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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                     :
                                         :
MATTHEW ALLEN LAWTON,                    :
                                         :
                        Appellant        :     No. 1635 WDA 2015

                 Appeal from the PCRA Order August 27, 2015
                In the Court of Common Pleas of Potter County
               Criminal Division No(s): CP-53-CR-0000187-2010


BEFORE: BOWES, DUBOW, and MUSMANNO, JJ.

MEMORANDUM BY DUBOW, J.:                          FILED OCTOBER 6, 2016

            Appellant, Matthew Allen Lawton, appeals from the August 27,

2015 Order dismissing Appellant’s first petition pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546. We remand for the

filing of a counseled Rule 1925(b) Statement pursuant to Pa.R.A.P. 1925(b).

      In a previous appeal, this Court summarized the relevant factual

history as follows:

      This appeal stems from an incident that occurred over the July
      Fourth holiday in 2010. On July 3, the victim, then 10–years–old,
      and her family, visited the home of [Appellant], who was 18–
      years–old, and his family. While the parents were on a
      motorcycle ride, [Appellant] sexually assaulted the victim. The
      victim's younger brother witnessed the assault and tried,
      unsuccessfully, to stop it. After the assault, the victim's family
      continued their stay with [Appellant’s family] for two more days.
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      On July 5, [Appellant] admitted to inappropriately touching the
      victim, and the victim's mother called the police, who arrested
      [Appellant].

                                     ***

      On March 1, 2012, a jury trial commenced before the Honorable
      Stephen P.B. Minor. On April 2, 3012, the jury found [Appellant]
      guilty on all counts. On September 10, 2012, Judge Minor
      sentenced [Appellant] to an aggregate term of incarceration of
      242 to 480 months.

Commonwealth         v.   Lawton,    No.   1574    WDA    2012,    unpublished

memorandum at 1 (Pa. Super. filed Feb. 21, 2014).

      On February 21, 2014, this Court affirmed Appellant’s conviction.

      On February 20, 2015, Appellant filed a pro se PCRA Petition, which he

amended after the appointment of counsel.          Appellant’s counsel filed a

Second Amended PCRA Petition on May 29, 2015. On August 27, 2015, the

PCRA court held a hearing and filed an Order on August 28, 2015, dismissing

the PCRA Petition.

      On September 21, 2015, Appellant filed a counseled Notice of Appeal.

On October 8, 2015, Appellant sent a pro se letter to the Pennsylvania

Superior Court Office of the Prothonotary stating, in relevant part, “I am

writing you to in form [sic] you that I am removing my lawyer for [sic] his

duties in my case. Attached to this letter will be the letter I wrote to Jarrett

R Smith notifying him that he is releaved [sic] from being my lawyer.”

Letter, dated 10/8/15.




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        On October 15, 2015, the PCRA court entered an Order pursuant to

Pa.R.A.P. 1925 directing Appellant to file a Rule 1925(b) Statement and

stating, “[the PCRA court] notes that it received [Appellant’s] timely notice

of appeal on September 21, 2015 and that [Appellant] has apparently

dismissed his appointed counsel.”1 Order, dated 10/15/15. The trial court

served the Order on Appellant, but failed to serve the Order on Appellant’s

counsel even though counsel had not withdrawn his appearance.

        On October 30, 2015, Appellant filed a pro se Rule 1925(b) Statement.

Despite the fact that counsel was still representing Appellant, the docket

reflects that the court did not send a copy of Appellant’s pro se Rule 1925(b)

Statement to counsel. Also on October 30, 2015, Appellant’s counsel filed a

Petition to Withdraw as Counsel.

        On November 16, 2015, the PCRA court issued a Rule 1925(a) Opinion

addressing the issues raised in the pro se Rule 1925(b) Statement.

        On December 10, 2015, the PCRA court held a Grazier2 hearing to

determine if Appellant’s request to proceed pro se was knowing, voluntary,

and intelligent. On the same day, the PCRA court entered an Order stating,

in relevant part, ”after colloquy with [Appellant] he now expresses a desire

to continue his relationship with Attorney Jarrett Smith.       Upon further

discussion, Attorney Jarett Smith and [Appellant] report that they can and

1
    The Order was dated October 13, 2015 but filed on October 15, 2015.
2
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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will work together in prosecuting the appeal in this matter.      Accordingly,

Attorney Smith’s Petition to Withdraw as Counsel should be denied.” Order,

dated 12/10/15.

      On April 4, 2016, Attorney Smith filed a Brief on behalf of Appellant

with this Court, presenting issues that Appellant failed to raise in his pro se

Rule 1925(b) Statement, including:

   1. Trial counsel should be deemed ineffective for failing to call
      known and named eye witnesses such that [Appellant] did not
      receive a fair trial where testimony would have rendered a
      different result if the eye witness already known to the defense,
      the testimony would have impacted on jury verdict as to prevent
      [Appellant] from receiving a fair trial?

   2. The weight of the evidence did not support the verdict in lack of
      proper medical testimony and obvious factual disputes about the
      manner where the events portrayed to the jury created a
      physical impossibility?

   3. It is reversible error under the Newman case where the jury is
      not presented with the mandatory sentencing enhancements as
      applied and not determined by the empaneled jury (this author
      recognizes the Newman case is not applied retroactively)?

Appellant’s Brief at 7.

      “Our standard of review of a trial court order granting or denying relief

under the PCRA requires us to determine whether the decision of the PCRA

court is supported by the evidence of record and is free of legal error. The

PCRA court's findings will not be disturbed unless there is no support for the

findings in the certified record.” Commonwealth v. Perez, 103 A.3d 344,

347 (Pa. Super. 2014) (quotation marks and citation omitted).




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      Here, we conclude the PCRA court erred by failing to serve the

1925(b) Order on Appellant’s counsel and accepting Appellant’s pro se Rule

1925(b) Statement while he was still represented by counsel.       The PCRA

court exacerbated its error by issuing a subsequent Rule 1925(a) Opinion

based upon the pro se filing.

      Our Supreme Court recently stated, “[w]hat our jurisprudence has

consistently prohibited at both trial and appellate levels when strategic

disagreements arise between defendant and counsel is the option of hybrid

representation, where an otherwise represented defendant acts as de facto

co-counsel exercising control over parts of the defense.” Commonwealth

v. Mason, 130 A.3d 601, 671 (Pa. 2015).        Our Supreme Court instructs,

“[i]n the event a represented defendant presents a pro se pleading, motion,

or filing to the court, therefore, the court shall not entertain it but shall,

instead, forward it to counsel who may then decide whether to act on the

defendant's concern.”    Id. (emphasis added); see also Pa.R.A.P. 3304

(“Where a litigant is represented by an attorney before the court and the

litigant submits for filing a petition, motion, brief or any other type of

pleading in the matter, it shall not be docketed but forwarded to counsel of

record.) Moreover, where an appellant is represented by counsel on appeal,

his pro se Rule 1925(b) Statement is a “legal nullity.” Commonwealth v.

Ali, 10 A.3d 282, 293 (Pa. 2010).




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      In the instant case, PCRA counsel still represented Appellant at the

time Appellant filed his pro se Rule 1925(b) statement.     Thus, the pro se

filing was a legal nullity.   Ali, supra.   Accordingly, we must remand this

case to the PCRA court for the filing of a counseled Rule 1925(b) Statement.

      We direct counsel, Jarett Smith, Esquire, to file a counseled Rule

1925(b) Statement with the PCRA court within thirty (30) days.           Once

counsel files a new Rule 1925(b) Statement, the PCRA court is to issue a

Rule 1925(a) Opinion within thirty (30) days.      The Rule 1925(a) Opinion

should address the issues raised in the counseled Rule 1925(b) Statement,

and include a factual and procedural history. Upon return of the record to

this Court, we direct our Prothonotary to establish a new briefing schedule.

      Case remanded with instructions. Jurisdiction retained.




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