J-S41019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TYREE T. HUGHES

                            Appellant                No. 1984 MDA 2016


                 Appeal from the PCRA Order November 9, 2016
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0002049-2006
                            CP-36-CR-0003979-2005
                            CP-36-CR-0003996-2005


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

MEMORANDUM BY LAZARUS, J.:                             FILED JULY 21, 2017

        Tyree T. Hughes (“Hughes”) appeals pro se from the order, entered in

the Court of Common Pleas of Lancaster County, dismissing as untimely his

pro se petition, filed August 25, 2016, pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, the certified

record reveals that Hughes’ previous pro se PCRA petition remains

unresolved and Hughes’ court-appointed attorney still appears to be counsel

of record. Under these circumstances, the PCRA court improperly permitted

hybrid representation by accepting Hughes’ March 23, 2009 pro se PCRA


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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petition while he continued to be represented by appointed counsel. Thus,

we quash this appeal.

       On October 6, 2006, a jury convicted Hughes of three counts of

robbery, four counts of criminal conspiracy to commit robbery, robbery of a

motor vehicle, criminal conspiracy to commit robbery of a motor vehicle, and

possession of a firearm without a permit.        The Honorable Michael A.

Georgelis sentenced Hughes to fifteen to thirty years’ imprisonment on

December 21, 2006. Judge Georgelis denied Hughes’ motion to vacate on

February 27, 2007, and Hughes filed a timely notice of appeal. On April 2,

2008, this Court affirmed the judgment of sentence.      Before the April 2,

2008 ruling, Hughes filed his first pro se PCRA petition on March 28, 2008.

The PCRA court appointed counsel, who filed an amended PCRA petition on

August 6, 2008.     The PCRA court held a hearing on Hughes’ petition on

December 22, 2008. While said PCRA petition was pending, Hughes filed a

second PCRA petition, pro se, on March 23, 2009.

      On July 22, 2009, the Honorable Jeffrey D. Wright granted relief on

Hughs’ claim of ineffective assistance of counsel raised in Hughes’ counseled

amended petition of August 2008.     The Commonwealth appealed and, on

September 1, 2010, this Court reversed the PCRA court’s decision granting a

new trial.   Hughes filed a petition for allowance of appeal in the Supreme

Court of Pennsylvania, which was denied on February 16, 2011.




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         On August 25, 2016, Hughes filed the instant PCRA petition,

characterized as a “Motion to Amend and/or Supplement” his March 2009

pro se petition. See Motion to Amend and/or Supplement Petition for Post

Conviction Relief Act, 08/25/16, at 1.           The PCRA court found this petition

untimely and issued a notice, pursuant to Pa.R.Crim.P. 907, informing

Hughes of its intention to dismiss the PCRA petition.               The PCRA court

granted Hughes’ motion requesting an extension to respond to the Rule 907

notice. Hughes filed his response on October 31, 2016, and on November 9,

2016, the PCRA court dismissed Hughes’ petition for failing to meet the

PCRA’s statutory timeliness requirements.

        On December 2, 2016, Hughes filed the instant notice of appeal. The

PCRA court issued an order for Hughes to file his Pa.R.A.P. 1925(b) concise

statement of matters complained of on appeal by January 2, 2017. Hughes

filed   his   Rule   1925(b)     statement     on   January   12,   2017,1   and   the

Commonwealth responded to Hughes’ statement on January 30, 2017. The

PCRA court filed its opinion pursuant to Rule 1925(a) on January 31, 2017,

concluding that Hughes’ appeal should be dismissed due to his facially

untimely PCRA petition, which failed to allege any exception to the PCRA’s

timeliness requirement.

____________________________________________


1
  See Commonwealth v. Smith, 854 A.2d 597, 599-600 (Pa. Super. 2004)
(holding that a trial court has discretion whether to accept an untimely
concise statement).



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       On appeal, Hughes raises the following issue for our review:

       Whether the Court committed an error of law by deeming PCRA
       untimely, and in not permitting appellant an evidentiary hearing
       to substantiate [sic] claims of (actual innocence and miscarriage
       of justice) filed where appellant asserts that he was prejudice[d]
       due to a judicial breakdown of procedure by the Court which was
       the result of government interference.

Appellant’s Brief, at v.

       The record in this case does not indicate a disposition of Hughes’

March 23, 2009 pro se PCRA petition.             Additionally, the record does not

reveal that counsel of record in the 2008 petition was permitted to withdraw,

or that Hughes ever requested to proceed pro se or waived his right to

counsel.2 Accordingly, we consider Hughes’ instant petition as filed while he

was represented by counsel. This Court has held that an appellant’s pro se

filings while represented by counsel are without legal effect.                See

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

(appellant’s pro se motion while represented by counsel is legal nullity); see

also Pa.R.Crim.P. 576(4); Pa.R.A.P. 3304.

       “[T]here is no constitutional right to hybrid representation either at

trial or on appeal.”      Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa.

1993) (holding no constitutional right to hybrid representation exists and

Superior Court did not err by refusing to review pro se filings of represented
____________________________________________


2
  See Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (“When a
waiver of the right to counsel is sought at the post-conviction and appellate
stages, an on-the-record determination should be made that the waiver is a
knowing, intelligent, and voluntary one.”).



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appellant).   Thus, this Court may not review the pro se filings of a

represented appellant. Id. at 1141. Although this case differs from Ellis in

that we do not have competing petitions from both Hughes and his counsel,

it is clear that “an appellant must either allow his attorney to represent him

or request permission to proceed pro se.” Commonwealth v. Glacken, 32

A.3d 750, 753 (Pa. Super. 2011) (noting that language of Pa.R.A.P. 3304

and Pennsylvania Supreme Court ruling in Ellis required appellant’s appeal

be quashed for lack of counseled brief where counsel was never permitted to

withdraw and appellant never waived right to counsel).

      Therefore, the PCRA court’s acceptance of Hughes’ March 2009 and

August 2016 pro se filings, and its dismissal of his August 2016 pro se

petition, was erroneous and has no legal effect.    See Commonwealth v.

Willis, 29 A.3d 393, 400 (Pa. Super. 2011) (holding PCRA court erred by

addressing pro se PCRA petition filed by represented petitioner); see also

Commonwealth v. Pursell, 724 A.2d 293, 302 (Pa. 1999) (applying Ellis

rationale prohibiting hybrid representation in PCRA proceedings, stating

“[w]e will not require courts considering PCRA petitions to struggle through

the pro se filings of defendants when qualified counsel represents those

defendants”). We conclude, therefore, that there is currently no final order

disposing of Hughes’ PCRA claims from which he may appeal, and we are

constrained to quash the instant appeal.

      Appeal quashed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2017




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