Com. v. Adewumi, D. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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