J-S12011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DERREL REGINALD CINTRON

                            Appellant                  No. 1133 EDA 2015


                  Appeal from the PCRA Order March 19, 2015
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0002627-2013
                                          CP-39-CR-0002971-2013


BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                            FILED JANUARY 28, 2016

        Appellant, Derrel Reginald Cintron, appeals from the March 19, 2015

order dismissing his pro se post-sentence motion, which the trial court

treated as his first petition for relief filed pursuant to the Post Conviction

Relief Act, 42 Pa.C.S.A. §§ 9541-9546.         Appellant has also filed a motion

with this Court, seeking to “quash” his own appeal. After careful review, we

grant Appellant’s motion in part, deny it in part, and vacate the trial court’s

order.

        We summarize the relevant procedural history of this case as follows.

On June 9, 2014, Appellant entered a negotiated guilty plea to one count of

attempted murder, aggravated assault, and firearms not to be carried
____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
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without a license.1 Pursuant to the plea agreement, that same day, the trial

court imposed a sentence of 10 to 20 years’ imprisonment.            On June 9,

2014, trial counsel filed a timely post-sentence motion, which the trial court

denied on June 24, 2014.            However, on June 23, 2014, the day prior,

Appellant filed a pro se post-sentence motion.

        On July 11, 2014, while Appellant’s direct appeal period was still

pending, the trial court entered an order treating Appellant’s pro se post-

sentence motion as a PCRA petition and appointing new counsel to represent

Appellant. On August 22, 2014, Appellant filed a motion to waive his right

to counsel and proceed pro se, which the trial court granted after a hearing

and an oral and written colloquy on October 3, 2014. That same day, the

trial court entered an order directing Appellant to file an amended PCRA

petition within 120 days, but Appellant did not do so.       On February 26,

2015, the trial court entered an order notifying Appellant of its intent to

dismiss his PCRA petition without a hearing pursuant to Pennsylvania Rule of

Criminal Procedure 907. Appellant filed a response on March 17, 2015, and

the trial court entered an order dismissing Appellant’s PCRA petition on

March 19, 2015. On April 6, 2015, Appellant filed a timely pro se notice of




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1
    18 Pa.C.S.A. §§ 901(a), 2702(a)(1), and 6106(a), respectively.




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appeal.2    On December 17, 2015, Appellant filed the instant motion to

“quash” his own appeal.          The Commonwealth did not file an answer to

Appellant’s motion.

       Appellant argues that the trial court erred in treating his pro se post-

sentence motion as a PCRA petition as “Appellant never received the chance

to file for direct review because his post-sentence motion was never

statutorily resolved.”       Appellant’s Motion to Quash, 12/17/15, at 3-4.

Appellant continues that the trial court “acted beyond its power and

authority … when it steered and coerced [him] into PCRA proceedings, when

it was not the correct time by law for him to be acting under these

proceedings.” Id. at 3.

       As noted above, Appellant’s counseled post-sentence motion was

denied on June 24, 2014.             Therefore, Appellant’s direct appeal period

expired on July 24, 2014.         See Pa.R.Crim.P. 720(A)(2)(a) (stating that a

defendant’s notice of appeal shall be filed within 30 days after the entry of

the order denying the defendant’s post-sentence motion).         It is axiomatic

that “any petition filed after the judgment of sentence becomes final will be
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2
   On April 26, 2015, the trial court entered an order directing Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). Appellant timely filed his
statement on May 15, 2015, and included the trial judge in his certificate of
service attached to the same. The trial court filed its Rule 1925(a) opinion
on May 22, 2015, concluding that Appellant has waived all issues on appeal
for not complying with Rule 1925. The trial court did not explain the basis
for its waiver conclusion, and it is wholly refuted by the certified record.



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treated as a PCRA petition.” Commonwealth v. Taylor, 63 A.3d 462, 466

(Pa. Super. 2013) (citations omitted; emphasis added).        However, in this

case, Appellant’s judgment of sentence was not final at the time of his pro

se post-sentence motion.           See 42 Pa.C.S.A. § 9545(b)(3) (stating, “a

judgment becomes final at the conclusion of direct review … or at the

expiration of time for seeking the review[]”).      In addition, at the time of

Appellant’s pro se filing, he was still represented by counsel. Pennsylvania

Rule of Criminal Procedure 576(A)(4) provides that when a pro se filing is

received from a represented defendant, the trial court shall mark it for filing

and forward a copy to the defendant’s counsel.         Pa.R.Crim.P. 576(A)(4).

Hybrid representation is disapproved at all levels in Pennsylvania.        See

generally Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010).                As a

result, Appellant’s pro se post-sentence motion was not a PCRA petition, but

rather a legal nullity.      Therefore, the PCRA proceedings that flowed from

Appellant’s pro se post-sentence motion were likewise legal nullities.3

Therefore, Appellant’s motion to quash is correct to the extent it argues that

the instant dismissal order that is the purported subject of this appeal is null

and void.




____________________________________________
3
  Given the difficult procedural posture of this case, we view the trial court’s
hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998)
also as a legal nullity.



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       However, Appellant’s motion also asks this Court to instruct the trial

court on remand to treat his pro se post-sentence motion as timely filed.

Appellant’s Motion to Quash, 12/17/15, at 4. As noted above, Appellant filed

a timely, counseled, post-sentence motion that the trial court denied on the

merits. Furthermore, we lack the authority to direct post-sentence or direct

appeal proceedings nunc pro tunc outside the parameters of the PCRA.

Commonwealth v. Eller, 807 A.2d 838, 845 (Pa. 2002).                        Therefore,

Appellant cannot receive a remand order from this Court.

       Based on the foregoing, we conclude the trial court erroneously

treated Appellant’s pro se post-sentence motion as a PCRA petition rather

than as a legal nullity.        Therefore, Appellant’s motion is granted to the

extent it seeks vacatur of the trial court’s order as a legal nullity and denied

to the extent it seeks a remand.4              Accordingly, the trial court’s March 19,

2015 order is vacated.

       Motion granted in part and denied in part. Order vacated. Jurisdiction

relinquished.




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4
  Our judgment in this case does not preclude Appellant from filing a new
PCRA petition, which would be his first, seeking reinstatement of his direct
appeal rights nunc pro tunc. See generally 42 Pa.C.S.A. §§ 9543(a)(2)(i),
9545(b)(1)(i), 9545(b)(2).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/28/2016




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