J-S42001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

JOHN GIBSON

                            Appellant                   No. 2101 MDA 2016


              Appeal from the Judgment of Sentence May 26, 2016
              In the Court of Common Pleas of Huntingdon County
              Criminal Division at No(s): CP-31-CR-0000099-2015


BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                             FILED OCTOBER 20, 2017

        Appellant, John Gibson, appeals, pro se, from his judgment of

sentence entered May 26, 2016, as made final by the entry of a November

16, 2016 order that denied his post-sentence motions by operation of law.

We remand with instructions.

        The record reveals the following facts. On March 4, 2016, Appellant

pled guilty to driving under the influence—highest rate of alcohol1 (“DUI-

highest rate”) and driving with blood alcohol concentration (“BAC”) of .02 or

greater while license is suspended.2           On May 26, 2016, the trial court

sentenced Appellant to 30 to 60 months’ imprisonment on the DUI-highest
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1   75 Pa. C.S.A. § 3804(c).

2   75 Pa. C.S.A. § 1543(b)(1.1)(i).
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rate charge, together with a consecutive term of 90 days’ imprisonment for

the license suspension charge. Appellant filed a timely post-sentence motion

on June 2, 2016.3        On August 16, 2016, Appellant filed a supplemental

post-sentence motion in the nature of a motion in arrest of judgment. In

that motion, counsel alleged that the decision of the United States Supreme

Court in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016) cast doubt on

Appellant’s    DUI-highest      rate    conviction.    Pursuant   to   Pa.R.Crim.P.

720(B)(3)(b), counsel also requested a 30-day extension of time in which to

decide Appellant’s post-sentence motions.             The trial court granted the

motion for extension of time on August 17, 2016 and, ultimately, Appellant’s

post-sentence motions were denied by operation of law on October 31,

2016. See Pa.R.Crim.P. 720(B)(3)(b). The clerk of courts, however, did not

enter the order denying Appellant’s post-sentence motions until November

16, 2016, at which time the clerk forwarded notice of the court’s denial of

Appellant’s motions to trial counsel.
      On December 6, 2016, trial counsel filed a motion seeking leave to

withdraw, appointment of new counsel for Appellant, and reinstatement of

Appellant’s direct appellate rights.4 Trial counsel’s submission also included

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3  In his counseled post-sentence motion, Appellant challenged the
discretionary aspects of his sentence on grounds that the punishment was
excessive.

4 Appellant’s time to file an appeal had not yet run on December 6, 2016.
Further discussion of the timeliness issue follows infra.



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an application for leave to allow Appellant to proceed in forma pauperis. On

December 14, 2016, Appellant filed a pro se motion (captioned as a motion

for withdrawal of counsel) seeking the appointment of a new attorney and

leave to proceed in forma pauperis.5

       Appellant filed a pro se notice of appeal dated December 15, 2016.

The envelope attached to Appellant’s notice bore a post-mark indicating that

prison officials and/or postal authorities received the mailing on December

16, 2016. The clerk of courts docketed the notice of appeal on December

19, 2016.6

       On January 3, 2017, the trial court, pursuant to Pa.R.A.P. 1925(b),

ordered Appellant’s counsel7 to file a concise statement of errors complained

of on appeal (“concise statement”) within 21 days.        In response, both

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5 Appellant’s motion cited Pa.R.Crim.P. 122 in support of his request for the
appointment of new counsel. Appellant’s Motion, 12/14/16, at 1. In
relevant part, the rule states: “a motion for change of counsel by a
defendant to whom counsel has been assigned shall not be granted except
for substantial reasons.” Pa.R.Crim.P. 122(C). Appellant’s reliance on Rule
122 is misplaced since he employed the services of privately retained
counsel, not appointed counsel, before the trial court. As we shall discuss,
however, the significance of Appellant’s reference to Rule 122 is that he
sought representation when he filed the December 14, 2016 motion and that
he did not seek to proceed pro se at that time.

6 A handwritten notation at the bottom of Appellant’s notice of appeal
indicates that the filing was forwarded to trial counsel and this Court on
December 21, 2016.

7 The docket indicates that the court forwarded its order only to Appellant’s
counsel.



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Appellant and trial counsel filed concise statements.             Counsel filed his

concise statement on January 23, 2017 and Appellant filed a separate

concise statement docketed on January 27, 2017.8 The concise statements

from Appellant and his counsel are dated January 23, 2017 and contain

verifications that the information contained therein is true and correct. On

February 6, 2017, the trial court issued an order allowing counsel to

withdraw. In its Rule 1925(a) opinion filed on February 15, 2017, the trial

court addressed the issues raised in Appellant’s pro se concise statement.

Appellant submitted a pro se brief to this Court to aid our resolution of the

issues he raises on appeal.

       Appellant presents three issues for our review.

       I.     Has the sentencing court abused it[s] discretion by
              imposing sentences beyond the guidelines?

       II.    Was Appel[l]ant[‘]s          plea   knowing,   intelligent   and
              voluntary?[]

       III.   Has the trial court erroneously determined, that the U.S.
              Supreme Court ruling decided at the time Appellant[‘]s
              post-sentence motions were pending was not applicable to
              his situation?[]

Appellant’s Brief at 4.

       We are unable to reach the merits of Appellant’s claims, as this case

presents a number of procedural concerns. First, questions exist as to the

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8 A second copy of Appellant’s concise statement was docketed on February
1, 2017.



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timeliness of this appeal.     It is undisputed that we may examine the

timeliness of an appeal on our own motion since the issue relates to our

jurisdiction to undertake appellate review.   See In re Adoption of W.R.,

823 A.2d 1013, 1015 (Pa. Super. 2003).        Our rules of criminal procedure

make clear that, where a defendant files a timely post-sentence motion, he

has 30 days from the entry of the order denying the motion by operation of

law in which to file his notice of appeal. Pa.R.Crim.P. 720(A)(2)(b).

      Here,   Appellant’s   timely   post-sentence   and   supplemental   post-

sentence motions were denied by operation of law on October 31, 2016.

However, the clerk of courts failed to enter the order denying Appellant’s

post-sentence motions until November 16, 2016, when the clerk mailed

notice of the order to trial counsel. This failure constitutes a breakdown in

the processes of the court. See Commonwealth v. Khalil, 806 A.2d 415,

420 (Pa. Super. 2002). Therefore, Appellant had 30 days from the date the

order was entered, i.e. November 16, 2016, in which to file a timely notice

of appeal. Id.; Pa.R.Crim.P. 720 cmt. (“[w]hen a defendant files a timely

post-sentence motion, the 30-day period for the defendant's direct appeal

on all matters in that case … is triggered by … the denial of the motion by

operation of law” and the appeal period runs from the date of entry of the

order as established by Pa.R.A.P. 108); see Pa.R.A.P. 108(a)(1) (“in

computing any period of time under these rules involving the date of entry

of an order by a court or other government unit, the day of entry shall be


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the day the clerk of the court or the office of the government unit mails or

delivers copies of the order to the parties”); see also Pa.R.A.P. 903(a)

(notice of appeal must be filed within 30 days after the entry of the order

from which the appeal is taken).        Therefore, Appellant needed to file his

notice of appeal on or before December 16, 2016.

      Appellant filed a pro se notice of appeal, which the clerk of courts

docketed on December 19, 2016.          On its face, the appeal appears to be

untimely.      As we stated above, however, Appellant dated the notice of

appeal December 15, 2016 and the envelope attached to the notice bears a

post-mark dated December 16, 2016.

      At the time of filing, Appellant remained incarcerated.            Under the

prisoner mailbox rule, a notice of appeal filed by a prisoner acting pro se is

considered filed on the date it is placed into the prison mail system.

Commonwealth v. Jones, 700 A.2d 423, 425-426 (Pa. 1997). However,

the prisoner mailbox rule generally applies only when a prisoner is

unrepresented. Id. When Appellant filed his pro se notice of appeal, he still

had counsel of record.      Thus, while Appellant’s notice of appeal may have

been timely under the prisoner mailbox rule, it is unclear whether that rule

can properly be applied given that counsel remained attached to the case.

      Our prior cases offer some insight as to whether and how the prisoner

mailbox rule can properly be applied within the context of this case. It is

well-settled    that   hybrid   representation   is   heavily   disfavored   in   this


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Commonwealth. See Commonwealth v. Jette, 23 A.3d 1032, 1036 (Pa.

2011).    In fact, pro se filings submitted by counseled defendants are

generally treated as legal nullities.   Commonwealth v. Ali, 10 A.3d 282,

293 (Pa. 2010), citing Commonwealth v. Ellis, 626 A.2d 1137, 1139, 1141

(Pa. 1993). On the other hand, this Court also recognized that a counseled

defendant may act on his own behalf in order to protect important rights

where counsel remains technically attached to the case but is no longer

serving his client’s interest.   See Commonwealth v. Williams, 151 A.3d

621, 624 (Pa. Super. 2016) (Superior Court required to docket pro se notice

of appeal filed by counseled litigant); see also Commonwealth v.

Leatherby, 116 A.3d 73, 78-79 (Pa. Super. 2015) (where defendant was

effectively abandoned by counsel and trial court failed to timely appoint new

counsel, pro se post-sentence motion tolled appeal period and did not offend

considerations of hybrid representation).

      We are constrained to remand this case under the circumstances

before us. Before the expiration of the appeal period, on December 6, 2016

and December 14, 2016, respectively, trial counsel and Appellant filed

motions with the trial court seeking the discontinuation of counsel’s

involvement in this case, the appointment of new counsel, and leave to allow

Appellant to proceed in forma pauperis. These filings suggest that Appellant

intended to challenge his convictions and sentence on direct appeal and that

he sought to do so with the assistance of new counsel. The submissions also


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suggest that a breakdown in the relationship between counsel and Appellant

was beginning to occur.     The trial court, however, did not address the

motions until February 6, 2017, nearly two months after they were filed,

when it issued an order allowing counsel to withdraw but did not appoint

counsel for purposes of appeal. On remand, the trial court shall determine

whether counsel effectively abandoned Appellant following the denial of his

post-sentence motions and, if so, whether Appellant filed a protective appeal

that should be deemed timely under the prisoner mailbox rule.

     In addition to the timeliness issue, a separate matter to be considered

and resolved on remand raises issues of great importance.       “The right to

counsel in a criminal proceeding is a fundamental right guaranteed by the

Sixth Amendment of the United States Constitution and Article One, Section

Nine of the Pennsylvania Constitution.”   Commonwealth v. McDonough,

812 A.2d 504, 506 (Pa. 2002), citing Faretta v. California, 422 U.S. 806

(1975).   An indigent defendant’s right to counsel extends to proceedings

before the trial court and to any direct appeal filed as of right.   Ross v.

Moffitt, 417 U.S. 600, 610 (1974). “A trial judge has a duty to protect a

defendant's constitutional right to counsel.” McDonough, 812 A.2d at 508;

Commonwealth v. Davido, 868 A.2d 431, 437 (Pa. 2005).                We have

observed that the right to counsel can be waived only after a “penetrating

and comprehensive” colloquy establishes that the defendant has knowingly,

intelligently, and voluntarily relinquished his right to counsel.        See


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Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (“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.”); see also Commonwealth v.

Clyburn, 42 A.3d 296, 300-301 (Pa. Super. 2012).

       As we stated above, both Appellant and trial counsel filed motions in

early December 2016 seeking counsel’s detachment from this case, the

appointment of new counsel, and permission for Appellant to proceed in

forma pauperis. Despite this, the trial court did not address these motions

for nearly two months, when it granted counsel leave to withdraw without

considering     whether     Appellant     was    entitled   to   the   appointment   of

replacement counsel. Moreover, there is no transcript of a waiver-of-counsel

colloquy in the certified record and Appellant has proceeded before this

Court through the submission of a pro se brief.9 Effectively, the trial court’s

actions have deprived Appellant of his right to counsel on direct appeal

without the probing inquiry required by law and despite strong indications

that Appellant desired representation.           On remand, in addition to factual

findings regarding the timeliness of this appeal and the applicability of the

prisoner mailbox rule, the trial court shall determine, on-the-record, whether
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9 In addition, the trial court received concise statements from both trial
counsel and Appellant, but elected to address only the issues raised in
Appellant’s pro se filing.




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Appellant was entitled to the appointment of counsel and whether he

knowingly and intelligently waived his right to an attorney. If Appellant is

entitled to the appointment of counsel and he desires representation on

appeal, then the trial court shall appoint counsel and direct the filing of a

counseled concise statement and appellate brief.       The trial court shall

complete these inquiries within 45 days of the date on which our order is

filed.

         Case remanded. Jurisdiction retained.




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