmire” and holding that a pro se notice of appeal that was
filed before a counseled post-sentence motion and a subsequent counseled
notice of appeal should have been considered timely where the Superior
Court administratively quashed the counseled appeal).



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knowledge and strategy in creating a motion, petition, or brief.3     We thus

hold that this Court is required to docket a pro se notice of appeal despite

Appellant being represented by counsel, based on the rationale in Ellis and

I.O.P. 65.24.    Additionally, in the case at bar, Appellant’s pro se notice of

appeal was docketed in the trial court but not forwarded to this Court

pursuant to Pa.R.A.P. 902 (note).4       We deem this a breakdown in the

operation of the courts.5 Therefore, we shall accept this appeal as timely.

      On appeal, Appellant raises the following issues for this Court’s

consideration:

      1. Did sufficient evidence exist for the jury to find [Appellant]
      guilty of criminal conspiracy to deliver a controlled substance, or
      any counts of possession with the intent to deliver a controlled
      substance, where no drugs or physical evidence was presented
      at trial?




3
  As noted by Justice Todd in her dissent in Cooper, the pro se filing of a
notice of appeal where a defendant is represented by counsel is without
question hybrid representation, and difficulties will arise; e.g., where a pro
se appeal divests the trial court of jurisdiction under Pa.R.A.P. 1701 before a
counseled post-sentence motion is filed. Cooper, 27 A.3d at 1009 (Todd, J.,
dissenting). However, this concern appears to have been addressed by the
Majority in Cooper wherein such an appeal was labeled “merely premature”
when the trial court addressed the post-sentence motion. Cooper, 27 A.3d
at 1007.
4
  The notice of appeal that was forwarded to this Court and docketed was
the counseled notice of appeal filed on December 1, 2015.
5
  See Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa. Super. 2015)
(“[An appellant] should not be precluded from appellate review based on
what was, in effect, an administrative breakdown on the part of the trial
court.”).



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       2. Did the court err by using “enhanced” sentencing guidelines,
       thereby elevating the offense gravity scores of the crimes due to
       the alleged weight of the controlled substances involved, without
       making any finding on the record at either the sentencing
       hearing or the resentencing hearing as to the weights of the
       controlled substances and relying on the weights of the
       controlled substances determined by the jury at the time of the
       trial?

Appellant’s Brief at 4.

       In his first issue, Appellant presents a challenge to the sufficiency of

the evidence underlying his 2011 convictions in this matter.            Before we

proceed further, we address the Commonwealth’s argument that Appellant’s

issue is not properly before us. Commonwealth’s Brief at 13. In support of

its   argument,   the     Commonwealth   cites   to   this   Court’s   decision   in

Commonwealth v. Anderson, 801 A.2d 1264 (Pa. Super. 2002).

       In Anderson, we addressed the limited issues an appellant could raise

in a second direct appeal where the appellant already had the benefit of a

direct appeal and was later resentenced:

       As noted supra, however, appellant has already had the benefit
       of a direct appeal, and at that time did not challenge his
       conviction on any basis, including counsel’s ineffectiveness.
       Rather,    the    only   issues   he   raised   concerned   the
       unconstitutionality of his sentence. Having succeeded on these
       issues and having been re-sentenced following remand,
       appellant could not file another direct appeal attacking his
       conviction: the only issues reviewable in a direct appeal would
       be challenges to the sentence imposed following remand.

Anderson, 801 A.2d at 1266. We agree with the Commonwealth.

       As stated previously, Appellant has already litigated a direct appeal

challenging his convictions and judgment of sentence.            In that appeal,


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Appellant raised one issue challenging the trial court’s ruling that allowed an

FBI agent to testify in his capacity as both an expert and a lay witness.

Pa.R.A.P. 1925(b) Statement, 8/24/11.            This Court affirmed Appellant’s

judgment of sentence in a Judgment Order filed on May 8, 2013.

      Because Appellant had the benefit of a direct appeal, he is barred from

raising any issues other than a challenge to the sentence imposed on

remand. Anderson, 801 A.2d at 1266. Accordingly, Appellant’s first issue

wherein he challenges the sufficiency of the evidence is waived for

Appellant’s failure to raise it in his first direct appeal.

      In his second issue, Appellant alleges that the trial court abused its

discretion in applying an elevated offense gravity score (“OGS”) that was

based on the weight of the controlled substances.             A claim that the

sentencing court used an incorrect OGS is a challenge to the discretionary

aspects of one’s sentence.       Commonwealth v. Lamonda, 52 A.3d 365,

370-371 (Pa. Super. 2012).

      It is well settled that a challenge to the discretionary aspects of a

sentence is a petition for permission to appeal, as the right to pursue such a

claim is not absolute. Commonwealth v. Treadway, 104 A.3d 597, 599

(Pa. Super. 2014). Before this Court may review the merits of a challenge

to the discretionary aspects of a sentence, we must engage in the following

four-pronged analysis:

      [W]e conduct a four part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal, see Pa.R.A.P. 902


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       and 903; (2) whether the issue was properly preserved at
       sentencing or in a motion to reconsider and modify sentence,
       see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal
       defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
       question that the sentence appealed from is not appropriate
       under the Sentencing Code, 42 Pa.C.S. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)).

       As discussed above, we have determined that Appellant filed a timely

appeal.     Appellant   also   properly   included   a   statement   pursuant   to

Pa.R.A.P. 2119(f) in his brief.   However, we are constrained to agree with

the positions taken by both the trial court and the Commonwealth that

Appellant failed to preserve this challenge to the OGS at the time of

sentencing or in a post-sentence motion. Trial Court Opinion, 1/29/16, at

14-16; Commonwealth’s Brief at 20.         A review of the record reveals that

while Appellant did file a timely post-sentence motion, he never mentioned

the OGS. Appellant only argued that his aggregate sentence was excessive

due to the individual sentences being ordered to run consecutively as

opposed to concurrently.       Post-Sentence Motion, 10/26/15.       Because the

OGS was not raised in any manner, we conclude Appellant has waived this

challenge to the discretionary aspects of his sentence. Moury, 992 A.2d at

170.




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     For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm Appellant’s judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/23/2016




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