J-S47042-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                  Appellee                :
                                          :
                     v.                   :
                                          :
TROY DANIEL LANGTRY,                      :
                                          :
                  Appellant               : No. 470 MDA 2015

              Appeal from the PCRA Order Entered February 9, 2015,
                in the Court of Common Pleas of Schuylkill County,
               Criminal Division, at No(s): CP-54-CR-0000514-2010

BEFORE:       ALLEN, OTT, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                   FILED AUGUST 14, 2015

      Troy Daniel Langtry (Appellant) appeals from the order denying his

petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-

9546. We affirm.

      On March 8, 2011, Appellant was found guilty by a jury of two counts

of recklessly endangering another person (REAP) and one count each of

possession of drug paraphernalia and fleeing or attempting to elude a police

officer. On April 25, 2011, the trial court imposed a sentence, in relevant

part, of three to six years’ incarceration for the fleeing and eluding

conviction.

      On August 16, 2012, Appellant filed pro se a “Motion to Correct

Sentence,” wherein he alleged that his sentence on the fleeing and eluding

conviction was illegal. On October 8, 2012, the trial court denied Appellant’s



*Retired Senior Judge assigned to the Superior Court.
J-S47042-15


motion.     Appellant timely appealed to this Court. On September 4, 2013,

this Court vacated the order denying Appellant’s motion and remanded to

the lower court “to determine, within twenty-one days of this memorandum,

whether Appellant is entitled to counsel and/or desires counsel, and if so, to

appoint counsel and allow him or her to file an amended PCRA petition or

letter [pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc)].”     Commonwealth v. Langtry, 87 A.3d 372 (Pa. Super. 2013)

(unpublished memorandum at 5-6).            This Court further stated that if, on

remand, Appellant indicated he wished to proceed pro se, the court should

conduct a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81

(Pa. 1988).

        The PCRA Court appointed Attorney Michael Fiorillo to represent

Appellant.1     The PCRA court conducted a hearing on December 18, 2014;

and, on January 13, 2015, counsel filed a memorandum in support of

Appellant’s PCRA petition.2       In that memorandum, counsel contended that

the August 16, 2012 PCRA petition should be deemed timely-filed due to the

following circumstances.



1
    There is no order to this effect in the certified record.
2
  The record does not demonstrate why it took over a year to conduct a
PCRA hearing in this case, particularly in light of the fact that an amended
PCRA petition was not filed.


                                         -2-
J-S47042-15


              As stated at the PCRA hearing, [Appellant] asked his
        counsel to file a post-sentence motion challenging the sentence
        on fleeing and alluding [sic]. [Appellant], believing that he had
        been abandoned by [trial counsel], filed his own motion. As
        stipulated by the district attorney’s office under the [prisoner]
        mailbox rule, [Appellant’s] motion was mailed on May 3, 2011.
        The motion was received and stamped by the Schuylkill County
        Clerk of Courts on May 6, 2011. That motion was marked as an
        exhibit at the PCRA hearing.       That motion challenged the
        sentence on the fleeing and alluding [sic] charge as being illegal.

              There was no action taken on the motion. Pursuant to
        Rule of Criminal Procedure 720(b)(3)(a) if no action is taken on
        the motion it is deemed denied after 120 days.

              [Appellant], who has no legal background, was unaware of
        what was occurring with his post-sentence motion. Ultimately
        after doing his own research, he filed a second motion to correct
        his sentence on August 16, 2012 (which actually would be within
        one year of when his first Post-Sentence Motion would have
        been deemed denied).

Memorandum of Law, 1/13/2015, at 2 (unnumbered).

        In that memorandum, counsel also addressed the merits of Appellant’s

claim arguing that his sentence is illegal. On February 9, 2015, the PCRA

court denied Appellant’s PCRA petition on its merits. Appellant timely filed a

notice of appeal. Both Appellant and the PCRA court complied with Pa.R.A.P.

1925.

        On appeal, Appellant sets forth two issues for our review.

        [1.] Whether the [PCRA] court committed error when it denied
        Appellant’s post conviction relief that challenged the imposition
        of any illegal sentence for Appellant’s conviction for violating
        section 3733 of Pennsylvania’s vehicle code?




                                       -3-
J-S47042-15


        [2.] Whether [Appellant] received an illegal sentence of 36-72
        months for a violation of Pennsylvania’s vehicle code for fleeing
        and eluding when there is a statutory limitation that a person
        convicted of a second or subsequent violation of the fleeing and
        eluding section can not be imprisoned for more than six months?

Appellant’s Brief at 8.

        Before we reach the merits of Appellant’s issues, we consider the

timeliness of Appellant’s PCRA petition.

        Generally, a PCRA petition must be filed within one year from the
        date a judgment becomes final. There are three exceptions to
        this time requirement: (1) interference by government officials
        in the presentation of the claim; (2) newly discovered facts; and
        (3) an after-recognized constitutional right. When a petitioner
        alleges and proves that one of these exceptions is met, the
        petition will be considered timely. A PCRA petition invoking one
        of these exceptions must be filed within 60 days of the date the
        claims could have been presented. The timeliness requirements
        of the PCRA are jurisdictional in nature and, accordingly, a PCRA
        court cannot hear untimely petitions.

Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012)

(citations and quotation marks omitted).

        Appellant’s sentence was pronounced in open court on April 25, 2011.

Assuming arguendo that Appellant did not file timely a post-sentence

motion, his judgment of sentence became final 30 days later, on May 25,

2011. Thus, Appellant had until May 24, 2012 to file timely a PCRA petition.

Therefore, Appellant’s Motion to Correct Sentence, filed on August 16, 2012,

would     be   untimely   unless   Appellant   pled   and   proved   one   of   the

aforementioned exceptions.




                                       -4-
J-S47042-15


      However, we must determine the effect of Appellant’s pro se May 3,

2011 filing.   That filing is not part of the certified record, but the PCRA

hearing reveals that this document exists because it was introduced as an

exhibit at the hearing. N.T., 12/18/2014, at 3.3

      Generally speaking, “there     is no    constitutional right   to   hybrid

representation either at trial or on appeal.” Commonwealth v. Ellis, 696

A.2d 1137, 1139 (Pa. 1993).      Furthermore, pro se filings by represented

defendants constitute legal nullities. See Commonwealth v. Ali, 10 A.3d

282 (Pa. 2010). However, an exception to this general rule relates to post-

sentence motions under certain circumstances. In Commonwealth v.

Leatherby, 116 A.3d 73 (Pa. Super. 2015)., a panel of this Court held that

Leatherby’s pro se post-sentence motion did not constitute a legal nullity

where

           [i]t is clear from the sentencing transcripts that there was,
      at a minimum, confusion as to who would file post-sentence
      motions on Leatherby’s behalf and, indeed, trial counsel failed to

3
  Testimony also revealed that this document was date stamped on May 6,
2011 by the clerk of courts. N.T., 12/18/2014, at 3.             Pursuant to
Pa.R.Crim.P. 576(A)(4), “In any case in which a defendant is represented by
an attorney, if the defendant submits for filing a written motion, notice, or
document that has not been signed by the defendant’s attorney, the clerk of
courts shall accept it for filing, time stamp it with the date of receipt and
make a docket entry reflecting the date of receipt, and place the document
in the criminal case file. A copy of the time stamped document shall be
forwarded to the defendant’s attorney and the attorney for the
Commonwealth within 10 days of receipt.” The certified docket entries do
not contain a docket entry reflecting any filing in May 2011; thus, it is clear
that the clerk of courts failed to comply with Pa.R.Crim.P. 576.


                                     -5-
J-S47042-15


      file those motions as promised.           Under the particular
      circumstances of this case, in which Leatherby was effectively
      abandoned by counsel and the trial court failed to timely appoint
      new counsel, Leatherby’s pro se filing does not offend
      considerations of hybrid representation. Leatherby should not
      be precluded from appellate review based on what was, in effect,
      an administrative breakdown on the part of the trial court.
      Accordingly, we find that the time within which to file an appeal
      was tolled by Leatherby’s pro se motion, and we will consider the
      appeal timely.
                  5
                    Among the policy considerations behind the
            prohibition of hybrid representation are the desire
            not to overwhelm an already overburdened court
            system and the salutary effect of expert, focused
            appellate advocacy. Neither of these concerns [is]
            implicated in this case.

Leatherby, 116 A.3d at *3 (emphasis in original; footnote in original;

citations omitted).

      In this case, Appellant timely sent to the clerk of courts pro se a post-

sentence motion, which was not docketed in accordance with Pa.R.Crim.P.

576. Furthermore, a review of the sentencing transcript reveals confusion

as to whether Assistant Public Defender Andrea Thompson would continue to

represent Appellant.

            THE COURT: Okay. All right. You do have the right to
      appeal if you feel that the sentence was unfair or illegal or that it
      was excessive. If you do, you have 30 days in which to file an
      appeal within -- in writing -- in writing to the Superior Court
      down in the Clerk of Courts Office as well as you must enter a
      written post-sentence motion with this Court, Judge Miller, within
      10 days.




                                      -6-
J-S47042-15


              If you can’t afford a lawyer, then you can reapply; and the
        Public Defender’s Office would continue to represent you due to
        your financial situation.

N.T., 4/25/2011, at 15.

        The trial court’s instructions were confusing at best.         The Rules of

Criminal Procedure are clear, “[a]n attorney who has been retained or

appointed by the court shall continue such representation through direct

appeal or until granted leave to withdraw by the court[.]” Pa.R.Crim.P.

120(A)(4). While there may be an administrative process within the Office

of Public Defender to ensure a defendant is still financially eligible, that does

not affect the obligation of counsel to represent the defendant on appeal

until   such   time   counsel   is   granted   leave   to   withdraw   pursuant   to

Pa.R.Crim.P. 120(B).

        The docket entries do not reflect that Attorney Thompson asked for, or

was granted, permission to withdraw. Thus, the confusing nature of the trial

court’s instructions was further compounded by the clerk of courts’ failure to

comply with Pa.R.Crim.P. 576.          Accordingly, due to this “administrative

breakdown” we conclude that it would be unjust to consider Appellant’s pro

se timely-filed post-sentence motion a nullity under these circumstances.

Leatherby, 116 A.3d at *3.

        “If the judge fails to decide [a timely-filed post-sentence] motion

within 120 days, or to grant an extension as provided in paragraph




                                        -7-
J-S47042-15


(B)(3)(b), the motion shall be deemed denied by operation of law.” Pa. R.

Crim. P. 720(B)(3)(a).    However, due to the administrative breakdown at

play in this case, Appellant never received notice pursuant to Pa.R.Crim.P.

720(B)(3)(c) from the clerk of courts informing him that his motion was

deemed to be denied by operation of law and he had 30 days in which to file

an appeal. See Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super.

2003) (“[W]here the clerk of courts does not enter an order indicating that

the post-sentence motion is denied by operation of law and notify the

defendant of same, a breakdown in the court system has occurred and we

will not find an appeal untimely under these circumstances.”).

      Thus, we hold that because Appellant timely filed a post-sentence

motion, and because this timely post-sentence motion was never acted upon

by the court, it would not be possible to consider Appellant’s August 16,

2012 motion to correct sentence untimely in any fashion under the PCRA

when it is completely unclear when Appellant’s judgment of sentence

became final.4




4
  Moreover, at the PCRA hearing, counsel represented that Appellant’s May
2011 filing raised issues concerning the “legality of the sentence as it related
to the fleeing and eluding[.]” N.T., 12/18/2014, at 3. Specifically, counsel
argued that “the maximum that could have been imposed would have been
six months because [Appellant] fell in exactly the definition, he’s been
convicted of it before and what the statutory section says.” Id. at 7. These
are essentially the same issues raised in the August 16, 2012 filing and
raised on appeal.


                                     -8-
J-S47042-15


      We now turn to the merits of Appellant’s claims where he contends his

sentence for his fleeing and eluding conviction is illegal.

      Issues relating to the legality of a sentence are questions of law
      to which our standard of review is de novo and our scope of
      review is plenary. The Pennsylvania Supreme Court has stated
      that an illegal sentence is one that exceeds the statutory
      maximum. Furthermore: [u]nder Pennsylvania law, a challenge
      to the validity of a sentence is a challenge to its legality. If a
      court does not possess statutory authorization to impose a
      particular sentence, then the sentence is illegal and must be
      vacated.

Commonwealth v. Bowen, 55 A.3d 1254, 1265 (Pa. Super. 2012)

(internal quotations and citations omitted).

      Appellant was charged with violating 75 Pa.C.S. § 3733(a), which

provides as follows:

             (a) Offense defined.--Any driver of a motor vehicle who
      willfully fails or refuses to bring his vehicle to a stop, or who
      otherwise flees or attempts to elude a pursuing police officer,
      when given a visual and audible signal to bring the vehicle to a
      stop, commits an offense as graded in subsection (a.2).

                                          ***

            (a.2) Grading.--

                   (1) Except as provided in paragraph (2), an
            offense    under    subsection    (a)    constitutes a
            misdemeanor of the second degree. Any driver upon
            conviction shall pay an additional fine of $500. This
            fine shall be in addition to and not in lieu of all other
            fines, court expenses, jail sentences or penalties.

                  (2) An offense under subsection (a) constitutes
            a felony of the third degree if the driver while fleeing




                                      -9-
J-S47042-15


            or attempting to elude a police officer does any of
            the following:

                       (i) commits a violation of section
                 3802 (relating to driving under influence
                 of alcohol or controlled substance);

                       (ii) crosses a State line; or

                        (iii) endangers a law enforcement
                 officer or member of the general public
                 due to the driver engaging in a high-
                 speed chase.

      75 Pa.C.S. § 3733(a) and (a.2).

      Appellant contends that he “was not charged with the ‘aggravating’

section of § 3733[(a.2)(2)] as discussed in the case of Commonwealth v.

Bowen, 55 A.3d 1254 (Pa. Super. 2012).” Appellant’s Brief at 14. In that

case, Bowen claimed his sentence of 42 to 84 months’ incarceration for his

second violation under section 3733 was illegal due to a conflict between

section 3733 and section 6503.5     Section 6503 provides the following, in

relevant part:

      (a) General offenses.—Every person convicted of a second or
      subsequent violation of any of the following provisions shall be
      sentenced to pay a fine of not less than $200 nor more than
      $1,000 or to imprisonment for not more than six months, or
      both:

                                     ***




5
   Third-degree felonies are generally punishable by up to 7 years’
incarceration. 18 Pa.C.S. § 1101.


                                    - 10 -
J-S47042-15


            Section 3733 (relating to fleeing or attempting to
            elude police officer).

75 Pa.C.S. § 6503(a).

      After examining the legislative intent and the concepts of general and

specific statutes, the Bowen court concluded the following:

      [I]n resolving the conflict between Section 6503 and Section
      3733(a.2)(2), we hold that Section 3733(a.2)(2) prevails, and
      that the maximum sentence of six months’ incarceration set
      forth at Section 6503 for a second or subsequent violation of
      Section 3733 does not apply to a second or subsequent violation
      of Section 3733(a.2)(2).

55 A.3d at 1270.

      In other words, Appellant is suggesting that he was not convicted of

fleeing and eluding while being under the influence, crossing a state line, or

endangering anyone by forcing a high-speed chase. One of these elements

is necessary to sustain a conviction under this subsection.          Appellant’s

argument is belied by the record.

      First, count 7 of the Criminal Information states that Appellant was

being charged with Felony 3 fleeing or attempting to elude a police officer.

Criminal Information, 1/26/2010. Furthermore,

            [t]he [trial] court had specifically instructed the jury on the
      charges of fleeing or attempting to elude a police officer and
      instructed the jury further that if they find the Commonwealth
      proved the elements of this sentence the jury must then
      determine beyond a reasonable doubt that the action of
      [Appellant] in fleeing or attempting to elude the police officers
      endangered a law enforcement officer due to the driver engaging
      in a high speed chase in accord with [75 Pa.C.S. § 3733(a.2)].



                                     - 11 -
J-S47042-15


     The jury found [Appellant] guilty on both aspects of the charges
     set forth in the verdict slip.

PCRA Court Opinion, 2/9/2015, at 3 (unnecessary capitalization omitted;

footnote omitted).

     Because Appellant was charged with and the jury found him guilty

beyond a reasonable doubt of the aggravated section of section 3733, the

trial court was authorized to sentence Appellant consistent with a third-

degree felony. Accordingly, we affirm the order denying Appellant relief.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/14/2015




                                   - 12 -
