J-S09017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANGELA MARLENE WINTERS                     :
                                               :
                       Appellant               :   No. 733 WDA 2018

              Appeal from the Judgment of Sentence April 4, 2018
     In the Court of Common Pleas of Crawford County Criminal Division at
                        No(s): CP-20-SA-0000048-2016


BEFORE:      PANELLA, P.J., LAZARUS, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                                 FILED April 1, 2019

        Angela Marlene Winters appeals pro se from her judgment of sentence,

entered in the Court of Common Pleas of Crawford County, following her

conviction for driving while her operating privilege was suspended or revoked

(driving under suspension, DUI related).1 On appeal, Winters challenges the

discretionary aspects of her sentence. After careful review, we remand for

further proceedings consistent with this memorandum.2




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1   75 Pa.C.S.A. § 1543(b)(1)(i).

2 As stated by the Commonwealth, “[t]his case has some extensive procedural
history.” Brief of Appellant, at 10. That history, however, was not relayed to
this Court. To avoid confusion, we have taken the step of adding citations to
the record throughout our recitation of the factual and procedural history of
Winters’ appeal.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        On March 10, 2007, Winters was cited for driving under the influence

(DUI)—highest rate of alcohol. Certified Driver History, 1/23/17, at 2. As a

result, her license was suspended for one year, effective April 21, 2009. Id.

Winters became eligible to have her license restored on April 21, 2010, but

never took the necessary steps to do so.3        Certified Driver History, 1/23/17,

at 1.

        On August 23, 2016, the Pennsylvania State Police cited Winters for the

act underpinning the instant conviction—driving under suspension, DUI-

related.4 Traffic Citation, 8/23/16, at 1. In a November 3, 2016 letter to

Magisterial District Court, Winters contested the citation. Letter, 11/3/16, at

1. Winters failed to appear for her December 6, 2016 hearing; consequently,

Magisterial District Judge Lincoln S. Zilhaver sentenced her to the mandatory

minimum sentence of 60 days’ incarceration.            Order Imposing Sentence,

12/4/16, at 1; see 75 Pa.C.S.A. § 1543(b)(1)(i) (prescribing mandatory

minimum sentence). Winters petitioned for leave to appeal in forma pauperis

on December 9, 2016, which the court granted on December 12, 2016.

Motion, 12/9/16, at 1–2; Order, 12/12/16, at 1.          On December 13, 2016,
____________________________________________


3 In order to restore her license, Winters was required to produce proof of
insurance, install an ignition interlock system, and apply for an ignition
interlock license. Restoration Letter, 3/4/16, at 1–2.

4 We note Winters was cited on March 2, 2016, for a separate instance of
driving under suspension, which is not before this Court. Certified Driver
History, 1/23/17, at 2.




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Winters filed a notice of appeal from her summary criminal conviction. Notice

of Appeal, 12/13/16, at 1.

       Winter’s trial de novo was repeatedly rescheduled5 until April 4, 2018,

on which date, while represented by Assistant Public Defender Gary A. Kern,

Esquire, the Honorable Anthony J. Vardaro found Winters in violation of

section 1543(b) of the Motor Vehicle Code and sentenced her to 60 days’

imprisonment, a $500 fine, and associated court costs.        Sentencing Order,

4/4/18, at 1.     There are no transcripts of this hearing.   Pa.R.A.P. 1925(a)

Opinion, 6/6/18, at 1.

       On April 25, 2018, Winters filed a pro se motion to modify sentence,

requesting house arrest in lieu of incarceration owing to her physical ailments

and the demands of caring for her five-year-old son.6         Motion to Modify

Sentence, 4/25/18, at 1. The court docketed the motion, scheduled a hearing

for May 1, 2018, and provided notice to the public defender’s office of Winters’
____________________________________________


5Winters’ summary appeal hearing was continued until September 29, 2017,
at which point Winters failed to appear, prompting the court to issue a bench
warrant. Order, 9/29/17, at 1. Winters was taken into custody on March 21,
2018, and the court scheduled a hearing the following day. Order, 3/21/18,
at 1. That hearing, however, was ultimately continued until April 4, 2018.
Order, 3/27/18, at 1.

6Generally, courts are prohibited from sentencing an offender to intermediate
punishment when a mandatory minimum sentence is at issue. 42 Pa.C.S.A.
§ 9721(a.1)(1). However, an individual sentenced under 75 Pa.C.S.A. §
1543(b) may be sentenced to county intermediate punishment, including
house arrest, after undergoing drug and alcohol assessment pursuant to 75
Pa.C.S.A. § 3814.




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pro se filing by email.7 Order, 4/25/18. On April 27, 2018, Winters filed a pro

se petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546, in which she alleged Attorney Kern had refused to file an appeal and

requested the assistance of new counsel.8 PCRA Petition, 4/27/18, at 3–4.

That same day, Judge Vardaro dismissed Winters’ pro se motion to modify

sentence without a hearing, stating the motion had been improperly filed in

motions court and again notified the public defender’s office of Winters’ pro se

legal activity. Order, 4/27/18. On April 30, 2018, Judge Vardaro permitted

Winters to proceed in forma pauperis on the PCRA petition, and appointed

Edward J. Hatheway, Esquire, as PCRA counsel. Order, 4/27/18, at 1. The

court, however, continued to notify the public defender’s office of Winters’

activity, as Attorney Kern had not yet withdrawn as appellate counsel. On

May 4, 2018, Winters filed a timely pro se notice of appeal from her April 4,

2018 judgment of sentence to the Superior Court. Notice of Appeal, 5/4/18.


____________________________________________


7 As discussed infra, Winters’ motion was not only untimely, it should have
been barred by the Rules of Criminal Procedure. See Pa.R.Crim.P. 720(D)
(“There shall be no post-sentence motion in summary case appeals following
a trial de novo in the court of common pleas.”).

8 As discussed infra, Winters’ PCRA petition should not have been docketed—
it should only have been forwarded to Winters’ counsel of record, Attorney
Kern. See Pa.R.A.P. 3304 (“Where a litigant is represented by an attorney
before the Court and the litigant submits for filing a petition, motion, brief or
any other type of pleading in the matter, it shall not be docketed but forwarded
to counsel of record.”).




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        Though Winters’ notice of appeal should have divested the trial court of

jurisdiction,9 on May 14, 2018, Attorney Hatheway, as PCRA counsel, filed a

Turner/Finley10 “no merit” letter and a motion to withdraw, wherein he

stated the following issues, raised by Winters in her pro se filing, lacked merit:

        1) Whether the defendant’s trial attorney was ineffective in
           representing the defendant by failing to urge the [c]ourt to
           sentence the defendant to house arrest/electronic home
           monitoring as opposed to incarceration for her conviction of
           [driving under suspension]?

        2) Whether the defendant’s trial attorney was ineffective in
           representing the defendant by failing to file an appeal to the
           Superior Court raising the issue that the trial court had abused
           its sentencing discretion by sentencing the defendant to 60
           days of incarceration for [driving under suspension]?

Turner/Finley Letter, 5/14/18, at 4. With respect to the first issue, Attorney

Hatheway believed Attorney Kern made Winters’ desire for house arrest clear

to Judge Vardaro at sentencing. Id. at 5. Attorney Hatheway did not address

the merits of Winters’ second issue, making no statement as to whether

Attorney Kern failed to file an appeal.          Id.   Instead, Attorney Hatheway

concluded Winters’ sentence was legal, stating “[t]he Superior Court is not

going to conclude that Judge Vardaro abused his sentencing discretion[.]” Id.




____________________________________________


9   See Pa.R.A.P. 1701 and 210 Pa. Code § 65.24 discussed further infra.

10 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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       On May 15, 2018, Attorney Kern—who was still named on the docket as

Winters’ counsel of record—filed a petition to withdraw as counsel.11 Petition,

5/15/18, at 1.      The following day, without holding a hearing or notifying

Winters, the court granted Attorney Kern’s petition to withdraw as counsel.

Order, 5/16/18, at 1.       On May 18, 2018, Judge Vardaro granted Attorney

Hatheway’s motion to withdraw as PCRA counsel, dismissed Winters’ PCRA

petition, and construed Winters’ May 4, 2018 filing as a timely notice of appeal

from her April 4, 2018 judgment of sentence. Order, 5/18/18, at 1.

       Though the court found itself without jurisdiction to assess Winters’

PCRA claim, it nonetheless offered its opinion on the underlying issues. Id.

With respect to Attorney Kern’s failure to file an appeal, the court stated, “the

issue with regard to defense counsel being ineffective in failing to file an

appeal to the Superior Court has been resolved since the defendant filed her

own timely notice of appeal[.]” Id. With respect to Attorney Kern’s failure to

pursue house arrest, the court stated, “while we do not have a transcript, our

recollection is the Defendant’s attorney at the time of sentencing argued for

[h]ouse [a]rrest . . . and we rejected that option.” Id. Winters subsequently



____________________________________________


11  As Winters had already filed a notice of appeal, Attorney Kern should have
filed a statement of intent to file an Anders brief, pursuant to Pa.R.A.P.
1925(c)(4), then requested this Court’s permission to withdraw as counsel.
See Anders v. California, 386 U.S. 738 (1967); see also Commonwealth
v. Santiago, 978 A.2d 349 (Pa. 2009).



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proceeded with her pro se direct appeal; both Winters and the court complied

with Pa.R.A.P. 1925.

        On appeal, Winters challenges the discretionary aspects of her sentence,

arguing Judge Vardaro abused his discretion in sentencing her to 60 days of

incarceration rather than 60 days of house arrest.12 Brief of Appellant, 1–4.

        Before we examine the substance of Winters’ appeal, we must consider

the following intertwined issues: 1) from what order is Winters appealing; 2)

what claims, if any, have been preserved; and 3) who, if anyone, represents

Winters.

        Preliminarily, to determine the appropriate order on appeal, we must

ascertain which of Winters’ post-trial filings was valid—an issue which, in this

instance, intrinsically revolves around representation.      The Pennsylvania

Constitution guarantees the right to representation by an attorney in a

criminal case and the right of appeal. Pa. Const. Art. 1 § 9, Art. 5 § 9. The

United States Constitution guarantees a criminal defendant the right to self-

representation, which may be exercised following a knowing and voluntary

waiver of the right to counsel. Faretta v. California, 422 U.S. 806, 820–21

(1975); accord Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998).

However, there is no right to contemporaneous representation pro se and by

counsel (“hybrid representation”) at trial or on appeal. Commonwealth v.


____________________________________________


12   We have paraphrased Winters’ issue on appeal for clarity and brevity.


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Ellis, 626 A.2d 1137, 1139 (Pa. 1993); see also Commonwealth v. Pursell,

724 A.2d 293, 251 (Pa. 1999) (applying Ellis rationale prohibiting hybrid

representation to PCRA proceedings).

      As an appellant does not have a right to hybrid representation, any pro

se post-sentence motions filed while represented by counsel are “a nullity,

having no legal effect.” Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.

Super. 2007). Moreover, the Rules of Appellate Procedure generally prohibit

a represented litigant from submitting his or her own motion, instead directing

the court not to docket any such filing, but to forward it to counsel of record.

Pa.R.A.P. 3304. This Court, however, “is required to docket a pro se notice of

appeal despite Appellant being represented by counsel.” Commonwealth v.

Williams, 151 A.3d 621, 624 (Pa. Super. 2016) (citing Ellis, supra at 1138,

and 210 Pa. Code. § 65.24).

      Here, the court sentenced Winters following her trial de novo on April 4,

2018. Neither her first post-trial filing, an April 25, 2018 pro se motion to

modify sentence, nor her second, an April 25, 2018 pro se PCRA petition,

should have been docketed or heard—instead, both should have been

forwarded to Winters’ counsel of record.   See Pa.R.A.P. 3304. Winters’ third

pro se filing, however—her May 4, 2018 notice of appeal—was properly

docketed. See Williams, supra at 624. Accordingly, we will consider the

issue Winters raises on appeal.




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      Winters’ sole issue on appeal pertains to the discretionary aspect of

sentencing. There is no absolute right to appellate review of the discretionary

aspects of sentencing—rather, an appellant must petition for allowance of

appeal pursuant to 42 Pa.C.S.A. § 9781.      Commonwealth v. Colon, 102

A.3d 1033, 1042 (Pa. Super. 2014). As we have previously stated:

      Before we reach the merits of this issue, we must engage in a
      four[-]part analysis to determine: (1) whether the appeal is
      timely; (2) whether Appellant preserved [her] issue; (3) whether
      Appellant’s brief includes a concise statement of the reasons relied
      upon for allowance of appeal with respect to the discretionary
      aspects of sentence; and (4) whether the concise statement raises
      a substantial question that the sentence is appropriate under the
      [S]entencing [C]ode[.] [I]f the appeal satisfies each of these four
      requirements, we will then proceed to decide the substantive
      merits of the case.

Id. at 1042–43, quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.

Super. 2013).

      Though Winters’ appeal is timely, we are unable to determine whether

she preserved her discretionary aspect claim.       Winters was procedurally

barred from preserving her claim in a post-sentence motion.                  See

Commonwealth v. Dixon, 66 A.3d 794, 797 (Pa. Super. 2013) (citing

Pa.R.Crim.P. 720(D) (“There shall be no post-sentence motion in summary

case appeals following a trial de novo in the court of common pleas. The

imposition of a sentence immediately following a determination of guilt at the

conclusion of the trial de novo shall constitute a final order for the purposes

of appeal.”)). Moreover, we cannot determine whether Winters preserved her

claim during sentencing, as her sentencing hearing was not transcribed. See

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Pa.R.A.P 1925(a) Opinion, 6/6/18, at 1 (recalling Winters contesting her

sentence of incarceration, but noting lack of transcripts).      We, therefore,

remand the case to enable the trial court to conduct an evidentiary hearing

on whether Winters preserved her discretionary aspect of sentencing claim.

       Should the court find Winters preserved her discretionary claim during

her sentencing hearing, it must subsequently address the issues stemming

from Winters’ attempts to represent herself before Attorney Kern withdrew as

counsel.13 See Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super.

2011) (finding Superior Court obligated to consider, sua sponte, failure of trial

court to conduct Grazier hearing in analogous PCRA context).

       Even when an appellant expresses a clear desire to proceed pro se, the

rules of criminal procedure and corresponding case law require the court to

conduct a full colloquy before allowing an appellant to proceed pro se. See

Pa.R.Crim.P. 122(B)(2) (“[w]hen counsel is appointed . . . the appointment

shall be effective until final judgment, including any proceedings upon direct



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13 While Winters does not have an absolute right to appellate review of the
discretionary aspects of her sentence, she nevertheless has the right to file
her claim as a petition for permission to appeal. See Commonwealth v.
Hernandez, 755 A.2d 1, 12 (Pa. Super. 2000) (“[An] appellant [has] a right
to file an appeal challenging the discretionary aspects of [her] sentence.”);
see also id., at 12, n.5 (“an appeal challenging the discretionary aspects of
[a] sentence [] is considered a petition for permission to appeal[.]”).
Moreover, she has the right to file such an appeal either with the assistance
of counsel or under her own direction following a Grazier hearing—not,
however, via hybrid representation. See Ellis, supra at 1139.


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appeal”); see also Grazier, supra at 82 (“When a waiver of the right to

counsel is sought at the post-conviction and appellate stages, an on-the-

record determination should be made that the waiver is a knowing, intelligent,

and voluntary one.”).        Should court-appointed counsel believe his client’s

claims on direct appeal are wholly frivolous, he must first request permission

to withdraw pursuant to the dictates of Anders and Santiago.

       In this instance, neither Attorney Kern nor the court adhered to proper

procedure with regard to Winters’ representation.       Attorney Kern withdrew

without filing a notice of intent to withdraw pursuant to Rule 1925(c)(4) in the

court of common pleas or requesting permission to withdraw from this Court

in an Anders brief.14 Petition to Withdraw, 5/14/18, at 1. The court below

allowed Winters to represent herself without first conducting a Grazier

hearing. Pa.R.A.P. 1925(a) Opinion, 5/18/18, at 1.




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14In Santiago, our Supreme Court established that briefs stating an intent to
withdraw pursuant to Anders must:

       (1) provide a summary of the procedural history and facts, with
       citations to the record; (2) refer to anything in the record that
       counsel believes arguably supports the appeal; (3) set forth
       counsel’s conclusion that the appeal is frivolous; and (4) state
       counsel’s reasons for concluding that the appeal is frivolous.
       Counsel should articulate the relevant facts of record, controlling
       case law, and/or statutes on point that have led to the conclusion
       that the appeal is frivolous.

Santiago, supra at 361.

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      If Winters wishes to represent herself, the trial court must first

determine whether she knowingly, intentionally, and voluntarily chooses to

waive counsel. See Grazier, supra at 82. If the court finds the Grazier

standard has not been met, it shall appoint new counsel to proceed on Winters’

behalf. Newly-appointed counsel shall then either file a nunc pro tunc Rule

1925(b) concise statement of errors complained of on appeal and a

corresponding brief, or file a notice of intent to withdraw pursuant to Rule

1925(c)(4) and seek this Court’s permision to withdraw in accordance with

Anders and Santiago.

      For the reasons set forth above, we remand for an evidentiary hearing,

to be held within 45 days of the date of this memorandum, to determine

whether Winters preserved her claim challenging the discretionary aspects of

her sentence during her April 4, 2018 sentencing hearing. If the court finds

she preserved her claim, it shall subsequently make a determination

concerning the appointment of counsel as described above within 45 days

thereafter.

      Remanded for further proceedings consistent with this memorandum.

Panel jurisdiction retained.




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