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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    :    IN THE SUPERIOR COURT OF
                                                :          PENNSYLVANIA
                      v.                        :
                                                :
JEFFERY SHIVERS,                                :         No. 1616 WDA 2017
                                                :
                             Appellant          :


           Appeal from the Judgment of Sentence, December 1, 2016,
               in the Court of Common Pleas of Allegheny County
                Criminal Division at No. CP-02-CR-0011085-2015


BEFORE: STABILE, J., MUSMANNO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                             FILED JULY 23, 2018

      Appellant, Jeffery Shivers, appeals from the December 1, 2016

judgment of sentence entered by the Court of Common Pleas of Allegheny

County following his conviction of fleeing or attempting to elude a police

officer,   retail   theft,   resisting    arrest,   and   two   counts   of   recklessly

endangering another person.              The trial court sentenced appellant to an

aggregate of 21-42 months’ incarceration. After careful review, we affirm.

      The trial court provided the following procedural and factual history:

              This is an appeal from the judgment of sentence
              entered on December 1, 2016 after [appellant
              entered a plea of] guilty to Fleeing or Attempting to
              Allude[sic] a Police Officer in violation of
              75 Pa.C.S.A. § 3733(2)(i), (ii) and (iii); Retail Theft
              in violation of 18 Pa.C.S.A. § 3929(a)(1), (b)(1)(iii);
              Resisting Arrest in violation of 18 Pa.C.S.A. § 5104;
              and two counts of Recklessly Endangering Another
              Person in violation of 18 Pa.C.S.A. § 2705. Pursuant
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          to a negotiated plea agreement [appellant] was
          sentenced to 21 to 42 months[’] incarceration. No
          direct appeal was filed. On May 23, 2017 [appellant]
          filed a PCRA Petition alleging that counsel was
          ineffective in failing to file a requested direct appeal.
          PCRA counsel was appointed and on June 9, 2017 an
          Amended PCRA Petition was filed and the
          Commonwealth filed its Answer on June 16, 2017.
          On July 20, 2017 [appellant] filed a Motion for [a]
          Faretta/Grazier[1] Hearing and an order was entered
          on August 2, 2017 setting a hearing for October 18,
          2017. However, on October 17, 2017 an order was
          entered reinstating [appellant’s] appellate rights.

          On October 17, 2017 [appellant] filed a Post
          Sentence Motion which was denied by order of
          October 26, 2017.      [Appellant] filed a Notice of
          Appeal    and    Concise   Statement      of  Matters
          Complained      of   on    Appeal      [pursuant   to
          Pa.R.A.P. 1925(b)] on October 31, 2017 [, and the
          trial court filed an opinion pursuant to Pa.R.A.P.
          1925(a) on January 18, 2018.] . . . .

          ....

          This matter arises out of [appellant’s] arrest on
          August 23, 2015. A criminal complaint was filed on
          August 24, 2015 charging [appellant] as set forth
          above and, in addition, 11 summary motor vehicle
          code violations. On December 1, 2016 [appellant]
          appeared with counsel and entered into a negotiated
          plea agreement. Prior to the plea, the [trial c]ourt
          considered [appellant’s] Rule 600 Motion. In his
          motion, filed on November 9, 2016, [appellant]
          alleged that he was arrested on August 23, 2015 and
          was currently incarcerated. He further alleged that
          on September 19, 2016, October 3, 2016 and
          October 28, 2016 he requested his counsel to file a
          Rule 600 Motion, but that counsel had not
          responded. [Appellant] further alleged that there
          were no continuances granted on his behalf or with

1See Faretta v. California, 422 U.S. 806 (1975); Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998).


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            his knowledge on his behalf and that Rule 600 had
            been violated because he had not been brought to
            trial on or before August 23, 2016. . . .

            ....

            The plea agreement that was offered provided that in
            exchange for [appellant’s] guilty plea to Counts 1
            through 5 of the Criminal Information the
            Commonwealth agreed to withdraw all remaining
            charges and in exchange [appellant] would be
            sentenced to a period of incarceration of 21 to
            42 months, which was in the mitigated range for a
            sentence on the charge of fleeing and eluding. . . .

            ....

            In addition, [appellant] indicated that he was
            satisfied   with   his   attorney’s    advice   and
            representation. [Appellant’s] plea was accepted and
            he was sentenced to 21 to 42 months in conjunction
            with the plea agreement.

Trial court opinion, 1/18/18 at 1-4 (citations to record omitted).

      Appellant raises the following issues for our review:

            1.     Whether all charges should have been
                   dismissed pursuant to Pa.R.Cr.P. 600 where
                   more than 365 days passed during the period
                   of August 23, 2015 to November 9, 2016
                   during which the Commonwealth failed to
                   exercise due diligence in bringing [appellant]
                   to trial and the period during which [appellant]
                   was represented by Attorney Foreman is not
                   excludable as the [trial court] found, implicitly
                   by granting [appellant’s] July 14, 2016 Motion,
                   Attorney Foreman was ineffective?

            2.     Whether    [appellant’s]  guilty   plea     was
                   involuntary and resulted from ineffective
                   assistance of counsel—in violation of Article I,
                   Section 9 of the Pennsylvania Constitution
                   and/or Sixth and Fourteenth Amendments to


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                       the United States Constitution—where he was
                       led to believe by plea counsel that a speedy
                       trial claim would not be waived by the guilty
                       plea but, if [appellant] knew his guilty plea
                       would waive a speedy trial claim, [appellant]
                       would not have pled guilty and, instead, would
                       have proceeded to trial?

Appellant’s brief at 4.

        In    his   first   issue   for   our   review,   appellant   avers   that   the

Commonwealth violated his constitutional right to a speedy trial pursuant to

Pennsylvania Rule of Criminal Procedure 600.               Our review of the record

reflects that appellant filed a pro se Rule 600 motion on November 17,

2016.        At the time appellant filed his pro se motion, however, he was

represented by Randall H. McKinney, Esq., who was appointed by the trial

court on September 7, 2016.

        Appellant did not have the right to file his pro se motion because he

was represented by counsel. Commonwealth v. Nischan, 928 A.2d 349,

355 (Pa.Super. 2007), appeal denied, 936 A.2d 40 (Pa. 2007), citing

Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993).                    “This means

that his pro se [] motion was a nullity, having no legal effect.              Nischan,

928 A.2d at 355, citing Commonwealth v. Piscanio, 608 A.2d 1027,

1029 n.3 (Pa. 1992).

        Indeed, as the Ellis court cited,

                A defendant has the constitutional right to proceed
                without counsel if the decision to do so is knowing
                and voluntary. Faretta v. California, 422 U.S. 806
                (1975), accord, Commonwealth v. Davis, 388


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              A.2d 324 (Pa. 1978).          In Commonwealth v.
              Williams, 410 A.2d 880 (Pa.Super. 1979), the court
              held that the same constitutional right [to represent
              oneself] does not apply to a defendant represented
              by an attorney who wishes to act as co-counsel and
              that the decision as to whether that is to be allowed
              is in the sound discretion of the trial court.

Ellis, 626 A.2d at 1139, quoting Commonwealth v. Colson, 490 A.2d 811,

821 (Pa. 1985). In order for a defendant to act as his own counsel, he or

she is required to terminate the representation of counsel and then proceed

on his or her own behalf pursuant to the rules of criminal procedure.

Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998), citing Ellis, 626

A.2d at 1141, Faretta, 422 U.S. 806.

      Here, because appellant’s pro se Rule 600 motion is a legal nullity, we

find the issue waived on appeal. Also, by pleading guilty, appellant waives

any challenge under Rule 600. See Commonwealth v. Barbaro, 94 A.3d

389, 391 n.2 (Pa.Super. 2014) (“When a defendant pleads guilty, he waives

the right to challenge anything but the legality of his sentence and the

validity of his plea.” (citation omitted)).

      In his second issue, appellant contends that his guilty plea was not

voluntary as the result of ineffective assistance of counsel.

      As a general rule, claims of ineffective assistance of counsel are

deferred to collateral review. Commonwealth v. Grant, 813 A.2d 726, 738

(Pa. 2002).    The rule promulgated by Grant, however, was not absolute.

Indeed, in Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), our



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supreme court recognized an exception to the Grant court’s general rule. In

Bomar, our supreme court held that an ineffective assistance of counsel

claim may be raised on direct appeal in cases where the trial court has had

an opportunity to address those claims. Id. at 854. In Commonwealth v.

Holmes, 79 A.3d 562, 580 (Pa. 2013), our supreme court held that a court

may agree to a review of ineffective assistance of counsel claims on direct

review with a showing of good cause and a full colloquy addressing waiver of

collateral review.

      Here, in its Rule 1925(a) opinion, the trial court declines to address

appellant’s ineffective assistance of counsel claims, stating that such claims

should be raised on collateral review instead of on a direct appeal. Further,

there is no indication that appellant wishes to waive collateral review by the

trial court.   Because the trial court did not directly address appellant’s

ineffective assistance of counsel claim on direct review and appellant did not

explicitly waive his right to collateral review by the trial court, we dismiss

appellant’s claims pertaining to his guilty plea “without prejudice to his right

to present them in a [collateral] proceeding.” Commonwealth v. Blye, 33

A.3d 9, 11 (Pa.Super. 2011).

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 7/23/2018




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