J-A25029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KATHLEEN HAYDU,                            :
                                               :
                       Appellant               :   No. 3732 EDA 2017

            Appeal from the Judgment of Sentence October 20, 2017
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-SA-0000058-2017


BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY PANELLA, J.:                                FILED MAY 06, 2019

        Kathleen Haydu appeals from the judgment of sentence entered in the

Bucks County Court of Common Pleas following her guilty plea to the summary

offense of driving while operating privilege is suspended or revoked for driving

under the influence (“DUI”).1 The trial court concluded Haydu waived all issues

on appeal based, in part, on her failure to preserve the issues in her pro se

Rule 1925(b) statement. Because the trial court considered Haydu’s pro se

Rule 1925(b) statement while she was still represented by counsel, we remand

this matter for the consideration of Haydu’s counseled Rule 1925(b) statement

and a new Rule 1925(a) opinion.

        On April 8, 2016, Haydu was cited for driving while operating privilege

is suspended or revoked for DUI. After filing a summary appeal, Haydu

____________________________________________


1   75 Pa.C.S.A. § 1543(b)(1)(i).
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obtained the representation of the public defender’s office. Ultimately, she

entered a guilty plea on October 20, 2017 in exchange for 60 days’

imprisonment to be served concurrently to an identical conviction at CP-09-

SA-0000195-2017. Despite her continuing representation by plea counsel,

Haydu timely filed a pro se notice of appeal.2 On December 1, 2017, the trial

court ordered Haydu to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). This order was not served on plea

counsel or the public defender’s office. Haydu sent the trial court a pro se Rule

1925(b) statement.3

       On January 2, 2018, the trial court filed an opinion pursuant to Pa.R.A.P.

1925(a).The trial court determined that Haydu failed to serve her notice of

appeal on the trial court, order transcripts, or preserve any issues in her pro

se Rule 1925(b) statement. It therefore concluded that all of her appellate

issues were waived. See Trial Court Opinion, 1/2/18, at 4-7. This Court

dismissed Haydu’s appeal following her failure to file an appellate brief.

       However, in April of 2018, this Court sua sponte reinstated Haydu’s

appeal after discovering she had been represented by counsel at her guilty


____________________________________________


2The clerk of courts forwarded Haydu’s pro se notice of appeal to the public
defender’s office on November 30, 2017.

3 Haydu’s pro se Rule 1925(b) statement was actually a letter sent by Haydu
to the trial court. However, the trial court considered Haydu’s letter to be her
attempt to comply with Pa.R.A.P. 1925(b). See Trial Court Opinion, 1/2/18,
at 1. Therefore, we shall refer to this letter as such.


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plea. Counsel filed a motion for transcripts and an amended Rule 1925(b)

statement. Further, counsel filed an appellate brief with this Court.

      Prior to reaching the merits of the instant appeal, we are compelled to

note the array of procedural defects inherent within. Rule 120(A)(4) of our

Rules of Criminal Procedure provides that “[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). Well-established Pennsylvania law provides that a defendant is not

entitled to file documents pro se while represented by an attorney. See

Commonwealth v. Ellis, 626 A.2d 1137, 1141 (Pa. 1993) (defendant does

not have the constitutional right to self-representation and counseled

representation at the trial or appellate level). Therefore, we generally treat

pro se filings while an appellant is represented by counsel as legal nullities.

See Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010) (reiterating that

hybrid representation is not permitted).

      Instantly,   the   record   reflects   that   the   public   defender’s   office

represented Haydu at the time of her guilty plea. There is no indication that

the public defender’s office was permitted to withdraw representation

following the plea, or that Haydu requested to proceed pro se. As Pennsylvania

does not permit hybrid representation, it was improper for Haydu to file a pro

se notice of appeal and a pro se Rule 1925(b) statement. Further, the trial

court erred by serving the order directing compliance with Rule 1925(b) on

Haydu while she was still represented by counsel.

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       Despite the errors noted above, we decline to quash the appeal. Because

an appellant has the right of appeal under Article 5, section 9 of the

Pennsylvania Constitution, we are required to address pro se notices of appeal

filed while an appellant is represented by counsel. See Commonwealth v.

Williams, 151 A.3d 621, 624 (Pa. Super. 2016). However, because Haydu

was still represented by counsel at the time she filed her pro se Rule 1925(b)

statement, this pro se filing was a legal nullity.4 See Ali, 10 A.3d at 293.

Accordingly, we are constrained to remand this case and its record to the trial

court for consideration of Haydu’s counseled Rule 1925(b) statement.5 We

direct the trial court to file a Rule 1925(a) opinion addressing the issues raised

in Haydu’s counseled Rule 1925(b) statement within 30 days of the date of

this memorandum. See Commonwealth v. DeJesus, 868 A.2d 379, 381


____________________________________________


4 Even if this letter were not a nullity, Haydu’s pro se Rule 1925(b) statement
consists of rambling asides and is largely unintelligible; therefore, it does not
comply with Rule 1925(b)’s mandate. See Commonwealth v. Hansley, 24
A.3d 410, 415 (Pa. Super. 2011) (stating “the Rule 1925(b) statement must
be ‘specific enough for the trial court to identify and address the issue [an
appellant] wishe[s] to raise on appeal[]’ ”)(citation omitted). Further, this
letter was not file stamped with the court of clerks, but was sent directly to
the trial judge. Our Supreme Court has held that this is not sufficient to comply
with Rule 1925(b). See Commonwealth v. Butler, 812 A.2d 631, 634 (Pa.
2002) (stating, “Rule 1925 is not satisfied when an appellant merely mails his
Rule 1925(b) statement to the presiding judge[]”).

5  When counsel has filed an untimely Rule 1925(b) statement and the trial
court has addressed the issues within, we are not required to remand and may
address the merits of the issues presented. See Commonwealth v. Burton,
973 A.2d 428, 433 (Pa. Super. 2009). However, the trial court did not address
Haydu’s counseled issue on appeal in its 1925(a) statement, as Haydu did not
file her counseled 1925(b) statement until months later.

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(Pa. 2005) (holding trial court’s failure to discuss appellant’s claims required

remand for issuance of an adequate opinion in accordance with Pa.R.A.P.

1925(a)). Upon return of the record to this Court, we direct our Prothonotary

to establish a new briefing schedule.

      Case remanded for further proceedings consistent with this decision.

Rule 1925 opinion to be filed within 30 days of the date of this memorandum.

Jurisdiction retained.
 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/19




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