J-S47024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMAL ABDUL RAHMAN                         :
                                               :
                       Appellant               :   No. 543 MDA 2019

         Appeal from the Judgment of Sentence Entered March 5, 2019
     In the Court of Common Pleas of Schuylkill County Criminal Division at
                       No(s): CP-54-CR-0001760-2018


BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.:                          FILED DECEMBER 03, 2019

        Appellant Jamal Abdul Rahman appeals from the judgement of sentence

imposed following his guilty plea for knowing and intentional possession of a

controlled substance and possession of drug paraphernalia.1           Appellant

challenges whether he entered a knowing, voluntary, and intelligent plea. For

the reasons that follow, we quash the appeal as premature.

        The relevant facts and procedural history are as follows:

        On January 16, 2019, [Appellant] entered a guilty plea to
        possession of a controlled substance and possession of drug
        paraphernalia.[2] The plea was entered pursuant to a [negotiated]
        plea agreement which called for all other charges to be nol
        prossed, and [Appellant] to receive concurrent sentences of [one]
        to [two] years [in a state correctional institution] on both the
        possession charge and the drug paraphernalia charge, and the
____________________________________________


1   35 P.S. § 780-113(a)(16) and 35 P.S. § 780-113(a)(32).

2James Conville, Esq., represented Appellant at the plea hearing and remains
counsel of record on appeal.
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       sentence in this case was to be served consecutive to the state
       sentence he was then serving on another case.

       During the guilty plea colloquy, [Appellant] was correctly advised
       that the maximum sentences for both the possession charge and
       the drug paraphernalia charge were one year each. At the time
       of sentencing, the [Commonwealth] correctly pointed out that the
       plea agreement called for illegal sentences for both charges, since
       the agreed [upon] sentences would have exceeded the statutory
       maximum for each charge.[3]

       The [Commonwealth] proposed amending the recommended
       sentence to [six] to [twelve] months [of imprisonment] on the
       possession charge and a concurrent [six] months’ probation on
       the drug paraphernalia charge. This sentence was still to be
       imposed consecutively to the state sentence he was then serving.

       [The trial court] explained to [Appellant] the changes that had
       been made to the plea agreement, which resulted in his new
       recommended sentence being for less time.            [Appellant]
       responded, “That’s good news”; and he was sentenced in
       accordance with the amended agreement.

       On January 28, 2019, [Appellant] filed a pro se motion to modify
       sentence in which he asked the [trial c]ourt to modify his sentence
       to be served concurrently with his state sentence in the other case
       or to direct that this sentence be served in a state institution
       rather than the Schuylkill County Prison. In the alternative, he
       asked that his sentence be vacated and he be permitted to
       withdraw his plea.

       [Appellant] was represented by court-appointed counsel at the
       time of his plea. When [the trial court] received [Appellant’s pro
       se] motion to modify, [the trial court] failed to recognize that his
       counsel’s representation was still active, and [the trial court]
       entered an order on February 1, 2019, vacating his sentence and
       allowing him to withdraw his plea.

       On February 26, 2019, [Appellant] filed a pro se petition to vacate
       [the trial court’s] order and to reinstate his plea. In that petition
       [Appellant] alleged that he had inadvertently included an
____________________________________________


3 The maximum sentence for a first conviction of simple possession or
possession of paraphernalia is one year of imprisonment. 35 P.S. § 780-
113(b), (i).

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        alternative request to withdraw his plea and that his original
        petition should have been forwarded to his counsel to avoid hybrid
        representation. [Appellant] was right that his original motion
        should have been forwarded to counsel, and so by order dated
        March 5, 2019, [the trial court] reinstated the original sentence.[4]
        Counsel was advised of his client’s filings. [The trial court]
        anticipated that counsel would file a petition to withdraw the guilty
        plea on [Appellant]’s behalf or to modify the sentence, as
        [Appellant] was requesting.

Trial Ct. Op., 5/13/19, at 1-3.

        On April 3, 2019, Appellant’s counsel simultaneously filed a motion to

modify sentence nunc pro tunc and a notice of appeal to this Court.5 The trial

court denied the motion to modify sentence on April 4, 2019, due to a lack of

jurisdiction.   That same day, the trial court ordered Appellant to submit a

Pa.R.A.P. 1925(b) statement. Appellant timely complied and the trial court

filed a Rule 1925(a) opinion. In its opinion, the trial court declined to address




____________________________________________



4   The trial court’s March 5, 2019 order stated:

        AND NOW, this 5th day of March, 2019, at 9:10 a.m., the order
        dated February 1, 2019, granting [Appellant]’s pro se petition to
        withdraw his guilty plea having been improvidently granted in
        response to a pro se petition while [Appellant] was represented
        by counsel, it is ORDERED that the order of February 1, 2019 is
        VACATED and the sentence imposed on January 16, 2019 is
        REINSTATED without modifications.

Order, 3/5/19.

5 The post-sentence motion sought relief nunc pro tunc, explaining that
counsel was not immediately aware of the issues surrounding the litigation of
Appellant’s pro se motion.

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the merits of Appellant’s claim, because it did not have an opportunity to

receive testimony regarding the circumstances of the plea. Id. at 3.

       Appellant raises the following question for our review:

       1. Whether [Appellant] failed to enter a knowing, intelligent and
          voluntary plea of guilt when not being informed that [the]
          sentence imposed would not aggregate with his current state
          sentence he was serving?

Appellant’s Brief at 3 (full capitalization omitted).

       Appellant argues that the instant sentence should have aggregated with

his state sentence from another case, such that he would serve the instant

sentence in a state correctional institution. Id. at 10. Appellant concedes

that he intended to plead guilty to the charges. Id. at 8. Appellant contends,

however, that the trial court did not inform him that he would have to serve

the instant sentence in county prison, and he became aware of this fact only

after he received the sentencing order. Id. at 8-9. Appellant insists that he

would not have pled guilty had he known that his sentence was to be served

in county prison. Id. at 9. Based upon the foregoing, Appellant asserts that

he entered an unknowing guilty plea. Id.

       Preliminarily, we must evaluate whether we have jurisdiction over this

appeal. “[S]ince the question of appealability implicates the jurisdiction of

this   Court,   the   issue   may   be   raised   by    this   Court   sua   sponte.”

Commonwealth v. Horn, 172 A.3d 1133, 1135 (Pa. Super. 2017) (citation

and internal alterations omitted).        “[T]he final, appealable order for a

defendant’s direct appeal in a criminal case is the judgment of sentence, not


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the conviction.”   Commonwealth v. Claffey, 80 A.3d 780, 782-83 (Pa.

Super. 2013) (citation omitted). If a defendant files a timely post-sentence

motion, then the notice of appeal must generally be filed within thirty days of

the entry of the order deciding the motion.     Pa.R.Crim.P. 720(A)(2).      “No

direct appeal may be taken by a defendant while his or her post-sentence

motion is pending.” Pa.R.Crim.P. 720 cmt. (citation omitted).

      “[A] post-sentence motion nunc pro tunc may toll the appeal period, but

only if two conditions are met.” Commonwealth v. Capaldi, 112 A.3d 1242,

1244 (Pa. Super. 2015) (citation omitted).

      First, within [thirty] days of imposition of sentence, a defendant
      must request the trial court to consider a post-sentence motion
      nunc pro tunc. The request for nunc pro tunc relief is separate
      and distinct from the merits of the underlying post-sentence
      motion. Second, the trial court must expressly permit the filing
      of a post-sentence motion nunc pro tunc, also within [thirty] days
      of imposition of sentence. If the trial court does not expressly
      grant nunc pro tunc relief, the time for filing an appeal is neither
      tolled nor extended. Moreover, [t]he trial court’s resolution of the
      merits of the late post-sentence motion is no substitute for an
      order expressly granting nunc pro tunc relief.

Id. (emphasis in original, citations and quotation marks omitted).

      It is well settled that a criminal defendant is not permitted engage in

hybrid representation by submitting pro se filings while represented by

counsel. Commonwealth v. Willis, 29 A.3d 393, 400 (Pa. Super. 2011). A

pro se filing submitted by a counseled defendant is a legal nullity.

Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007). “When

a counseled defendant files a pro se document, it is noted on the docket and


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forwarded to counsel pursuant to Pa.R.Crim.P. 576(A)(4), but no further

action is to be taken.” Commonwealth v. Williams, 151 A.3d 621, 623 (Pa.

Super. 2016).

      Instantly, the trial court sentenced Appellant on January 16, 2019.

Appellant had until January 28, 2019 to file a timely post-sentence motion.

See Pa.R.Crim.P. 720(A)(1); see also 1 Pa.C.S. § 1908. Appellant, acting

pro se, submitted a timely post-sentence motion to the trial court. However,

Appellant was still represented by counsel. Accordingly, Appellant’s pro se

filing constituted hybrid representation and was a legal nullity. See Nischan,

982 A.2d at 355.

      Initially, the trial court granted Appellant’s pro se motion and scheduled

a hearing on the matter. Prior to the hearing, the trial court discovered that

the pro se filing should have been forwarded to Appellant’s counsel.       See

Williams, 151 A.3d at 623. Subsequently, the trial court entered the March

5, 2019 order vacating its prior order and reinstating Appellant’s judgment of

sentence.

      In reinstating Appellant’s sentence, the trial court expected Appellant,

through counsel, to file a new post-sentence motion. See Trial Ct. Op. at 3.

However, the trial court’s order did not expressly grant Appellant permission

to submit a post-sentence motion nunc pro tunc. See Capaldi, 112 A.3d at

1244. On April 3, 2019, Appellant’s counsel simultaneously filed a motion to

modify sentence nunc pro tunc and a notice of appeal. Although the trial court

subsequently denied Appellant’s motion to modify sentence nunc pro tunc,

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that order is of no consequence because Appellant’s notice of appeal divested

the trial court of jurisdiction. See generally Pa.R.A.P. 1701.

      Significantly, Appellant’s post-sentence motion nunc pro tunc remains

pending. Because the entry of an appropriate order is a prerequisite to this

Court’s exercise of jurisdiction, we conclude Appellant’s notice of appeal was

premature. See Pa.R.Crim.P. 720(A)(2)(a) & cmt.; Claffey, 80 A.3d at 782-

83. Therefore, we are constrained to quash this appeal. Upon remand, the

trial court should consider the merits of Appellant’s motion to modify sentence

nunc pro tunc. See Commonwealth v. Borrero, 692 A.2d 158, 161 (Pa.

Super. 1997) (quashing the appellant’s premature appeal and explaining that

the interests of justice required the trial court to consider the post-sentence

motions on remand, nunc pro tunc).

      Appeal quashed. Case remanded for further proceedings consistent with

this decision. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/03/2019




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