J-S23033-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                Appellee                  :
                                          :
                   v.                     :
                                          :
DAVID JULIUS PRICE, SR.,                  :
                                          :
                Appellant                 : No. 1647 EDA 2014

       Appeal from the Judgment of Sentence Entered April 30, 2014,
            in the Court of Common Pleas of Delaware County,
           Criminal Division, at No(s): CP-23-CR-0006350-2013

BEFORE:    DONOHUE, SHOGAN, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                FILED NOVEMBER 12, 2015

     David Julius Price, Sr. (Appellant) appeals from the judgment of

sentence entered April 30, 2014, following his guilty plea to one count of

driving under the influence of alcohol (DUI) - highest rate of alcohol - third

offense; three counts of recklessly endangering another person; and, one

count of driving while operating privilege was suspended or revoked.

Counsel for Appellant has filed a petition to withdraw and brief pursuant to

Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.

Santiago, 978 A.2d 349, 361 (Pa. 2009). We affirm the judgment of

sentence and grant the petition to withdraw.

     Appellant was arrested and charged with various offenses following an

incident that occurred on September 18, 2013. On March 3, 2014, Appellant

entered into an open guilty plea to the aforementioned charges.      On April



*Retired Senior Judge assigned to the Superior Court.
J-S23033-15


30, 2014, Appellant was sentenced to an aggregate term of 2 to 11 years’

incarceration. No post-sentence motion was filed. Appellant filed a pro se

notice of appeal.   The trial court forwarded this notice to Appellant’s counsel

of record and directed counsel to file a statement of errors complained of on

appeal. Counsel complied with the trial court’s directive by filing notice of his

intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).

      On February 10, 2015, Appellant’s counsel filed with this Court a

petition to withdraw as counsel and an Anders brief. On June 11, 2015, due

to deficiencies in counsel’s Anders brief and petition to withdraw, we denied

the petition and remanded to allow counsel to file a supplemental Anders

brief. Counsel filed a supplemental Anders brief; however, because this

brief was inadequate, on August 26, 2015, this panel remanded the matter

once more. Counsel’s second supplemental Anders brief and petition to

withdraw are now before us.

      At the outset, we must determine whether this appeal is timely.

Appellant was sentenced on April 30, 2014, and had 30 days, or until May

30, 2014, to file a timely notice of appeal. Appellant’s notice of appeal was

entered on the docket on June 3, 2014.

      “[I]n the interest of fairness, the prisoner mailbox rule provides that a

pro se prisoner’s document is deemed filed on the date he delivers it to

prison authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34,




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38 (Pa. Super. 2011). The rule allows this Court “to accept any reasonably

verifiable evidence of the date that the prisoner deposits the appeal with the

prison authorities....” Commonwealth v. Perez, 799 A.2d 848, 851 (Pa.

Super. 2002).

      Instantly, the certificate of service attached to Appellant’s notice of

appeal is dated May 27, 2014, which arguably supports a conclusion that

Appellant’s appeal was timely filed under the prisoner mailbox rule.

However, the envelope containing the notice is postmarked June 2, 2014.

Nonetheless, there is nothing of record that would indicate that Appellant did

not place the document in the hands of prison authorities on May 27, 2014,

or shortly thereafter.

      However, pursuant to well-established Pennsylvania law, a defendant

is not entitled to hybrid representation. See Commonwealth v. Ellis, 626

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

right of self-representation together with counseled representation at the

trial or appellate level); see also Commonwealth v. Jette, 23 A.3d 1032,

1036 (Pa. 2011) (citing Pennsylvania’s long-standing policy that precludes

hybrid representation). Additionally, Rule 120(A)(4) of the Rules of Criminal

Procedure states that an “[a]n attorney who has been retained … shall

continue such representation through direct appeal or until granted leave to

withdraw by the court pursuant to paragraph (B).” Pa.R.Crim.P. 120(A)(4).




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Paragraph (B) of that rule states that “[c]ounsel for a defendant may not

withdraw his or her appearance except by leave of court.” Pa.R.Crim.P.

120(B)(1).

      Here, the record demonstrates that trial counsel was still counsel of

record at the time Appellant filed his pro se notice of appeal. Despite his

claim in his motion to withdraw that his representation of Appellant “did not

include taking an appeal” to this Court, Petition to Withdraw As Counsel,

6/9/2014, at ¶ 2, counsel did not move to withdraw at any point prior to

Appellant’s pro se filing. Moreover, Appellant did not request leave to

proceed pro se, nor did he request that plea counsel withdraw. Pursuant to

the Rules of Criminal Procedure outlined above, it was improper for him to

file a pro se notice of appeal with the trial court.

      We further note that, although Appellant filed his notice of appeal pro

se while ostensibly represented by counsel, that does not deprive this Court

of jurisdiction to hear Appellant’s claims. Generally, our courts will not

entertain pro se filings while an appellant remains represented, and such

filings have been described as legal nullities. See Commonwealth v. Ali,

10 A.3d 282, 293 (Pa. 2010). However, pro se notices of appeal present a

special case. In Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011), our

Supreme Court held that a pro se notice of appeal, filed while Cooper was

represented by counsel, was not automatically a legal nullity, but was simply




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“premature.” Id. at 1007. Admittedly, Cooper was a case with a unique

procedural history that can be distinguished from that of the instant matter.

Nonetheless, this Court and our Supreme Court have faced pro se notices of

appeal filed by represented appellants both before and after Cooper, and

have not considered this defect to be fatal. See, e.g., Commonwealth v.

Wilson, 67 A.3d 736, 738 (Pa. 2013) (explaining that “[Wilson] filed a pro

se notice of appeal; it is not clear why his court-appointed counsel did not

file the notice,” and proceeding to review the merits of Wilson’s case without

further discussion); Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa.

Super. 2009) (remanding for a Grazier hearing where, after the denial of

Robinson’s counseled petition pursuant to the Post Conviction Relief Act,

Robinson filed a timely pro se appeal, and a petition requesting that he be

allowed to proceed pro se, and the PCRA court entered an order permitting

counsel to withdraw). Thus, we will not treat Appellant’s pro se notice of

appeal as a nullity.   Accordingly, we proceed to our review of counsel’s

Anders brief and petition to withdraw.

      The following principles guide our review of this matter:

      Direct appeal counsel seeking to withdraw under Anders must
      file a petition averring that, after a conscientious examination of
      the record, counsel finds the appeal to be wholly frivolous.
      Counsel must also file an Anders brief setting forth issues that
      might arguably support the appeal along with any other issues
      necessary for the effective appellate presentation thereof….




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             Anders counsel must also provide a copy of the Anders
      petition and brief to the appellant, advising the appellant of the
      right to retain new counsel, proceed pro se or raise any
      additional points worthy of this Court’s attention.

             If counsel does not fulfill the aforesaid technical
      requirements of Anders, this Court will deny the petition to
      withdraw and remand the case with appropriate instructions
      (e.g., directing counsel either to comply with Anders or file an
      advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
      petition and brief satisfy Anders, we will then undertake our
      own review of the appeal to determine if it is wholly frivolous. If
      the appeal is frivolous, we will grant the withdrawal petition and
      affirm the judgment of sentence. However, if there are non-
      frivolous issues, we will deny the petition and remand for the
      filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted).

      Our Supreme Court has clarified portions of the Anders procedure:

      Accordingly, we hold that in the Anders brief that accompanies
      court-appointed counsel’s petition to withdraw, counsel 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, 978 A.2d at 361.

      Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has substantially complied with the




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above requirements.1       Once “counsel has met these obligations, ‘it then

becomes the responsibility of the reviewing court to make a full examination

of the proceedings and make an independent judgment to decide whether

the appeal is in fact wholly frivolous.’” Commonwealth v. Flowers, 113

A.3d 1246, 1249 (Pa. Super. 2015) (quoting Santiago, 978 A.2d at 354 n.

5).

         In his second supplemental Anders brief, counsel sets forth one issue

of arguable merit: whether Appellant’s sentence was harsh and excessive.

Anders brief at 3-5. It is well-settled that an appellant challenging the

discretionary aspects of his sentence must invoke this Court’s jurisdiction by

satisfying a four-part test:

         We conduct a four-part analysis to determine: (1) whether
         appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
         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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citation

omitted).

         The record reflects that Appellant timely filed a notice of appeal and a

statement pursuant to Pa.R.A.P. 2119(f) is included in counsel’s Anders

Brief.    However, Appellant failed to file a post-sentence motion preserving
1
    Appellant has not responded to counsel’s petition to withdraw.



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the issue. As noted above,“[i]ssues challenging the discretionary aspects of

a sentence must be raised in a post-sentence motion or by presenting the

claim to the trial court during the sentencing proceedings. Absent such

efforts, an objection to a discretionary aspect of a sentence is waived.”

Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa. Super. 2013) (emphasis

in original). Accordingly, his issue is waived for not being preserved in his

post-sentence motion, or at sentencing. Commonwealth v. Cartrette, 83

A.3d 1030, 1043 (Pa. Super. 2013).     An issue that is waived is frivolous.

See Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008)

(holding that when an issue has been waived, “pursuing th[e] matter on

direct appeal is frivolous”).

      Based on the foregoing, we conclude that Appellant’s issue challenging

the discretionary aspects of his sentencing is frivolous. Moreover, we have

conducted “a full examination of the proceedings” and conclude that “the

appeal is in fact wholly frivolous.” Flowers, 113 A.3d at 1248. Thus, we

affirm the judgment of sentence and grant counsel’s petition to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/12/2015




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