J-S24034-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :         IN THE SUPERIOR COURT OF
                                            :               PENNSYLVANIA
                   Appellee                 :
                                            :
             v.                             :
                                            :
JOSEPH JUDE CASINO,                         :
                                            :
                   Appellant                :               No. 3007 EDA 2014

     Appeal from the Judgment of Sentence entered on September 10, 2014
              in the Court of Common Pleas of Montgomery County,
               Criminal Division, No(s): CP-46-CR-0004985-2013;
               CP-46-CR-0006154-1991; CP-46-CR-0013261-2001

BEFORE: GANTMAN, P.J., ALLEN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                                 FILED APRIL 29, 2015

        Joseph Jude Casino (“Casino”), pro se, appeals from the judgment of

sentence     entered   following   his   conviction    of    burglary,   possessing

instruments of crime and resisting arrest.1     We reverse the Order denying

post-sentence Motions and remand with instructions.

        Following a bench trial, the trial court convicted Casino of the above-

described charges.      On September 14, 2014, the trial court sentenced

Casino, who was represented by counsel, to an aggregate prison term of six

to twelve years, followed by five years of probation.          Still represented by




1
    18 Pa.C.S.A. §§ 3502(a)(1), 907(a), 5104.
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counsel, on September 16, 2014,2 Casino filed, pro se, a “Motion to Modify

Sentence,”    “Post[-]Sentence   Motion,”   and   a   “Statement   of   Matters

Complained of on Appeal” (collectively, “Post-Sentence Motions”). In these

filings, Casino asserted that he was “pro se, represented by Benjamin

Cooper, Esquire” (“Attorney Cooper”).3 The Motion to Modify Sentence was

filed and time-stamped. The Clerk of Courts further notified the trial court

that “PURSUANT TO RULE Pa.R.Crim.P. 576[,] THE ATTACHED DOCUMENT

HAS BEEN TIME STAMPED AND DOCKETED AS A PRO SE FILING.” There is

no docket entry or notation reflecting that the Clerk of Courts forwarded the

document to Attorney Cooper. Additionally, in pro se correspondence to the

trial court, dated October 5, 2014, Casino again referred to Attorney Cooper

as his lawyer.

      On October 23, 2014, the trial court entered an Order stating that

“upon consideration of the above pro se filing, it is hereby ORDERED AND

DECREED as follows:     … Relief requested is DENIED.”     Trial Court Order,

10/23/14, at 1. A copy of the Order was docketed and mailed to Casino, but

not to Attorney Cooper. See id.


2
  The envelope bore a postage meter mark with the date of September 16,
2014. Under the Prisoner Mailbox Rule, they are to be considered filed as of
the date that that the prisoner handed them to prison officials for mailing.
Commonwealth v. Allen, 48 A.3d 1283, 1285 n.2 (Pa. Super. 2012).
3
  Attorney Cooper represented Casino at trial and sentencing. At the time
Casino filed his post-sentence Motions, Attorney Cooper had not withdrawn
his appearance.



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        Subsequently, Casino mailed a pro se Notice of Appeal to the Clerk of

Courts for Montgomery County. The envelope containing the Notice had a

postage meter mark of October 22, 2014. The Notice indicated that a copy

was sent “BC.” On December 19, 2014, the trial court conducted a hearing

pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), after

which the trial court found that Casino had made a knowing, voluntary and

intelligent decision to waive representation during his direct appeal.     Trial

Court Opinion, 1/15/15, at 3.

        In this appeal, Casino presents 15 claims for our review. However, we

first must determine whether this Court has jurisdiction to entertain Casino’s

appeal. In its Opinion, the trial court deemed Casino’s appeal untimely filed.

Id. at 5. The trial court reasoned that “[w]hen, as here, no legally effective

post-sentence motion was filed, the notice of appeal was required to have

been filed within 30 days after entry of the imposition of sentence.” Id. at

5-6 (citation omitted). However, under the procedural posture of this case,

we conclude that the trial court erred when it denied Casino’s Post-Sentence

Motions as legal “nullities.”

        This Court has held that a defendant’s pro se filings, while represented

by counsel, are legal nullities. Commonwealth v. Nichan, 928 A.2d 349,

355 (Pa. Super. 2007). However, the Rules of Criminal Procedure provide

that,

        [i]n any case in which a defendant is represented by an
        attorney, if the defendant submits for filing a written motion,


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     notice, or document that has not been signed by the defendant’s
     attorney, the clerk of courts shall accept it for filing, time stamp
     it with the date of receipt and make a docket entry reflecting the
     date of receipt, and place the document in the criminal case file.
     A copy of the time stamped document shall be forwarded
     to the defendant’s attorney and the attorney for the
     Commonwealth within 10 days of receipt.

Pa.R.Crim.P. 576(A)(4) (emphasis added).

     In Commonwealth v. Cooper, 27 A.3d 994, 1008 (Pa. 2011), our

Supreme Court addressed the complications caused by pro se filings that are

not forwarded to counsel. In Cooper, a counseled defendant

     was sentenced on Thursday, March 27, 2008, and filed his pro se
     appeal on Monday, March 31, 2008.             The clerk of courts
     accepted the notice of appeal for filing, and made an entry in the
     trial court docket.    The proof of service reflects that [the
     defendant’s] counsel was not served with the pro se filing,
     although [the defendant] served the Commonwealth by first
     class mail.    To make matters worse, the clerk of courts
     apparently did not comply with Criminal Rule 576(A)(4), which
     requires a copy of a pro se filing, made by a counseled
     defendant, to be forwarded to the attorneys in the case. The
     matter was further complicated when the trial judge served his
     1925(b) order on [the defendant] and the Commonwealth, but
     not on appellee’s counsel.[FN]


     [FN] The Comment to Criminal Rule 576(A)(4) indicates that “the
     requirement that the clerk time stamp and make docket entries
     of the filings in these cases only serves to provide a record of the
     filing, and does not trigger any deadline nor require any
     response.” The dissent relies on this disclaimer regarding the
     legal import of the pro se filing as further support for viewing it
     as a nullity, but, in this case, the clerk’s failure to comply
     with the Rule’s mandate that the pro se filing be
     forwarded to counsel undermines that position.                  The
     dissent perceives our view of the Rule’s requirement as
     overburdening the trial court with a duty to “scrutinize such
     filings for after-the-fact significance,” Dissenting Slip Op. at 6,



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      but it provides instead a minimally burdensome safeguard to
      prevent the very confusion that arose here in its breach.

Id. at 1005-06 (one footnote omitted, emphasis added) . In Cooper, the

Supreme Court observed that the failure to notify counsel of a pro se filing

was significant:

      These procedural missteps respecting notice to counsel are
      unexplained: counsel never sought to withdraw his appearance,
      abandoned appellee, or refused to pursue post-sentence motions
      or an appeal on appellee’s behalf. In fact, counsel filed a timely
      post-sentence motion on April 7, 2008, and averred it was filed
      “as per the client’s request.” And, upon denial of the post-
      sentence motion on April 10, 2008 - the “triggering event” for
      the thirty day appeal period under Criminal Rule 720 - counsel
      filed a timely notice of appeal.

      If the clerk of courts had properly notified counsel about the pro
      se notice of appeal, in accordance with Criminal Rule 576(A)(4),
      counsel could have taken action within the thirty day appeal
      period to eliminate the complication caused by the pro se appeal,
      such as withdrawing it.

Id. at 1006. The Supreme Court ultimately concluded that the pro se notice

of appeal, filed by the defendant, was premature, and not a nullity. Id. at

1007. The Supreme Court reasoned that the pro se notice of appeal “was

perfected upon the trial court’s proper consideration and denial of the

counseled post-sentence motions.” Id.

      The procedural posture of the instant case is complicated by Casino’s

numerous pro se filings. Notwithstanding Casino’s inappropriate filings, the

docket includes no entry reflecting that the trial court forwarded Casino’s pro

se Post-Sentence Motions to Attorney Cooper. There also is no evidence of

record that the trial court complied with Rule 576(A)(4). As in Cooper, had


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Attorney Cooper received the pro se filings, he could have filed counseled

motions or a timely notice of appeal.

      This case is further complicated by the fact that, after Casino filed his

pro se Notice of Appeal, he waived his right to counsel following a Grazier

hearing.   The record is not clear as to whether Casino wished to waive

counsel during the post-sentence proceedings. Nevertheless, in the absence

of compliance with Rule 576(A)(4), we conclude that the trial court erred in

denying, as legal nullities, Casino’s pro se Post-Sentence Motions.

      For this reason, we reverse the trial court’s denial of Casion’s Post-

Sentence Motions as legal nullities, and remand for consideration of the

merits of those Motions. On remand, should Casino wish to proceed pro se

during post-sentence proceedings, the trial court is directed to conduct

another Grazier hearing.

      Order denying Post-Sentence Motions reversed; case remanded with

instructions; Superior Court jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/29/2015




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