J-S61037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 RICHARD WILLIAMS                         :
                                          :
                    Appellant             :   No. 2506 EDA 2017

                 Appeal from the PCRA Order July 10, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0009977-2014
                                        CP-51-CR-0009978-2014
                                        CP-51-CR-0010014-2014
                                        CP-51-CR-0010015-2014


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY PANELLA, J.:                             FILED MAY 31, 2019

      Appellant, Richard Williams, appeals from the order denying his petition

for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

9541-9546. We affirm in part and vacate in part.

      In separate offenses, Appellant robbed four pizza delivery persons at

gunpoint. On October 22, 2014, he entered a counseled, negotiated guilty

plea to four counts of robbery, threat of immediate serious bodily injury, 18

Pa.C.S.A. § 3701(a)(1)(ii), and four counts of violation of the Pennsylvania

Uniform Firearms Act of 1995 (“VUFA”), 18 Pa.C.S.A. § 6105(a)(1), persons

not to possess firearms.

      As part of the plea negotiations, the Commonwealth withdrew numerous

other charges, including firearms not to be carried without a license, criminal
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use of a communications facility, criminal attempt−theft by unlawful taking,

simple assault, and reckless endangerment.       Appellant did not file a post-

sentence motion or direct appeal.

       That same day the trial court imposed the agreed-on sentence of not

less than seven and one-half nor more than fifteen years of incarceration in a

state correctional institution for each count. The court imposed all sentences

to run concurrently.

       On August 24, 2015, Appellant filed a timely PCRA petition, pro se, but

withdrew it on September 1, 2015. Shortly thereafter, on October 13, 2015,

Appellant filed an application for assignment of counsel. On May 6, 2016, a

judge was assigned to decide the application, and the dockets contain an entry

for “PCRA Scheduled.” On May 11, 2016, the dockets indicate that counsel

was appointed to represent Appellant.

       Later, on July 10, 2016, Appellant, pro se, filed a “supplemental”

petition, apparently without prior leave of court. There is no indication that

appointed counsel ever filed a petition on Appellant’s behalf. Nevertheless,

counsel filed a Turner/Finley1 letter and was granted permission to withdraw

in the PCRA court. The PCRA court then addressed the claim in Appellant’s

supplemental pro se filing, a challenge to mandatory minimum sentencing

pursuant to Alleyne v. United States, 570 U.S. 99 (2013). The PCRA court


____________________________________________


1 See 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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rejected the claim on the merits because Appellant received a negotiated

sentence, not a mandatory minimum sentence. This timely appeal followed.

      We must first address the issue of our jurisdiction to entertain this

appeal. See Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014).

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence becomes final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration of
      the time for seeking such review. The PCRA’s timeliness
      requirements are jurisdictional; therefore, a court may not
      address the merits of the issues raised if the petition was not
      timely filed. The timeliness requirements apply to all PCRA
      petitions, regardless of the nature of the individual claims raised
      therein. The PCRA squarely places upon the petitioner the burden
      of proving an untimely petition fits within one of the three
      exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (internal citations

and footnote omitted).

      Appellant’s judgment of sentence became final on November 21, 2014,

when his time for seeking direct review with this Court expired. See 42

Pa.C.S.A. § 9545(b)(3)(judgment of sentence becomes final “at the conclusion

of direct review … or at the expiration of time for seeking the review”).

Therefore, he had until Monday, November 23, 2015 to file a timely PCRA

petition.

      Appellant filed a timely, pro se petition on August 24, 2015. He

subsequently withdrew the petition before counsel was appointed. On October

13, 2015, Appellant filed his application for appointment of counsel, which the

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PCRA court treated as a PCRA petition. The PCRA court appointed counsel, but

Appellant subsequently filed a “supplemental petition” pro se. Well-

established Pennsylvania law provides that a defendant is not entitled to file

documents pro se while represented by counsel. See Commonwealth v.

Ellis, 626 A.2d 1137, 1141 (Pa. 1993) (defendant does not have the

constitutional right to self-representation as well as counseled representation

at the trial or appellate level). Therefore, we generally treat pro se filings while

an appellant remains represented as legal nullities. See Commonwealth v.

Ali, 10 A.3d 282, 293 (Pa. 2010) (reiterating that hybrid representation is not

permitted).

       Here, however, appointed counsel never filed a petition. Instead,

counsel reviewed the issue raised by Appellant in his initial, timely, pro se

petition and his “supplemental petition,” and concluded Appellant’s issues

were “without merit.” See Turner/Finley Letter, 6/2/17.2

       Under these circumstances, we conclude that we have jurisdiction to

review Appellant’s claims under the PCRA. The PCRA court treated his October

13, 2015 filing as a PCRA petition. This filing was timely under the PCRA. This


____________________________________________


2 Interestingly, counsel reviewed Appellant’s sentences in the context of
Appellant’s claim that plea counsel had improperly advised him on the
maximum sentence he faced if he refused the plea agreement. In this analysis,
counsel noted, “the statutory maximum for each count of [VUFA] is 10 years.”
Turner/Finley Letter, 6/2/17, at 2 (unnumbered).




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petition did not seek any relief outside the appointment of counsel. In addition,

since Appellant’s subsequent pro se supplemental PCRA petition is a legal

nullity, Appellant has waived all claims for relief. However, the October 13,

2015, filing preserved our jurisdiction to address any non-waiveable claims of

merit.3

       We review an order denying collateral relief under the PCRA to

determine whether evidence of record supports the findings of the PCRA court

and whether its legal conclusions are free from error. See Commonwealth

v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014). “The PCRA court’s credibility

determinations, when supported by the record, are binding on this Court;

however, we apply a de novo standard of review to the PCRA court’s legal

conclusions.” Id. (citation omitted). Pertinent to this appeal,

       If no statutory authorization exists for a particular sentence, that
       sentence is illegal and subject to correction. An illegal sentence
       must be vacated. Issues relating to the legality of a sentence are
       questions of law[.] . . . Our standard of review over such questions
       is de novo and our scope of review is plenary.

Commonwealth v. Aikens, 139 A.3d 244, 245 (Pa. Super. 2016), affirmed,

168 A.3d 137 (Pa. 2017) (citations omitted).




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3 While we agree with the PCRA court’s conclusion that Appellant’s Pa.R.A.P.
1925(b) statement was too vague to preserve any issues on appeal, we still
must address Appellant’s challenge to the legality of his sentence, as this claim
is non-waiveable. See Commonwealth v. Hawkins, 45 A.3d 1123, 1130
(Pa. Super. 2012).

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      Appellant argues on appeal that his sentence exceeds the legal

maximum. See Appellant’s Brief at 11-12. Challenges to an illegal sentence

can never be waived, so long as the reviewing court has jurisdiction. See

Commonwealth v. Randal, 837 A.2d 1211, 1214-1215 (Pa. Super. 2003)

(en banc).

      The parties do not dispute, and a review of the record confirms, that the

sentencing court imposed identical sentences of seven-and-a-half to fifteen

years of incarceration for each VUFA count entered in the guilty plea, to run

concurrently. Appellant’s VUFA violations are graded as a felony of the second

degree. See 18 Pa.C.S.A. § 6105(a.1)(1). In the case of a felony of the

second degree, a sentence of imprisonment shall not exceed ten years. See

18 Pa.C.S.A. § 1103(2).      Accordingly, Appellant’s maximum sentence of

fifteen years’ incarceration for the VUFA violations was illegal. The

Commonwealth concedes that the VUFA sentences are illegal.

      The PCRA court defends the sentence, reasoning in part that Alleyne

did not apply and in part, that Appellant faced an aggregate sentence “far

above the negotiated sentence.”       PCRA Ct. Op. at unnumbered page 7.

However, that fact in itself does not preclude Appellant’s challenge. “Even

when there has been a plea agreement involving a negotiated sentence, an

appellant may challenge the sentence as being illegal.” Commonwealth v.

O'Malley, 957 A.2d 1265, 1267 n.1 (Pa. Super. 2008) (citation omitted).

Appellant’s sentence, as imposed, was still illegal.


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     Appellant   asks     this   Court    to   remand   for   resentencing.   The

Commonwealth opposes a remand. We agree with the Commonwealth that a

remand is unnecessary.

     If our disposition upsets the overall sentencing scheme of the trial
     court, we must remand so that the court can restructure its
     sentence plan. By contrast, if our decision does not alter the
     overall scheme, there is no need for a remand.

Commonwealth v. Thur, 906 A.2d 552, 569–70 (Pa. Super. 2006) (citations

omitted). The sentencing court imposed identical sentences on the VUFA

convictions and the robbery convictions. Further, all sentences were

concurrent. As a result, vacating the sentences for Appellant’s VUFA offenses

will not upset the overall sentencing scheme.

     Order affirmed in part and vacated in part. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/19




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