J-S51001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KENNETH JOHN SHAFFER

                            Appellant                No. 2682 EDA 2015


              Appeal from the Judgment of Sentence July 7, 2015
                In the Court of Common Pleas of Wayne County
              Criminal Division at No(s): CP-64-CR-0000042-2006


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                           FILED JUNE 03, 2016

       Appellant, Kenneth John Shaffer, appeals from the judgment of

sentence entered in the Wayne County Court of Common Pleas, following his

guilty plea to rape of a child, involuntary deviate sexual intercourse (“IDSI”),

statutory sexual assault, aggravated indecent assault, indecent exposure,

and corruption of minors.1 We remand with instructions.

       This Court previously set forth most of the relevant facts and

procedural history of this case as follows:

          On May 12, 2006, [Appellant] pled guilty to two counts
          each of aggravated indecent assault and corruption of a
          minor, and one count each of rape of a child, [IDSI],
____________________________________________


1
  18 Pa.C.S.A. §§ 3121(c), 3123(a)(7), 3122.1, 3125(a)(7), 3125(a)(8),
3127(a), 6301(a)(1), respectively.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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          statutory sexual assault and [indecent exposure].      On
          September 11, 2006, the trial court sentenced [Appellant]
          to an aggregate sentence of 16 years and 6 months to 45
          years in prison.        [Appellant] filed a Motion for
          reconsideration of sentence, which the trial court denied.
          Thereafter, the Commonwealth filed a Petition to Amend
          Sentence, averring that there was an error in the
          sentencing computation, but that the total sentence
          imposed was appropriate. On December 14, 2012, the
          trial court entered an Order which clarified that
          [Appellant’s] total sentence is 15 years and 6 months to
          45 years in prison. Subsequently, on February 28, 2013,
          the trial court entered another Order that amended the
          December 14, 2012 sentencing Order to read that
          [Appellant’s] total sentence is 16 years and 6 months to
          45 years in prison.

          On July [19], 2013, [Appellant], pro se, filed [a Post
          Conviction Relief Act (“PCRA”)2] Petition. The PCRA court
          appointed Attorney Collins as counsel. Attorney Collins
          filed an amended PCRA Petition on [Appellant’s] behalf
          alleging improper sentencing on the rape of a child count.
          The PCRA court and the Commonwealth agreed that a
          sentencing error was made in relation to the rape of a child
          count. Accordingly, the PCRA court vacated the sentence
          imposed on that count only. On [March 4], 2014, following
          a hearing, the PCRA court resentenced [Appellant] solely
          on the rape of a child count to 66 months to 20 years in
          prison. Based on this resentencing, [Appellant’s] new total
          aggregate sentence was 16 to 45 years in prison.
          [Appellant] filed a Motion for reconsideration of sentence,
          which the PCRA court denied on March [12], 2014.

Commonwealth           v.    Shaffer,      No.   1085   EDA   2014,   unpublished

memorandum at 1-3 (Pa.Super. filed November 26, 2014) (footnotes

omitted).

        On November 26, 2014, this Court vacated Appellant’s judgment of
____________________________________________


2
    42 Pa.C.S.A. §§ 9541-9546.



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sentence in its entirety and remanded for resentencing on all counts. 3 The

trial court resentenced Appellant on July 7, 2015, to consecutive terms of

incarceration of five-and-one-half (5½) to twenty (20) years for rape of a

child, five (5) to ten (10) years for IDSI, one (1) to five (5) years for

statutory sexual assault, two-and-one-half (2½) to five (5) years for

aggravated indecent assault (victim less than 13 years of age), and two (2)

to five (5) years for aggravated indecent assault (victim less than 16 years

of age). The court also imposed concurrent terms of incarceration of three

(3) months to two (2) years for indecent exposure, and six (6) months to

two (2) years for each count of corruption of minors.      Thus, Appellant’s

aggregate sentence was sixteen (16) to forty-five (45) years’ incarceration.

       Immediately following resentencing, Attorney Collins withdrew and the

court appointed new counsel “for purposes of [Appellant’s] appeal only.”

(See Order, filed July 7, 2015). On July 15, 2015, Appellant filed a pro se

post-sentence motion, which the court denied on August 3, 2015, without

notice to counsel of record. Appellant filed a counseled notice of appeal on

September 1, 2015. The court ordered Appellant to file a concise statement

of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b), with

notice to counsel of record. Appellant filed a pro se Rule 1925(b) statement
____________________________________________


3
  This Court explained: “[W]e cannot determine from our review of the
record whether the declared invalidity of the sentence on the rape of a child
count would have affected the trial court’s sentencing on the remaining
counts[.]” Id. at 3.



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on October 9, 2015. The court issued its Rule 1925(a) opinion on October

23, 2015, in response to Appellant’s pro se Rule 1925(b) statement.

Counsel filed an amended Rule 1925(b) statement on November 30, 2015.

      Appellant raises the following issues for our review:

           WHETHER [APPELLANT] WAS DENIED A FAIR SENTENCING
           HEARING BY THE COURT’S REFUSAL TO APPOINT AN
           EXPERT AND HOLD A HEARING ON [APPELLANT’S] SVP
           STATUS WHICH RESULTED IN A LINGERING FAILURE OF
           STRUCTURAL DUE PROCESS IN THIS SENTENCING
           PROCEEDING.

           WHETHER THE SENTENCE IMPOSED ON [APPELLANT] WAS
           AN ILLEGAL SENTENCE BY VIRTUE OF THE SENTENCING
           COURT’S IMPOSITION OF A MECHANICAL SENTENCE,
           RATHER THAN AN INDIVIDUALIZED SENTENCE, MERELY
           DESIGNED TO REIMPOSE A PREVIOUSLY IMPOSED
           SENTENCE RATHER THAN AS A PRODUCT OF A CAREFUL
           WEIGHING OF THE SENTENCING FACTORS IN 42
           PA.C.S.A. § 9721, IN VIOLATION OF THE FUNDAMENTAL
           NORMS OF THE SENTENCING PROCESS.

           WHETHER THE SENTENCE IMPOSED ON [APPELLANT] WAS
           ILLEGAL BY VIRTUE OF THE FACT THAT IT VIOLATED DUE
           PROCESS AND EQUAL PROTECTION AS THE RECORD
           SUPPORTS A PRESUMPTION THAT THE SENTENCE
           IMPOSED HEREIN SERVED TO VINDICATE A PRIOR
           SENTENCE IMPOSED BY THE COURT AND WAS NOT AN
           INDIVIDUALIZED SENTENCE IMPOSED THROUGH REVIEW
           AND CONSIDERATION OF THE SENTENCING FACTORS
           UNDER 42 PA.C.S.A. § 9721.

(Appellant’s Brief at 4).

      As    a   preliminary    matter,    “When     counsel    is   appointed,    …the

appointment     shall   be    effective   until   final   judgment,   including    any

proceedings upon direct appeal.”            Pa.R.Crim.P. 122(B)(2).        See also

Commonwealth v. Corley, 31 A.3d 293 (Pa.Super. 2011) (stating


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defendant’s Sixth Amendment right to counsel extends through post-

sentence and direct appeal stages).               Further, a defendant has no

constitutional    right   to   self-representation    together   with   counseled

representation (“hybrid representation”) at the trial level or on appeal.

Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137 (1993).                    “An

accused’s pro se actions have no legal effect while defense counsel remains

authorized to represent the accused in all aspects of the proceedings.”

Commonwealth v. Hall, 476 A.2d 7, 9-10 (Pa.Super. 1984). Pennsylvania

Rule of Criminal Procedure 576 states in relevant part:

         Rule 576. Filing and Service by Parties

         (A)     Filing

                                    *    *    *

         (4) In any case in which a defendant is represented by
         an attorney, if the defendant submits for filing a written
         motion, 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).

      Instantly, on July 24, 2013, the court appointed Attorney Collins to

represent Appellant in PCRA proceedings.             That appointment remained

effective through Appellant’s resentencing on March 4, 2014, Appellant’s

direct appeal from the judgment of sentence entered on that date, and


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Appellant’s most recent resentencing on July 7, 2015. Immediately following

imposition of Appellant’s current sentence, the court granted Attorney

Collins’ request to withdraw.         The court simultaneously appointed new

counsel, Joseph McGraw, Esq., but stated the appointment was for purposes

of Appellant’s appeal only. Attorney McGraw did not file any post-sentence

motions on Appellant’s behalf. Appellant, however, filed a pro se motion for

reconsideration of sentence within ten days of imposition of sentence.

Appellant at no point waived his right to counsel for any stage of the

proceedings.      Therefore, by the terms of the court’s order, Appellant was

effectively denied his right to counsel during the entire ten-day window he

had   to   file   a   timely   post-sentence   motion.   Assuming   the   court’s

appointment of Attorney McGraw was effective immediately, Appellant’s pro

se motion for reconsideration of sentence would have constituted prohibited

hybrid representation, requiring the clerk of courts to forward the filing to

counsel of record. See Pa.R.Crim.P. 576(A)(4); Hall, supra. Nevertheless,

the court ruled on Appellant’s pro se motion for reconsideration of sentence,

and the certified record contains no indication that the clerk of courts ever

forwarded the motion to Attorney McGraw, pursuant to Rule 576.

      Additionally, Attorney McGraw filed a notice of appeal on September 1,

2015. The court issued a Rule 1925(b) order on September 14, 2015, with

notice to counsel of record.       While still represented by counsel, Appellant

filed a pro se Rule 1925(b) statement on October 9, 2015.           The certified

record does not indicate that the clerk of courts ever forwarded Appellant’s

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pro se Rule 1925(b) statement to Attorney McGraw.                  The court issued its

Rule 1925(a) opinion on October 23, 2015, in response to the issues in

Appellant’s pro se Rule 1925(b) statement. Attorney McGraw subsequently

filed an “amended” Rule 1925(b) statement on November 30, 2015, well

beyond the twenty-one day deadline and apparently without leave of court.

See     Pa.R.A.P.    1925(b)(2).          These   procedural    irregularities   implicate

Appellant’s fundamental right to counsel and constitute a breakdown in the

court’s operation, which resulted in Appellant’s waiver of any discretionary

aspects of sentencing claims he now raises on appeal. Moreover, the trial

court    had   no    opportunity     to    address   those     claims.     Under    these

circumstances, we conclude the best resolution of this matter is to restore

Appellant to the position he would have occupied, absent these procedural

irregularities.     Thus, we remand the case to the trial court for further

proceedings. Within ten (10) days of the filing date of this decision, counsel

shall confer with Appellant and file a post-sentence motion nunc pro tunc

raising any appropriate sentencing claims Appellant wishes to pursue, after

which Appellant can file a nunc pro tunc appeal in due course.4 Accordingly,

we remand with instructions.

        Case remanded with instructions. Jurisdiction is relinquished.
____________________________________________


4
  The trial court imposed Appellant’s current sentence following remand from
this Court, which directed the trial court to resentence Appellant on all
counts. Therefore, Appellant can raise issues related to and within the scope
of this Court’s previous remand (sentencing only).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/3/2016




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