J-S07028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

DAVID A. ADEWUMI

                            Appellant                    No. 1900 MDA 2014


             Appeal from the Judgment of Sentence June 26, 2014
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0001367-2013
-------------------------------------------------------------------------------------

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

DAVID ADEYALO ADEWUMI

                            Appellant                    No. 1901 MDA 2014


             Appeal from the Judgment of Sentence June 26, 2014
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0001694-2013


BEFORE: BOWES, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                              FILED FEBRUARY 12, 2016

        David Adeyalo Adewumi appeals from the judgment of sentence

imposed on June 26, 2014, his following his open guilty plea to three counts

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S07028-16



of false reporting and one count each of institutional vandalism and criminal

mischief.1    Adewumi received an aggregate sentence of one to four years’

incarceration. In this timely appeal, Adewumi claims the trial court erred in

determining his claim of receiving an excessive sentence was waived.          He

also raises a claim that his sentence was excessive. Following a thorough

review of the submissions by the parties, relevant law, and the certified

record, we affirm.

        Our review of the certified record reveals that while incarcerated in the

Centre County Correctional Facility, Adewumi claimed to have been

indecently assaulted by correctional officers on three occasions; the basis of

the false reporting charges. The Commonwealth also alleged Adewumi had

intentionally broken a fire sprinkler head, resulting in the institutional

vandalism and criminal mischief charges.         Adewumi initially represented

himself at trial, with Casey McClain, Esq., as stand-by counsel. On June 26,

2014, in the middle of his jury trial, Adewumi elected to plead guilty to the

above listed charges.          Additionally, Adewumi sought reappointment of

Attorney McClain to represent him during the guilty plea.        The trial court

accepted the plea and, without objection, the Commonwealth moved for

immediate sentencing.




____________________________________________


1
    18 Pa.C.S. §§ 3307(a)(3) and 3304(a)(5), respectively.



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        While still represented by Attorney McClain, Adewumi filed a timely pro

se post-sentence motion asking that the court allow him to withdraw his

guilty plea, vacate his sentence, and for the trial judge to recuse himself and

for a new trial. Subsequently, Attorney McClain orally moved to be relieved

as counsel. This motion was granted and new counsel was appointed. The

pro se motion was forwarded to counsel, who filed an amended post-

sentence motion on September 23, 2014. A hearing on the amended motion

was held on October 23, 2014, at which time the Commonwealth raised the

argument that the amended motion was untimely because the original pro

se motion, filed while Adewumi still had counsel, was a legal nullity.

Adewumi’s counsel argued the relationship between Adewumi and prior

counsel had deteriorated and prior counsel had essentially abandoned

Adewumi, forcing Adewumi to file the pro se motion to protect his rights.

Adewumi then argued only his claim regarding having received an excessive

sentence.2

        On October 28, 2014, the trial court denied Adewumi’s post-sentence

motion, finding the claim had been waived by failing to preserve the issue in

a timely post-sentence motion.

        It   is   well   settled   that   a   defendant   in   the   Commonwealth   of

Pennsylvania has no right to hybrid representation; that is, filing pro se


____________________________________________


2
    Adewumi abandoned all his other claims at the hearing.



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documents while represented by counsel. See Commonwealth v. Faulk,

21 A.3d 1196 (Pa. Super. 2011).

       First, Appellant had no right to file a pro se motion because he
       was represented by counsel. [Commonwealth v.] Ellis, 626
       A.2d [1137] at 1139 [(Pa. 1993)]. This means that his pro se
       post-sentence motion was a nullity, having no legal effect.
       Commonwealth v. Piscanio, 530 Pa. 293, 608 A.2d 1027,
       1029 n. 3 (1992).

Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007).

       Because Adewumi’s motion was a legal nullity, his challenge to the

discretionary     aspect    of    his   sentence   was   not   preserved.   See

Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015)

(challenge to discretionary aspect of sentence must be preserved either at

sentencing or in a post-sentence motion).

       Accordingly, the trial court properly disregarded Adewumi’s pro-se

post-sentence motion and its determination that counsel’s subsequent post-

sentence motion was untimely was correct.3

       Judgment of sentence affirmed.

       Judge Bowes joins the memorandum.

       Judge Fitzgerald concurs in the result.


____________________________________________


3
  We acknowledge that Adewumi has claimed his trial counsel abandoned
him, thereby forcing him to file his motion pro se. However, no evidence
was presented on this claim and the trial court made no determinations
regarding that claim. Therefore, we believe this issue is properly developed
in a PCRA petition.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/2016




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