J-S45041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee
                       v.


WALID MITWALLI,

                            Appellant                No. 2470 EDA 2016


             Appeal from the Judgment of Sentence July 25, 2016
             in the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0006888-2013

BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                 FILED SEPTEMBER 06, 2017

        Walid Mitwalli (Appellant) appeals from the judgment of sentence

imposed after pleading guilty to third-degree murder. We affirm.

        The factual and procedural history of this case is as follows. On June

17, 2013, Appellant was charged with several crimes after he admitted to

stabbing his wife with a knife after she purportedly attacked him with it.1 On

November 13, 2015, Appellant entered into an open guilty plea.        He pled

guilty to third-degree murder, and the Commonwealth agreed to dismiss the

other charges and recommend a fifteen-year cap on the minimum sentence.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Specifically, on June 7, 2013, between midnight and 2:30 a.m., Appellant
stabbed his wife multiple times in her head, back, chest, abdomen, neck,
and throat while their twin six-year-old daughters were upstairs sleeping.
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       On July 25, 2016, after a lengthy sentencing hearing where Appellant

was represented by private counsel, John I. McMahon, Jr., Esquire, the trial

court sentenced Appellant to 15 to 40 years of incarceration. On August 8,

2016, Appellant pro se filed a notice of appeal.2 Appellant also requested in

forma pauperis status.3 On August 10, 2016, Attorney McMahon filed a

petition for leave of court to withdraw as counsel averring that he had been

retained only for proceedings in the Court of Common Pleas. Additionally,

Attorney McMahon requested that the Public Defender be appointed to

represent Appellant on appeal. On August 17, 2016, the trial court granted

Attorney McMahon’s petition to withdraw and appointed the Office of the

Public Defender to represent Appellant.4 In addition, the trial court ordered

____________________________________________


2
  Even where an appellant is represented by counsel, this Court is required
to accept a pro se notice of appeal. See Commonwealth v. Williams, 151
A.3d 621, 624 (Pa. Super. 2016) (“[T]his Court is required to docket a pro
se notice of appeal despite Appellant being represented by counsel.”).
3
  Since Appellant was represented by private counsel at his guilty plea
hearing and sentencing, he was not eligible to proceed on appeal in forma
pauperis without the filing of an application to do so. See Pa.R.A.P. 552(a)
(“A party who is not eligible to file a verified statement under Rule 551
(continuation of in forma pauperis status for purposes of appeal) may apply
to the lower court for leave to proceed on appeal in forma pauperis. The
application may be filed before or after the taking of the appeal[.]”).
Instantly, the trial court denied Appellant’s initial application without
prejudice because he was represented by counsel.
4
  We recognize that all of this happened after Appellant filed a notice of
appeal. However, the trial court has the authority to “grant leave to appeal
in forma pauperis” after the filing of a notice of appeal. Pa.R.A.P.
1701(b)(1).



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Appellant to file a concise statement of errors complained of on appeal

within 21 days pursuant to Pa.R.A.P. 1925. On August 23, 2016, Appellant

pro se filed a post-sentence motion.5

        On September 7, 2016, Appellant filed a motion for extension of time

to file a concise statement. On September 23, 2016, the trial court granted

Appellant’s request and provided an additional 60 days to file the concise

statement.     On September 26, 2016, Appellant filed a motion for remand

with this Court in order to permit Appellant to file a post-sentence motion.6

On November 25, 2016, Appellant filed with the trial court a motion to

accept a late-filed concise statement.7          That concise statement reiterated

Appellant’s request to file a post-sentence motion nunc pro tunc in order to

permit Appellant to challenge the discretionary aspects of his sentence.8 On

____________________________________________


5
  Because “Appellant was represented by counsel at the time he filed his pro
se motion for reconsideration[, it] was a nullity.” Commonwealth v. Reid,
117 A.3d 777, 781 (Pa. Super. 2015).
6
  On October 31, 2016, this Court denied Appellant’s request without
prejudice.
7
    Appellant’s concise statement was due on November 22, 2016.
8
  “[I]ssues challenging the discretionary aspects of sentencing must be
raised in a post-sentence motion or by raising the claim during the
sentencing proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived. Commonwealth v. Mann, 820 A.2d 788,
794 (Pa. Super. 2003) (internal citation omitted). Instantly, Appellant
neither raised a discretionary-aspects-of-sentence claim at sentencing, see
N.T., 7/25/2016, at 221, nor filed timely a post-sentence motion.




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December 1, 2016, the trial court issued an opinion concluding that it was

not necessary to permit Appellant to file a late concise statement because

the discretionary-aspects-of-sentence claim was not preserved in a post-

sentence motion. See Trial Court Opinion, 12/1/2016, at 3-4.

       On appeal, Appellant requests, once again, that this Court remand this

case to permit him to file a post-sentence motion nunc pro tunc so that he

can challenge the discretionary aspects of his sentence. Appellant’s Brief at

6.   The Commonwealth responds by arguing that Appellant’s request is

merely a premature attempt to resolve a claim for the ineffective assistance

of   trial    counsel   for   failing     to     file   a   post-sentence    motion.   See

Commonwealth’s Brief at 9-14.

       “[A]s a general rule, a petitioner should wait to raise claims of

ineffective     assistance     of       trial    counsel      until   collateral   review.”

Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002).                          Thus, to the

extent Appellant is arguing that trial counsel was ineffective for failing to file

a post-sentence motion, we agree with the Commonwealth that such a claim

must be deferred until collateral review.

       We address, however, Appellant’s contention that we should remand

this case for the filing of a post-sentence motion nunc pro tunc due to a

breakdown in the court system. According to Appellant, “the only reason a

[post-sentence motion] was not timely filed was [because] Appellant was

placed in restrictive housing and the trial court did not timely appoint the


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Public Defender’s Office before the ten day period to file post[-]sentence

motions expired.” Appellant’s Brief at 12. Appellant goes on to argue that

the

      Public Defender’s Office was not appointed until August 17,
      2016, which was a date twelve days after the limitations period
      for post sentence motions had expired and after Appellant had
      inadvertently filed a notice of appeal, divesting the lower court of
      jurisdiction to hear the motion. Appellant was without counsel at
      a critical point in the proceedings due to the trial court’s failure
      to timely appoint the Public Defender’s Office which caused a
      “fraud or breakdown” in the court system.

Appellant’s Brief at 15 (unnecessary capitalization omitted).

      “The courts of this Commonwealth have held that a court breakdown

occurred in instances where the trial court, at the time of sentencing, either

failed to advise Appellant of his post-sentence and appellate rights or

misadvised him.” Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa.

Super. 2007). However, Appellant does not argue that the trial court either

failed to advise or misadvised Appellant of his post-sentence rights.

Moreover, a review of the record reveals that Appellant was advised

adequately of those rights. See N.T., 7/25/2016, at 208 (advising Appellant

that he had ten days to file a post-sentence motion in writing with a copy to

the District Attorney’s Office).      Moreover, Appellant’s claim that he

“inadvertently” filed a notice of appeal is nonsense. Appellant, after having

listened to the trial court read his post-sentence an appellate rights, decided

to file a notice of appeal. Thus, we cannot agree with Appellant that he is

entitled to a remand from this Court to permit him to file a post-sentence

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motion nunc pro tunc due to a breakdown in the court system. Additionally,

Appellant does not point to any authority and has not convinced us that

there was any breakdown which would permit the filing of a post-sentence

motion nunc pro tunc under these circumstances.

     Because Appellant has presented no issue on appeal that permits us to

disturb his judgment of sentence, we affirm his judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/2017




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