J-S47007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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.

MEMORANDUM BY SHOGAN, J.:                        FILED AUGUST 01, 2016

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

entered on October 16, 2015. After review, we are constrained to quash the

appeal.

     On April 19, 2011, following a jury trial, Appellant was found guilty 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, and we affirmed the judgment of sentence on May 8, 2013.

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

defendant’s case was pending on direct appeal when Alleyne was decided,

then that defendant was entitled to retroactive application of the holding

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

     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


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

and directed Appellant to be resentenced.       PCRA Order, 9/16/2015.        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. However, because he was represented by counsel, the

notice of appeal was docketed and properly forwarded to counsel on

November    25,   2015.     Pa.R.Crim.P.    576(A)(4).     Appellant’s   counsel

subsequently filed a notice of appeal on December 1, 2015.

      In this Commonwealth, hybrid representation is not permitted.

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

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

counsel; pro se filings have no legal effect and are, therefore, legal nullities.

Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007). When

a counseled defendant files a pro se document, it is noted on the docket and

forwarded to counsel, Pa.R.Crim.P. 576(A)(4), but no further action is to be


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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.”).

      Here, Appellant’s November 19, 2015 pro se notice of appeal was a

legal nullity, and it did not toll the appeal period. Accordingly, Appellant’s

December 1, 2015 notice of appeal was filed one day late. Thus, this Court

is without jurisdiction, and we are constrained to quash the appeal as having

been untimely filed.    See Commonwealth v. Capaldi, 112 A.3d 1242,

1244 (Pa. Super. 2015) (reiterating that this Court lacks jurisdiction to

consider untimely appeals).

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/1/2016




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