J-S23033-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                Appellee                  :
                                          :
                   v.                     :
                                          :
DAVID JULIUS PRICE, SR.,                  :
                                          :
                Appellant                 : No. 1647 EDA 2014

       Appeal from the Judgment of Sentence Entered April 30, 2014,
            in the Court of Common Pleas of Delaware County,
           Criminal Division, at No(s): CP-23-CR-0006350-2013

BEFORE:     DONOHUE, SHOGAN, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                       FILED JUNE 11, 2015

      David Julius Price, Sr. (Appellant) appeals from the judgment of

sentence entered April 30, 2014, following his guilty plea to one count of

driving under the influence of alcohol (DUI) - highest rate of alcohol - third

offense, three counts of recklessly endangering another person, and one

count of driving while operating privilege was suspended or revoked.

Counsel for Appellant has filed a petition to withdraw and brief pursuant to

Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.

Santiago, 978 A.2d 349, 361 (Pa. 2009). Upon review, we deny counsel’s

petition to withdraw and order counsel to file a supplemental brief.

      Appellant was arrested and charged with various offenses following an

incident that occurred on September 18, 2013. On March 3, 2014, Appellant

entered into an open guilty plea to the aforementioned charges.        On April



*Retired Senior Judge assigned to the Superior Court.
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20, 2014, Appellant was sentenced to an aggregate term of 2 to 11 years’

incarceration. No post-sentence motion was filed. Appellant filed a pro se

notice of appeal.   The trial court forwarded this notice to Appellant’s counsel

of record and directed counsel to file a statement of errors complained of on

appeal.1   Counsel complied with the court’s directive by filing notice of his

intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).



1
 Appellant was sentenced on April 20, 2014, and had 30 days, or until May
30, 2014, to file a timely notice of appeal. Appellant’s notice of appeal was
entered on the docket on June 3, 2014.

       “[I]n the interest of fairness, the prisoner mailbox rule provides that a
pro se prisoner’s document is deemed filed on the date he delivers it to
prison authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34,
38 (Pa. Super. 2011). The rule allows this Court “to accept any reasonably
verifiable evidence of the date that the prisoner deposits the appeal with the
prison authorities....” Commonwealth v. Perez, 799 A.2d 848, 851 (Pa.
Super. 2002).

      Instantly, the certificate of service attached to Appellant’s notice of
appeal is dated May 27, 2014, which arguably supports a conclusion that
Appellant’s appeal was timely filed under the prisoner mailbox rule.
However, the envelope containing the notice is postmarked June 2, 2014.
Nonetheless, there is nothing of record that would indicate that Appellant did
not place the document in the hands of prison authorities on May 27, 2014,
or shortly thereafter.

       However, pursuant to well-established Pennsylvania law, a defendant
is not entitled to hybrid representation. See Commonwealth v. Ellis, 626
A.2d 1137, 1141 (Pa. 1993) (a defendant does not have the constitutional
right of self-representation together with counseled representation at the
trial or appellate level); see also Commonwealth v. Jette, 23 A.3d 1032,
1036 (Pa. 2011) (citing Pennsylvania’s long-standing policy that precludes
hybrid representation). Additionally, Rule 120(A)(4) of the Rules of Criminal
Procedure states that an “[a]n attorney who has been retained . . . shall
continue such representation through direct appeal or until granted leave to


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withdraw by the court pursuant to paragraph (B).” Pa.R.Crim.P. 120(A)(4).
Paragraph (B) of that rule states that “[c]ounsel for a defendant may not
withdraw his or her appearance except by leave of court.” Pa.R.Crim.P.
120(B)(1).

      Here, the record demonstrates that trial counsel was still counsel of
record at the time Appellant filed his pro se notice of appeal. Despite his
claim in his motion to withdraw that his representation of Appellant “did not
include taking an appeal” to this Court, Petition to Withdraw As Counsel,
6/9/2014, at ¶ 2, counsel did not move to withdraw at any point prior to
Appellant’s pro se filing. Moreover, Appellant did not request leave to
proceed pro se, nor did he request that plea counsel withdraw. Pursuant to
the Rules of Criminal Procedure outlined above, it was improper for him to
file a pro se notice of appeal with the trial court. The above errors
notwithstanding, we decline to quash this appeal.

       We further note that, although Appellant filed his notice of appeal pro
se while ostensibly represented by counsel, that does not deprive this Court
of jurisdiction to hear Appellant’s claims. Generally, our courts will not
entertain pro se filings while an appellant remains represented, and such
filings have been described as legal nullities. See Commonwealth v. Ali,
10 A.3d 282, 293 (Pa. 2010). However, pro se notices of appeal present a
special case. In Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011), our
Supreme Court held that a pro se notice of appeal, filed while Cooper was
represented by counsel, was not automatically a legal nullity, but was simply
“premature.” Id. at 1007. Admittedly, Cooper was a case with a unique
procedural history that can be distinguished from that of the instant matter.
Nonetheless, this Court and our Supreme Court have faced pro se notices of
appeal filed by represented appellants both before and after Cooper, and we
have not considered this defect to be fatal. See, e.g., Commonwealth v.
Wilson, 67 A.3d 736, 738 (Pa. 2013) (explaining that “[Wilson] filed a pro
se notice of appeal; it is not clear why his court-appointed counsel did not
file the notice,” and proceeding to review the merits of Wilson’s case without
further discussion); Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa.
Super. 2009) (remanding for a Grazier hearing where, after the denial of
Robinson’s counseled petition pursuant to the Post Conviction Relief Act,
Robinson filed a timely pro se appeal, and a petition requesting that he be
allowed to proceed pro se, and the PCRA court entered an order permitting
counsel to withdraw). Thus, we will not treat Appellant’s pro se notice of
appeal as a nullity.



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      On February 10, 2015, Appellant’s counsel filed with this Court a

petition to withdraw as counsel and an Anders brief. As a preliminary

matter, we address counsel’s application to withdraw before reaching the

merits of the issues raised in the brief.      Commonwealth v. Rojas, 874

A.2d 638, 639 (Pa. Super. 2005) (quoting Commonwealth v. Smith, 700

A.2d 1301, 1303 (Pa. Super. 1997)) (“When faced with a purported Anders

brief, this Court may not review the merits of the underlying issues without

first passing on the request to withdraw.”).

      To withdraw pursuant to Anders, counsel must: 1) petition the Court

for leave to withdraw, certifying that after a thorough review of the record,

counsel has concluded the issues to be raised are wholly frivolous; 2) file a

brief referring to anything in the record that might arguably support the

appeal; and 3) furnish a copy of the brief to the appellant and advise him or

her of the right to obtain new counsel or file a pro se brief to raise any

additional   points   that   the   appellant    deems   worthy   of   review.

Commonwealth v. Garang, 9             A.3d 237, 240     (Pa. Super. 2010).

Thereafter, this Court independently reviews the record and issues. Id.

      Our Supreme Court has explained that, in an Anders brief, counsel

seeking to withdraw must:

      (1) provide a summary of the procedural history and facts, with
      citations to the record; (2) refer to anything in the record that
      counsel believes arguably supports the appeal; (3) set forth
      counsel’s conclusion that the appeal is frivolous; and (4) state



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      counsel’s reasons for concluding that the appeal is frivolous.
      Counsel should articulate the relevant facts of record, controlling
      case law, and/or statutes on point that have led to the
      conclusion that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

      Here, counsel for Appellant states one issue of arguable merit:

whether Appellant’s sentence of 2 to 11 years’ incarceration is harsh or

excessive.   Appellant’s Brief at 3.   However, counsel’s conclusion that this

argument is frivolous, because “the Superior Court has no authority to

permit a challenge to the discretionary aspects of sentence” following the

entry of an open guilty plea, is a clear misstatement of the law. See e.g.

Commonwealth v. Tirado, 870 A.2d 362, 368 n. 5 (2005) (noting that

“while a guilty plea which includes sentence negotiation ordinarily precludes

a defendant from contesting the validity of his or her sentence other than to

argue that the sentence is illegal or that the sentencing court did not have

jurisdiction, open plea agreements are an exception in which a defendant

will not be precluded from appealing the discretionary aspects of the

sentence.”) (emphasis in original).      Complicating the issue is counsel’s

failure to file a separate Pa.R.A.P. 2119(f) statement stating the reasons

relied upon for allowance of this appeal, and his failure to indicate, or even




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mention, whether Appellant’s sentencing issue presented a substantial

question for our review.2

      In Santiago, our Supreme Court explained why it is important that

counsel articulate her reasons for concluding that an appeal is frivolous.

             We are persuaded that requiring counsel to articulate the
      basis for his or her conclusion of frivolity will advance the twin
      functions counsel's Anders brief is to serve, i.e., it will assist the
      intermediate appellate courts in determining whether counsel
      has conducted a thorough and diligent review of the case to
      discover appealable issues and whether the appeal is indeed
      frivolous. In this context, we believe that there is real value in
      putting pen to paper. As the United States Supreme Court has
      noted, the task of articulating reasons can shed new light on
      what may at first appear to be an open-and-shut issue. It can
      also reveal to counsel previously unrecognized aspects of the
      record or the law and thereby provide a safeguard against a
      hastily-drawn or mistaken conclusion of frivolity. In addition, we
      believe that it is often the case that the basis for an attorney's

2
  It is well settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.

         Before [this Court may] reach the merits of [a challenge to
         the discretionary aspects of a sentence], we must engage
         in a four part analysis to determine: (1) whether the
         appeal is timely [filed]; (2) whether Appellant preserved
         his issue; (3) whether Appellant’s brief includes a concise
         statement of the reasons relied upon for allowance of
         appeal with respect to the discretionary aspects of
         sentence; and (4) whether the concise statement raises a
         substantial question that the sentence is appropriate under
         the sentencing code.... [I]f the appeal satisfies each of
         these four requirements, we will then proceed to decide
         the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).




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      opinion that an appeal is frivolous is not readily apparent, and
      that accordingly, counsel's explanation will significantly assist
      the courts in passing upon the soundness of counsel's
      conclusion, which, in turn, vindicates the right to counsel.

Id. at 360-61 (citations omitted).

      Instantly, absent any attempt by counsel to meet this requirement, we

conclude that his brief does not comply substantially with Santiago. As a

result, we deny counsel’s petition to withdraw without prejudice. Counsel

shall file either an advocate’s brief or a supplemental Anders brief within 30

days of the date of this memorandum.

      Petition   to   withdraw   as   counsel   denied.   Case   remanded   with

instructions. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 6/11/2015




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