J.S04041/14

NON-PRECEDENTIAL DEC ISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
MARTIN LUTHER DERR,                         :
                                            :
                          Appellant         :     No. 1686 EDA 2013


             Appeal from the Judgment of Sentence March 22, 2013
             In the Court of Common Pleas of Northampton County
               Criminal Division No(s).: CP-48-CR-0000658-2011

BEFORE: BENDER, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 16, 2014

        Appellant, Martin Luther Derr, appeals from the judgment of sentence1

entered in the Northampton County Court of Common Pleas following the

revocation of his parole.2     Appellant argues: (1) his notice of appeal was



*
    Former Justice specially assigned to the Superior Court.
1
  Appellant purported to appeal from the May 9, 2013 order denying his
motion for reconsideration of sentence. However, the appeal lies properly
from the judgment of sentence imposed on March 22 2013, and we have
amended the caption accordingly.
2
      en an offender is sentenced to a maximum term of imprisonment of
less than two years, the common pleas court retains the authority to grant
and revoke parole; when the maximum term is two years or more, authority
to grant or revoke parole is vested in the               Commonwealth
v. Hanson, 856 A.2d 1254, 1258 (Pa. Super. 2004).
J.S04041/14

timely filed; (2) the trial court failed to state on the record reasons for

revoking his parole and imposing its sentence; (3) his Gagnon II3 hearing

was not speedily held; (4) the trial court denied his right to counsel for a

post-sentence motion; and (5) he was not provided written notice of his

alleged parole violations. We hold the notice of appeal was timely filed, but

                                           pro se post-sentence motion and

remand for counsel to file a new post-



appeal was untimely. See Trial Ct. Op., 6/27/13, at 1-3.4

                                               Commonwealth v. Trinidad,

90 A.3d 721, 724 (Pa. Super. 2014) (citations omitted). A notice of appeal

shall be filed within thirty days of the order from which the appeal is taken.

Pa.R.A.P. 903(a).    Because the underlying sentence was imposed after

revocation of parole, the post-sentence proceedings are governed by

Pennsylvania Rule of Criminal Procedure 708.5


3
  A Gagnon I hearing is a pre-revocation hearing to determine if probable
cause exists that a violation was committed. After this determination is
made, a Gagnon II hearing is conducted where the Commonwealth is

Commonwealth v. Stafford, 29 A.3d 800, 801 n.1 (Pa. Super. 2011); see
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
4
  The three-page opinion add
of appeal.
5
    See also Pa.R.Crim.P. 708, cmt




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J.S04041/14

motion to modify a sentence imposed after a revocation shall be filed within

10 days of the date of imposition. The filing of a motion to modify sentence

will not toll the 30-

added); see also Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa.

Super. 2001). However, this Court has declined to quash an appeal where a



period,   which    operated      as   a   breakdown   i

Coolbaugh, 770 A.2d at 791. In Coolbaugh



thirty days from the denial of his post-sentence motion to appeal to the

Superior Court. Id. at 790-91.

        Furthermore, we note that when a criminal defendant is represented

                                                 pro se pleading is to refer the

pleading to counsel, and to take no further action on the pro se pleading

unless counsel forw                          Commonwealth v. Jette, 23 A.3d

1032,     1044    (Pa.   2011)    (reiterating   there    is   no   right   to   hybrid

representation); see also Pa.R.Crim.P. 576(A)(4) (stating that when

criminal defendant, who is represented by attorney, submits motion for filing

that has not been signed by attorney, clerk of court shall accept it for filing

and forward copy to counsel).

        In the case sub judice, current appellate counsel, Brian M. Monahan,

                                                                                     n



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the underlying criminal case. Appellant was then represented at the March

22, 2013 revocation hearing by Robert Patterson, Esq.6 At that proceeding,



     There is no indication in the record that either Attorney Patterson or

Attorney   Monahan    requested,   or   was   granted,   leave   to   withdraw.

Nevertheless, Appellant then filed a pro se post-sentence motion on April



would generally have been due Monday, April 22nd,7 and the post-sentence

motion would not have tolled this deadline.          See Pa.R.A.P. 903(a);

Pa.R.Crim.P. 708(E); Coolbaugh, 770 A.2d at 791.         The court issued an

order denying the motion on May 9th     which fell after the April 22nd appeal

deadline. Appellant then filed a notice of appeal through Attorney Monahan

on June 5th.   The notice of appeal is thus facially untimely under Rule of

Appellate Procedure 903(a) and Rule of Criminal Procedure 708(E).

     In its opinion, the trial court maintains that following sentencing,


6
  In a pro se letter written from Appellant to the trial court, dated the day
after the court revoked his parole, Appellant stated that he was represented
at the Gagnon II

                                                rtified record provides no
additional information as to whether Attorney Patterson was also from the


7
  The thirtieth day after sentencing fell on Sunday, April 21, 2013. Appellant
thus had until the following day to file a notice of appeal. See 1 Pa.C.S. §
1908.




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J.S04041/14

                                                       -Gagnon II Hearing

                                     inter alia, the time periods for filing a

post-sentence motion and appeal, and the rule that a post-sentence motion

would not toll the thirty-day period for filing an appeal. Trial Ct. Op. at 3

n.1. Our review of the form confirms the same.

       Appellant argues on appeal, however, there was a breakdown in the



denying his pro se post-sentence motion, which erroneously stated that he

had thirty days from the date of that order to file an appeal.    See Order,

5/9/13, at 1. The Commonwealth responds that Appellant was provided the

corr

                                             -



       We further note that the certified record does not indicate whether the

court forwarded               pro se motion to either Attorney Patterson or

Attorney Monahan.     See Jette, 23 A.3d at 1044. Instead, it is clear that

court ruled on the motion. See Jette, 23 A.3d at 1044. There is likewise no

indication in the record or trial docket of whether the order was provided to

either Attorney Monahan or Attorney Patterson.

                                                                       pro se

motion to counsel and its ruling on the pro se motion, and despite the post-

Gagnon II                          t advice as to the time requirements for



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filing an appeal, we agree with Appellant that there was a breakdown in

court operations necessitating excusal of his otherwise untimely notice of

appeal. See Coolbaugh, 770 A.2d at 790-91. We thus hold this Court has

jurisdiction over this appeal. See Trinidad, 90 A.3d at 724.




amended Pa.R.A.P. 1925(a) opinion addressing his claims.       However, we

                                                      pro se post-sentence

motion                                                    See Pa.R.Crim.P.

708(E); Coolbaugh, 770 A.2d at 791; see also Pa.R.Crim.P. 122(B)(2)

              el has been appointed . . . the appointment shall be effective



also cannot determine whether Attorney Monahan has crafted the appellate

brief with any assumptions that certain issues may have been waived by the

failure to raise them in the post-sentence motion.

     Furthermore, we note some deficiencies in the record that could

hamper our review.    For example, in arguing he was not provided written

notice of the alleged parole violations, Appellant avers that neither the

record nor docket indicate that the petition to revoke was served on him.

Our review of the record confirms there is no certificate of service or




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notation in the docket of service on anyone.8 There is also no transcript of

the Gagnon I hearing, the contents of which may or may not be

informative. In addition, one contested issue at the Gagnon II hearing was

whether Appellant completed drug treatment or provided proof of such

completion.      The probation officer, while testifying that Appellant did not

provide proof of completion, also stated Appellant attempted to re-enroll in



                                                        -6.      There is no further

discussion or elaboration. See id. at 6.

          In light of all the foregoing, and with caution to err in protecting



                                             pro se post sentence motion and

remand for counsel to file a post-

considering the new motion, the court may conduct any proceedings it

deems appropriate. Because the court will rule afresh on any issues raised

in the counseled motion, we do not c

issues in this appeal.9


8
    See

are filed and served . . . shall include a certificate of serv
9
  We emphasize that this memorandum, including our statements above
                                                                           -
enroll in treatment, is not to be construed as endorsement of any claim.
Instead, it is for the trial court to consider any claim presented, with the



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     Order denying post-sentence relief vacated.        Case remanded for

proceedings consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/16/2014




                                                -hand   knowledge   of    the
proceedings.



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