J-S41004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOSHUA WILLIAMS,

                            Appellant                No. 1539 MDA 2016


            Appeal from the Judgment of Sentence August 18, 2016
               in the Court of Common Pleas of Dauphin County
              Criminal Division at No.: CP-22-CR-0002720-2012


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED AUGUST 03, 2017

        Appellant, Joshua Williams, appeals from the judgment of sentence

imposed following remand to the trial court for re-sentencing on his

conviction of robbery.1 We affirm.

        This case has a tortuous procedural history, complicated by Appellant’s

pro se filings in the trial court while he was represented by counsel.2      A


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3701(a)(1)(i).
2
 We note at the outset the well-settled principle that a criminal defendant is
not entitled to hybrid representation and trial courts are not required to
consider the pro se filings of counseled defendants. See Commonwealth
v. Blakeney, 108 A.3d 739, 763 n.21 (Pa. 2014), cert. denied, 135 S.Ct.
2817 (2015); see also Commonwealth v. Ellis, 626 A.2d 1137, 1141 (Pa.
1993); Pa.R.Crim.P. 576(A)(4).
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previous panel of this Court summarized the background of this case as

follows:

            A jury found [Appellant] guilty of robbing Michael Barna on
       the evening of March 3, 2012. On January 14, 2015, the trial
       court sentenced [Appellant] to 7—14 years’ imprisonment.
       [Appellant] filed timely post-sentence motions to modify his
       sentence on the ground that the court used the wrong
       sentencing guideline in its sentencing calculations. In an order
       docketed on February 23, 2015, the court granted [Appellant’s]
       motion.     The order stated: “This court never made a
       determination as to whether the offender possessed a deadly
       weapon[,] therefore we cannot apply the Deadly Weapon
       Enhancement. . . . The sentence is modified as follow[s]: 54—
       72 months’ imprisonment.” The order did not specify whether
       [Appellant’s] minimum term of imprisonment was 54 months, 72
       months, or somewhere in between. Nor did the order specify
       [Appellant’s] maximum term of imprisonment.

              [Appellant] filed a timely notice of appeal. The sole issue
       raised in [Appellant’s] Pa.R.A.P. 1925(b) statement and
       appellate brief is: “Whether the evidence presented at trial was
       insufficient to convict [Appellant] of the crime of robbery?”

(Commonwealth v. Williams, 2016 WL 2625676, at *1 (Pa. Super. filed

May 6, 2016) (unpublished memorandum) (footnote omitted)).

       In that appeal, this Court sua sponte considered the legality of

Appellant’s sentence.3 We:

             . . . affirm[ed] [Appellant’s] conviction, [and] remand[ed]
       for resentencing due to defects in the February 23, 2015 order
       granting [Appellant’s] post-sentence motions. This order merely
       states that [Appellant’s] minimum sentence is ‘54—72 months’
____________________________________________


3
  Challenges to an illegal sentence are non-waivable and may be raised sua
sponte by this Court. See Commonwealth v. Tanner, 61 A.3d 1043, 1046
(Pa. Super. 2013).



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       without specifying the precise number of months in his new
       minimum or maximum sentence. The Sentencing Code plainly
       directs the trial court to specify minimum and maximum periods
       of imprisonment. See 42 Pa.C.S.[A.] § 9756(b)(1) . . . We
       direct[ed] the trial court to resentence [Appellant] in a manner
       that complies with section 9756.

(Id. at *4) (footnote omitted).

       On August 18, 2016, the trial court re-sentenced Appellant to a term

of not less than five nor more than ten years’ incarceration.       Despite his

representation by court-appointed counsel, Appellant filed, on August 24,

2016,4 a pro se “Motion for Sentence Reduction Nunc Pro Tunc,” which the

trial court interpreted as a post-sentence motion, in the nature of a motion

to modify sentence.       (See Order, 9/13/16, at unnumbered page 1).       The

trial court denied the motion on September 13, 2016.        Appellant, through

counsel, filed a timely notice of appeal on September 15, 2016, and then a

timely court-ordered concise statement of errors complained of on appeal.

See Pa.R.A.P. 1925(b).

       Although counsel had already initiated this appeal, Appellant filed a pro

se notice of appeal on September 23, 2016.            The pro se appeal was

withdrawn and discontinued in this Court on November 3, 2016. However,

the trial court, upon receipt of the pro se filing and of notice of the

____________________________________________


4
  Pursuant to the prisoner mailbox rule, we deem Appellant’s pro se
documents filed on the day they were dated, rather than on the day they
were docketed. See Commonwealth v. Brandon, 51 A.3d 231, 234 n.5
(Pa. Super. 2012).




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discontinuation, issued a second order directing Appellant to file a Rule

1925(b) statement.5        Appellant filed a timely pro se concise statement on

December 1, 2016.         The trial court entered an opinion on December 20,

2016, in which it addressed the issues raised Appellant’s pro se concise

statement. See Pa.R.A.P. 1925(a); (Trial Ct. Op., at 7).6

       On appeal, in his counseled brief, Appellant raises the following issues

for review, which mirror those raised in his pro se Rule 1925(b) statement:

       1. Whether the trial court erred when it denied Appellant’s
       suppression motion?

       2. Whether the trial court erred when it denied Appellant’s
       request for nominal bail and dismissal of charges under
       Pennsylvania Rule of Criminal Procedure 600?

       3. Whether the trial court erred in allowing testimony presented
       by witness which were [sic] inconsistent to the phone records
____________________________________________


5
  The trial court appears to have acted under the mistaken belief that the
counseled appeal, rather than the pro se appeal, had been discontinued.
(See Trial Court Opinion, 12/20/16, at 2).
6
   As previously noted, Appellant is not entitled to hybrid representation.
(See supra, at *1 n.2). However, the record reflects that the trial court
accepted as valid Appellant’s pro se post-sentence motion, that it ordered
the filing of a pro se Rule 1925(b) statement, and that it addressed the
issues he raised in that statement in its opinion.            Thus, under the
circumstances of this case, we deem Appellant’s pro se filings sufficient for
issue preservation purposes. See Commonwealth v. Cooper, 27 A.3d
994, 1003 (Pa. 2011) (deeming pro se notice of appeal filed by counseled
criminal defendant valid under circumstances of procedurally complex case
and admonishing that “criminal rules are intended to provide for just
determination of every proceeding, and should be construed to secure
simplicity, fairness and elimination of delay”) (citation omitted).




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      said to be his       presented   as    evidence   corroborating   his
      statement[?]

      4. Whether the trial court erred in abusing its discretion in
      resentencing Appellant[?]

(Appellant’s Brief, at 5) (unnecessary capitalization omitted); (see also Pro

Se Rule 1925(b) Statement, 12/01/16, at unnumbered page 1).

      In his first three issues, Appellant raises allegations of trial court error

challenging his conviction.   (See Appellant’s Brief, at 5, 14-19) (claiming

trial court error in denying his pre-trial motions and in allowing certain

testimony).   However, we agree with the Commonwealth that Appellant

waived these issues by failing to raise them in his initial direct appeal. (See

Commonwealth’s Brief, at 8, 10).

      Specifically, as discussed above, Appellant already had the benefit of a

direct appeal, where he challenged only the sufficiency of the evidence to

support his robbery conviction. (See Williams, supra at *1). That appeal

resulted in this Court’s sua sponte consideration of the legality of his

sentence, and limited remand to the trial court, for resentencing. (See id.

at *4). Now, on appeal following remand, Appellant cannot again challenge

his conviction, and “the only issues reviewable . . . [are] challenges to the

sentence imposed[.]” Commonwealth v. Anderson, 801 A.2d 1264, 1266

(Pa. Super. 2002); see also Commonwealth v. Lawson, 789 A.2d 252,

253 (Pa. Super. 2001) (explaining that, “where a case is remanded to

resolve a limited issue, only matters related to the issue on remand may be

appealed.”) (citation omitted).     Therefore, Appellant’s challenges to his


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conviction, which this Court has already affirmed, “have been waived by his

failure to present them in his first appeal.” Commonwealth v. Mathis, 463

A.2d 1167, 1169 (Pa. Super. 1983) (citation omitted) (finding allegations of

trial errors waived on appeal following remand for resentencing).           Thus,

Appellant’s first three issues are not reviewable.

      In his fourth issue, Appellant challenges the discretionary aspects of

his sentence, arguing that it is excessive in light of the facts and

circumstances of this case.    (See Appellant’s Brief, at 12-13, 19-20).      He

claims that the trial court abused its discretion by failing to consider

adequately his character, background, and rehabilitative needs. (See id.).

Preliminarily,

      [w]e note that [t]he right to appellate review of the discretionary
      aspects of a sentence is not absolute.         Rather, where an
      appellant challenges the discretionary aspects of a sentence, the
      appeal should be considered a petition for allowance of appeal.

                                  *    *    *

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test:

                  [W]e 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.A.
            § 9781(b).

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Commonwealth v. Hicks, 151 A.3d 216, 226 (Pa. Super. 2016), appeal

denied, 2017 WL 1735542 (Pa. filed May 3, 2017) (case citations and

quotation marks omitted).

      In the instant case, Appellant timely appealed, preserved his claim in

the trial court by filing a post-sentence motion, and included a Rule 2119(f)

statement in his brief. With respect to the fourth requirement, “this Court

has held that an excessive sentence claim—in conjunction with an assertion

that the court failed to consider mitigating factors—raises a substantial

question.”   Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super.

2014), appeal denied, 105 A.3d 736 (Pa. 2014) (citations omitted).

Therefore, we will review Appellant’s claim on the merits.

      Our standard of review is as follows:

              Sentencing is a matter vested in the sound discretion of
      the sentencing judge, and a sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. In this context, an
      abuse of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Solomon, 151 A.3d 672, 677 (Pa. Super. 2016), appeal

denied, 2017 WL 1414955 (Pa. filed Apr. 19, 2017) (citations omitted).

      Here, at the re-sentencing hearing, defense counsel requested a

sentence at the lowest end of the guideline range, and emphasized

Appellant’s successful participation in rehabilitative programs while in prison

and his willingness to find employment and continue treatment and


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counseling. (See N.T. Resentencing, 8/18/16, at 3-4). Counsel pointed out

that Appellant is the father of three children, and that he has accepted

responsibility for his actions. (See id.). Appellant addressed the court and

expressed remorse for his actions and his desire to make positive changes in

his life for himself and his family. (See id. at 4-5). The court stated that it

was taking into account the fact that Appellant has been incarcerated in this

matter since 2012, and imposed a sentence at the lower end of the standard

guideline range. (See id. at 6; see also Trial Ct. Op., at 13).

      Our review of the record demonstrates that the trial court was well

aware of Appellant’s background and the circumstances of this case, and we

discern no abuse of discretion in its imposition of his sentence.         See

Solomon, supra at 677. Appellant’s final issue lacks merit. Accordingly,

we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/2017




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