J-S11002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :                 IN THE SUPERIOR COURT OF
                             :                      PENNSYLVANIA
                             :
            v.               :
                             :
                             :
 JESSE LEE KEEL, III         :
                             :
                 Appellant   :                 No. 957 EDA 2016
                             :

           Appeal from the Judgment of Sentence February 16, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011256-2015


BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                   FILED MAY 31, 2018

        Jesse Lee Keel, III, appeals from the judgment of sentence imposed

February 16, 2016, in the Philadelphia County Common Pleas.            Keel was

sentenced to a term of eight to 23 months’ imprisonment, followed by two

years’ probation, after he entered a guilty plea to the charges of aggravated

assault and possessing an instrument of crime (“PIC”).1         On appeal, Keel

contends his plea was entered unknowingly and involuntarily. For the reasons

below, we affirm.

        The facts underlying Keel’s guilty plea are summarized by the trial court

as follows:

              On July 19, 2015, the complainant was inside a home with
        [Keel], her boyfriend at the time. The complainant wanted to
____________________________________________


1   See 18 Pa.C.S. §§ 2702(a)(4) and 907, respectively.
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        leave but [Keel] did not want her to go and when she got up to
        leave, [Keel] swung a stick-knife at her, striking her on her
        forearm and said, “You’re not going anywhere.” The complainant
        then left and hid in a Dunkin[’] Donuts.

              When the complainant decided to walk to the L train, [Keel]
        came after her and [the] complainant asked an attendant to call
        911. At that time, [Keel] raised his cane to strike the complainant,
        when a witness, grabbed the cane and stated, “You’re not going
        to hit her.” At that time[, Keel] began to punch this witness
        saying, “This is my woman, and I can put my hands on her if I
        want.” The witness and [Keel] continued to fight for a few minutes
        and [Keel] left.

              About fifteen (15) minutes later[, Keel] returned to the L
        platform and pointed a gun at both the complainant and the
        witness yelling, “Motherfucker, that’s my girl. I’m going to blow
        your head off.” The witness then grabbed [Keel] and they fell to
        the ground and [the] complainant grabbed the gun. When police
        arrived[,] the gun was determined to be a BB gun.

Trial Court Opinion, 9/27/2017, at 3.

        Keel was subsequently arrested and charged in two separate dockets.

At Docket No. 11256-2015, he was charged with aggravated assault, simple

assault, recklessly endangering another person (“REAP”), PIC, harassment

and terroristic threats2 for his attack on the complainant, his ex-girlfriend. At

Docket No. 11257-2015, he was charged with simple assault, REAP, and PIC3

for his attack on the witness. On February 16, 2016, Keel entered a guilty

plea in both cases: (1) at Docket No. 11256-2015, he pled guilty to one count

each of aggravated assault and PIC, and (2) at Docket No. 11257-2015, he

____________________________________________


2 See 18 Pa.C.S. §§ 2702(a)(1) and (4), 2701(a)(1)-(3), 2705, 907,
2709(a)(1), and 2701(a)(1), respectively.

3   See 18 Pa.C.S. §§ 2701(a)(1)-(3), 2705, and 907, respectively.


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pled guilty to one count of simple assault. The trial court sentenced Keel that

same day to an aggregate term of eight to 23 months’ imprisonment followed

by two years’ probation at both dockets, and ordered the sentences at each

docket to run concurrently.          Thereafter, on March 11, 2016, while still

represented by counsel, Keel filed two pro se documents at Docket No. 11256-

2015, namely, a motion with withdraw his guilty plea and a notice of appeal.

Although both filings were docketed in the trial court, the docket includes the

notation “Receipt of Filing from Represented Defendant Not Signed by

Attorney.”     See Docket No. 11256-2015, Entries for 3/11/2016.           Keel

subsequently filed another notice of appeal on March 18, 2016.4 On April 29,

2016, the trial court directed Keel to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), however, counsel did

not comply with the directive.

       In the meantime, Keel continued to bombard the trial court with pro se

motions for relief. On June 1, 2016, the trial court relieved plea counsel, and

appointed David W. Barrish, Esq., to represent Keel. However, on August 27,

2016, Counsel filed a petition seeking to withdraw, due to a breakdown in the
____________________________________________


4 We find the pro se notice of appeal filed on March 11, 2016, was timely, and
preserved Keel’s direct appeal rights. Although this Court generally will not
accept pro se filings from a defendant who is represented by counsel, we have
carved out an exception to this rule for pro se notices of appeal: “[T]his Court
is required to docket a pro se notice of appeal despite Appellant being
represented by counsel[.]” Commonwealth v. Williams, 151 A.3d 621, 624
(Pa. Super. 2016). Therefore, in the present case, we find Keel’s appeal was
timely filed on March 11, 2016. We note Keel did not appeal the judgment of
sentence imposed at Docket No. 11257-2016.


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attorney-client relationship. See Petition to Withdraw, 8/27/2016. Although

the trial court issued another Rule 1925(b) order on August 30, 2016, counsel

did not file a concise statement. Rather, on October 4, 2016, the trial court

permitted counsel to withdraw, and appointed Keel’s present attorney, Michael

P. Marryshow, Esq., to represent him.

      The trial court filed an opinion on November 3, 2016, in which it

concluded Keel failed to preserve any issues for appeal because he did not

comply with the court’s order directing him to file a Rule 1925(b) concise

statement. See Trial Court Opinion, 11/3/2016, at 4. Thereafter, on February

1, 2017, counsel filed, in this Court, an application for remand, requesting we

remand the case to the trial court so that it could direct him to file a concise

statement, since he was never ordered to do so after his appointment. This

Court entered an order on February 27, 2017, granting counsel’s request.

Upon remand, counsel filed a timely concise statement on March 15, 2017.

      The sole issue raised on appeal is a challenge to the voluntariness of

Keel’s guilty plea. Specifically, Keel insists the trial court “induced him into

pleading guilty where [he] repeatedly denied and disputed the facts read into

the record by the prosecutor.” Keel’s Brief at 11. Keel further argues the

court threatened to “spin the case out for trial” unless he agreed to the facts

as stated. Id. at 14. Although he repeatedly denied any wrongdoing, Keel

contends his trial counsel believed it was in his best interest to enter a guilty

plea. See id. at 15. He maintains, “[i]t was not the judge’s decision nor was

it [] counsel’s decision as to whether [Keel] should plead guilty to the

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charges.” Id. Accordingly, Keel argues he should be permitted to withdraw

his plea.

      Preliminarily, we note:

      A defendant wishing to challenge the voluntariness of a guilty plea
      on direct appeal must either object during the plea colloquy or file
      a motion to withdraw the plea within ten days of sentencing.
      Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to employ either
      measure results in waiver. Commonwealth v. Tareila, 895
      A.2d 1266, 1270 n. 3 (Pa.Super.2006).

Commonwealth v. Lincoln, 72 A.3d 606, 609–610 (Pa. Super. 2013),

appeal denied, 87 A.3d 319 (Pa. 2014).       Here, Keel did not challenge the

voluntariness of his plea during the plea colloquy. However, he did file an

untimely pro se motion to withdraw his plea on March 11, 2016, the same day

he also filed a notice of appeal. That motion did not preserve his claim for

two reasons.

      First, a defendant is not entitled to hybrid representation; therefore,

Keel could not file a pro se post-sentence motion when he was represented

by counsel. See Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super.

2007), appeal denied, 936 A.2d 40 (Pa. 2007). “This means that [Keel’s] pro

se post-sentence motion was a nullity, having no legal effect.” Id. (citation

omitted). Second, Keel filed a pro se notice of appeal the same day he filed

the untimely motion to withdraw his plea. Once a notice of appeal is filed, a

trial court has no jurisdiction to proceed further in the action. See Pa.R.A.P.

1701(a). Accordingly, Keel divested the trial court of jurisdiction to rule on

the untimely motion as soon as he filed a notice of appeal.       Furthermore,


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present counsel did not request permission to file a post-sentence motion nunc

pro tunc to preserve Keel’s issue on appeal.     Therefore, Keel has failed to

properly preserve this claim for our review.5

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/18




____________________________________________


5 We note Keel also contends the trial court failed to advise him of “his right
to file a motion to withdraw his guilty plea.” Keel’s Brief at 13. However, Keel
did not preserve this claim in his Rule 1925(b) concise statement. See
Statement of Matters Complained of on Appeal, 3/15/2017. Accordingly, it,
too, is waived for our review. See Pa.R.A.P. 1924(b)(4)(vii) (“Issues not
included in the Statement and/or not raised in accordance with the provisions
of this paragraph (b)(4) are waived.”).

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