J-S34042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

JORDAN ANTHONY BATTY

                            Appellee                No. 1961 MDA 2015


               Appeal from the Order Entered October 29, 2015
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0002942-2015


BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                            FILED JUNE 29, 2016

        The Commonwealth appeals the order entered on October 29, 2015 in

the Court of Common Pleas of York County granting Appellee Jordan

Anthony Batty a new trial. We vacate the October 29, 2015 order granting a

new trial, vacate the judgment of sentence, and remand for re-sentencing.

        On September 11, 2015, a jury convicted Batty of receiving stolen

property, firearms not to be carried without a license, and possession of a

firearm prohibited.1

        On October 29, 2015, at the sentencing hearing, the trial judge

informed Batty that he believed that either Batty’s trial counsel was

ineffective during his closing argument or that the trial court erred when it

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1
    18 Pa.C.S. §§ 3925(a), 6106(a)(1), and 6105(a)(1), respectively.
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issued its jury instructions.2 The trial court suggested that Batty should

waive his appellate rights and make an oral motion for relief pursuant to the

Post Conviction Relief Act (“PCRA”),3 which the trial court would grant. The

proceeding included the following exchanges:



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2
    The trial court stated:

           Now, the reason that I just had the discussion with counsel
           is that I believe that we’ve sort of gotten ourselves in legal
           bind of sorts, which comes from the fact that your attorney
           made an argument in closing and in my instructions of the
           law I told the jury that that argument that he made was
           legally flawed in some manner and obviously [they are]
           most likely to accept that argument.

           Now, the problem with that is, it’s a double edged sword.
           That is, one, I may have been mistaken when he said that,
           and may[]be when you take your appeal, the Superior
           Court will say, Judge, you made a mistake and we’re
           giving this guy a new trial.

           But if they say that I was right, then you are going to
           come in on post conviction and say my counsel didn’t do
           things right because he made this argument and the judge
           said that the argument was wrong, it was flawed. And at
           that point you would likely be entitled to new trial on that
           basis.

           So to me it doesn’t matter which one of those is the
           vehicle for it, whether they say that I made the mistake or
           whether he made the mistake. The bottom line that you
           didn’t have an argument that was legally correct and in my
           mind, therefore, you are entitled to new trial.

N.T., 10/29/2015, at 3-4.
3
    42 Pa.C.S. §§ 9541-9546.



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       THE DEFENDANT: I don’t want to waive nothing. I don't
       really know, this ain’t a good counsel for me. So I don't
       really know if it’s good to waive it or it ain’t. So I would
       rather go through the legal process, get it sentenced, if I
       could, and take time to read this, and go through the
       regular legal process.

       THE COURT: Well, as I explained to you, you have that
       right. Now, if you do that, there is no guarantee that you’ll
       win on appeal. I mean, obviously I think that I was legally
       correct.

       THE DEFENDANT: There is no way that I can because this
       is –

       THE COURT: We don’t know which one you’ll win on. In my
       opinion you win on either the appeal or the post
       conviction, but, if you don’t win on the appeal, that’s going
       to be a year down the road.

       [DEFENSE COUNSEL]: What the Judge is trying to tell you
       is, if you go forward with his proposition today, he’s going
       to grant you a new trial, which could happen within the
       next month or the next 2 or 3 trial terms. If you don’t go
       with his suggestion, you’ll have to file an appeal. A
       decision on that appeal would not be made for another 8
       to 12 months down the road, and you would be sitting in
       prison for that entire period of time, okay. Once that
       appeal comes down, and if the appeal of the Superior
       Court agrees with my argument and disagrees with the
       Judge, you get a new trial on that basis and that would
       happen within 8 to 12 months from this date. If they
       uphold the Judge’s decision, then you have to file a claim
       and that claim would have to be given a new hearing date,
       okay. So now we are 8 to 12 months down the line. You
       file a PCRA motion, the Judge would have to schedule that
       hearing, that would probably be another 30 to 60 days
       down from that time. We have a hearing and the Judge
       would indicate at that point in time he would most likely
       find me ineffective, based upon the arguments that you
       just heard, and you would be granted new trial at that
       period of time.

       So now you are looking for another 3 or 4 months down
       the road for that one and you would be back on the trial
       list. They don’t have to try you right away, they have

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       period of time to try you again, which would be another 6
       months.

       So what the Judge is telling you, it’s another period of time
       between 12 and 24 months before you get a new trial, but
       if you go along with this proposition today, you can skip
       that time period of two years and go immediately to the
       new trial, which should happen within the next two
       months.

       THE COURT: Legally --sir, legally it doesn’t matter whether
       we do it the way I’m suggesting today or we get it on
       appeal or we get it on post conviction. Once you get it, no
       matter how you get it, you’ll be in exactly the same legal
       position regardless. Nothing will be different as a result of
       the method, the only thing that will be affected will be how
       soon it happens.

       THE DEFENDANT: Yeah. This dude has been fouling me for
       so long, I don’t know what to believe with him in the
       process.

       THE COURT: Well, I’m telling you this. He’s agreeing with
       me obviously because he’s just explained it to you in a
       little different words, but he said exactly the same thing
       that I said.

       THE DEFENDANT: But I just- -

       THE COURT: I mean, all I’m doing this for is time. It seems
       to me it’s beneficial to you because you are not sitting in
       jail. And it’s beneficial to the DA because two years from
       now if they have to retry it, who knows if they’ll have their
       witnesses or anything else. Your know, a lot of things can
       change in two years. So to me, it’s beneficial for both
       sides to – if it’s going to happen, get it over right away and
       get the new trial scheduled and whatever happens
       happens.

       THE DEFENDANT: But if it was beneficial my suppression
       motions would have been granted and all of that. If they
       really cared about me getting back to my family.

       THE COURT: Nobody is saying that they care about you
       getting back to your family.

       THE DEFENDANT: I know they don’t.

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        THE COURT: The DA is trying to convict you and send you
        to jail.

        THE DEFENDANT: That’s why I would rather go-through
        the legal process and follow things through.

N.T., 10/29/2015, at 7-10. Following another attempt by the trial court to

persuade Batty to waive his appellate rights and make a PCRA motion, the

following exchange occurred:

        THE DEFENDANT: Could you wait a minute?

        THE COURT: Yes.

        THE DEFENDANT: I’m still sticking by the same thing. I
        would just rather still file by the regular process until I can
        get a new attorney for that.

        THE COURT: Well, you are not going to get a new
        attorney, if you are not given a new trial.

        THE DEFENDANT: I’m going to get a new trial, I’m putting
        my faith in it.

        THE COURT: Well, but for the purposes of the appeal, you
        are going to have your present counsel, just so that you
        understand that. If you accept a new trial today, then you
        get a new attorney. If you say I don’t want that, I want to
        proceed with my appeal, then you proceed with this
        attorney on the appeal.

        Now, when you get to -- if your appeal is denied and you
        file a post conviction, however long that might be down
        the road, then you would be entitled to a new attorney,
        but just for the post conviction.      And if in the post
        conviction another judge is involved and denies your post
        conviction, you’ll never get a new trial. Or you can take a
        guaranteed one right now. I can’t make it any clearer than
        that.

        So if you want a new trial right now and a new attorney
        right now, then we have to proceed directly to your post
        conviction because that’s the only basis that I have to
        grant a new trial. Otherwise I wipe my hands of the case.


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       THE DEFENDANT: I’ve been asking for a new attorney this
       whole time and [one] should have been given to me. And I
       gave reason after reason.

       THE COURT: I have no control over that. Judge Renn had
       a hearing on that, he denied your request, and it’s a closed
       issue, as far as I’m concerned. Unless your post conviction
       is granted and you are given a new trial, in which case you
       get a new attorney.

       THE DEFENDANT: So I’m still sticking by filing for
       ineffective counsel.

       THE COURT: That’s fine. As long as you understand that
       this attorney is going to continue to represent you on your
       appeal, you have to complete your appeal before you can
       file post conviction and that it’s going to be a substantial
       period of time, probably at least year, could be even more.

       [DEFENSE COUNSEL]: Do you understand that?

       THE DEFENDANT:        I’ll   file   ineffective   counsel.   I’ll
       understand it.

       THE COURT: I'm sorry?

       THE DEFENDANT: I’m filing for ineffective counsel, I
       understand, and wait for a year.

       [DEFENSE COUNSEL]: You understand that you have to
       exhaust your appeal first before you file a PCRA.

       THE DEFENDANT: That’s cool. We do post sentence
       motions and appeals.

       [COMMONWEALTH]: Okay, then.

       THE COURT: And you understand that the most that can
       happen by going that route is that they’ll give you new
       trial and you instead could have one right now guaranteed.
       Is there somebody back there who can talk to him?

       [COMMONWEALTH]: Your Honor, at this point, Your Honor,
       let’s just proceed. I'm going to –

       THE COURT: He’s got some people in the audience, give
       him second.



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        [COMMONWEALTH]: I don’t know that I’m okay with it any
        more. Your Honor, can we approach briefly?

        THE COURT: Sure.

        (Whereupon, discussion was conducted off the record at
        side bar.)

        [DEFENSE COUNSEL]: Your Honor, at this time I would
        just request some time for my client to finish reviewing the
        PSI in its entirety and note any errors or omissions.

        THE DEFENDANT: You say with the – what’s the thing
        again, if you take it to trial right now, I don’t have to read
        this?

        THE COURT: Well, I have to sentence you before anything
        else can happen.

        [COMMONWEALTH]: And, Your Honor, I apologize; at this
        point I would object to him waiving that and proceeding to
        PCRA. I think there [are] too many issues and I think we
        should go through the normal channels.

        THE COURT: You can object obviously, but if he wants to
        waive his appeal rights, he has the right to do it. You don't
        have any control over that.

        [COMMONWEALTH]: Okay.

        THE COURT: And then the question would be, is he entitled
        to file an oral motion to the [c]ourt, and that’s up to the
        [c]ourt. And then the next question, do we need to
        schedule full hearing on it, since the issues would be
        matters relating to what happened at trial, and since we all
        heard that already, I would have the discretion to proceed
        without that. However, you would have the right to appeal
        that. . . .

N.T., 10/29/2015, at 13-19.    The trial court again explained the proposed

procedure and discussed when the next possible trial date would be, and the

following exchange occurred:

        THE DEFENDANT: But I would be given a new attorney and
        not the same one right here?

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        THE COURT: Correct. So are you changing your mind and
        saying that you are willing to proceed in a fashion that I’m
        recommending and take a new trial today?

        THE DEFENDANT: Yeah.

        THE COURT: Are you sure now? If you agree to that, you
        can’t come back later and say, gee, I wish I had taken my
        appeal. I don’t know why you would do that because you
        are getting a new trial on appeal or you are getting new
        trial this way and doesn’t really make much difference. But
        you have to tell me, I’m willing to accept a new trial today.

        THE DEFENDANT: And what does that do, do I waive?
        What would you waive?

        THE COURT: Well, you waive, in effect is the right to take
        your appeal --the purpose of which would be to get new
        trial.

        THE DEFENDANT: So if I waive that, right, and take the
        new trial today and find that new lawyer that you give me
        is ineffective, I would be able to file another appeal?

        THE COURT: Yes.

        THE DEFENDANT: I’m ready to do that then.

        THE COURT: Okay. And you understand that at this point
        you are not agreeing to that, but you understand that I
        have the right to do it regardless if I --in my discretion.

        [ADA LOMBARDO]: Your Honor, I apologize, I’m with our
        appellate unit. Attorney Fisher contacted me, he had a
        question about the process and I’m here in my appellate
        capacity. We note our objection for the record, and we’ll
        leave it at that. We understand Your Honor’s ruling.

N.T., 10/29/2015, at 20-21. The trial court then sentenced Batty to 5 to 10

years’ imprisonment for possession of a firearm prohibited, a concurrent

sentence of 3½ to 7 years’ imprisonment for possession of a firearm without




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J-S34042-16



a license, and a consecutive 2½ to 5 years’ imprisonment for receiving

stolen property.     Id.

       The trial court then explained the agreement reached, i.e., that Batty

agreed to waive his appellate rights and make a PCRA motion for relief. The

trial court then ordered that Batty receive a new trial4 and ordered that new

counsel be appointed.        N.T., 10/29/2015, at 29-30.   The Commonwealth

again noted its objection. Id. at 35-37.

       On November 6, 2015, the Commonwealth filed a timely notice of

appeal.     Both the Commonwealth and the trial court complied with

Pennsylvania Rule of Appellate Procedure 1925.

       The Commonwealth raises the following issues on appeal:

          1. The trial court erred in granting [Batty] a new trial
          under the [PCRA]. The trial court made no findings as to
          the basis for which a new trial was granted. Further, the
          trial court did not analyze the Pierce[5] prongs in
          determining whether trial counsel provided effective
          representation.

          2. The trial court erred in granting [Batty] a new trial
          under the [PCRA] where the trial court believed it may
          have given an improper jury instruction. Whether the trial
          court erred in its instructions to the jury is an issue that
          could have been raised on direct appeal. Because [Batty]
          did not file a direct appeal, the jury instruction issue is
          waived for PCRA purposes under 42 Pa.C.S. § 4544. As
____________________________________________


4
  The trial court stated that “it’s granting a new trial without determining
whether it was the [c]ourt’s mistake or defense counsel’s mistake.” N.T.,
10/29/2015, at 33.
5
    Commonwealth v. Pierce, 527 A.2d 973, 975–76 (Pa.1987).



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         that issue is waived, the trial court’s jury instructions
         cannot serve as a basis for relief under the PCRA.
         Accordingly, the trial court erred in granting [Batty] relief.

         3. The trial court erred in granting [Batty] a new trial
         under the [PCRA] based on the alleged ineffectiveness of
         counsel. No evidentiary hearing was conducted that
         allowed trial counsel to testify as to his actions and the
         strategy behind them. Further, the trial transcripts show
         that trial counsel acted reasonably and that [Batty] was
         not prejudiced by trial counsel’s actions. Accordingly, the
         trial court erred in granting [Batty] a new trial.

Appellant’s Brief at 4-5. Batty’s counsel did not file an appellate brief.

      We cannot condone the process followed by the trial court.             The

appellate and post-conviction review process is in place to ensure that all

parties receive a fair and impartial proceeding. Here, the trial court skipped

both avenues for relief, the appellate process and the post-conviction

process. The trial court provided no law in support of his decision to avoid

these avenues. Rather, the trial court found that either the trial court erred

when instructing the jury or counsel was ineffective during his closing

argument, without providing legal analysis in support of this conclusion.

      Trial courts are not permitted to bypass the appellate and post-

conviction proceedings, particularly where the parties are not in agreement

with the proposed resolution.       Here, the Commonwealth noted it was

uncomfortable with the proposed procedure and objected, both before and

after sentencing.   Further, although Batty ultimately orally agreed to waive

his right to appeal, this agreement occurred only after the trial court made

numerous attempts to convince him to do so and after the trial court



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repeatedly informed Batty that he would receive a new trial and new counsel

if he waived his appellate rights.

       Because the trial court did not follow the proper procedure, we will

vacate the order granting a new trial and vacate Batty’s judgment of

sentence.

       Further, although the trial court appointed new counsel for Batty,

counsel has not filed an appellate brief.6         It is recommended that the trial

court appoint new counsel to assist Batty at sentencing and in further

proceedings.

       Order vacated.        Convictions affirmed, but judgment of sentence

vacated. Remand for re-sentencing. Jurisdiction relinquished. We further

direct the Prothonotary to send a copy of this memorandum to Appellee’s

counsel and to Appellee at his state correctional institution address.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2016

____________________________________________


6
  Further Batty has written this Court on two occasions and, in one filing, has
stated that he has not had contact with counsel since November of 2015,
despite efforts to reach him.      The communications were forwarded to
counsel, unfiled.



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