Com. v. Sovann, S. ( 2015 )


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  • J-S33027-15
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
    COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
    :      PENNSYLVANIA
    Appellee              :
    :
    v.                            :
    :
    SOPHANA SOVANN,                            :
    :
    Appellant             : No. 1230 EDA 2014
    Appeal from the PCRA Order April 4, 2014,
    Court of Common Pleas, Philadelphia County,
    Criminal Division at No. CP-51-CR-0012793-2008
    BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and LAZARUS, JJ.
    MEMORANDUM BY DONOHUE, J.:                             FILED JULY 23, 2015
    Sophana Sovann (“Sovann”) appeals pro se from the order entered on
    April 4, 2014 by the Philadelphia County Court of Common Pleas, Criminal
    Division, dismissing his petition filed pursuant to the Post-Conviction Relief
    Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.        Upon review, we remand for a
    hearing pursuant to Commonwealth v. Grazier, 
    713 A.2d 81
     (Pa. 1998) to
    determine if Sovann desires to proceed pro se, and if he does not, the
    appointment of new counsel.
    This case presents a procedural quagmire resulting from the repeated
    appointment and disappearance of PCRA counsel. On January 14, 2010, a
    jury found Sovann guilty of third-degree murder, criminal conspiracy, and
    firearms not to be carried without a license.1 On March 26, 2010, the trial
    1
    18 Pa.C.S.A. §§ 2502(c), 903(a)(1), 6106(a)(1).
    J-S33027-15
    court sentenced Sovann to a cumulative sentence of thirty to sixty years of
    incarceration. On April 26, 2010, Sovann filed a timely counseled notice of
    appeal.   Subsequently, on September 1, 2010, while represented by
    counsel, Sovann filed a pro se PCRA petition and the PCRA court deferred
    consideration of that petition pending the outcome of his direct appeal. On
    September 14, 2011, the Superior Court of Pennsylvania affirmed Sovann’s
    judgment of sentence.      On March 27, 2012, the Supreme Court of
    Pennsylvania denied his petition for allowance of appeal. In the meantime,
    on October 4, 2011, the PCRA court appointed Lee Mandell (“Attorney
    Mandell”) to represent Sovann throughout his PCRA proceedings.
    On April 5, 2012, following the disposition of Sovann’s direct appeal,
    the PCRA court appointed Joseph Scott O’Keefe (“Attorney O’Keefe”) to
    represent Sovann. It is unclear from the certified record what happened to
    Attorney Mandell. On June 12, 2012, Sovann filed a pro se amended PCRA
    petition and on June 22, 2012, Attorney O’Keefe filed a counseled amended
    PCRA petition on behalf of Sovann.     On July 12, 2012, the PCRA court
    permitted Attorney O’Keefe to withdraw, though it is unclear from the record
    why the PCRA court permitted Attorney O’Keefe to withdraw. On July 17,
    2012, the PCRA court appointed Barnaby Wittels (“Attorney Wittels”) to
    represent Sovann.
    On July 11, 2013, the Commonwealth filed a motion to dismiss
    Sovann’s PCRA petition.    On November 8, 2013, the PCRA court issued
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    notice pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure
    advising Sovann that the PCRA court found his PCRA petition to be without
    merit.   The PCRA court sent the Rule 907 notice to Attorney Wittels.     On
    November 25, 2013, Sovann filed a pro se response to the PCRA court’s Rule
    907 notice. On April 4, 2014, the PCRA court formally dismissed Sovann’s
    PCRA petition.   That same day, Sovann, pro se, filed this timely appeal.
    Once again, it is unclear what happened to Attorney Wittels and why he did
    not file a response to the Rule 907 notice or notice of appeal on behalf of
    Sovann. Both Sovann’s and the Commonwealth’s briefs indicate that upon
    dismissing Sovann’s PCRA petition, the PCRA court permitted Attorney
    Wittels to withdraw. See Sovann’s Brief at 8; Commonwealth’s Brief at 7.
    However, based upon our review, there is no indication in the record that
    the PCRA court permitted Attorney Wittels to withdraw.
    On May 12, 2014, the PCRA court ordered Sovann to file a concise
    statement of the errors complained of on appeal pursuant to Rule 1925(b) of
    the Pennsylvania Rules of Appellate Procedure. On May 21, 2014, Sovann
    filed a pro se Rule 1925(b) statement. On July 1, 2014, after Sovann filed
    his pro se notice of appeal and pro se Rule 1925(b) statement, the PCRA
    court appointed Todd Michael Mosser (“Attorney Mosser”) to represent
    Sovann. On August 29, 2014, following an extension, Attorney Mosser filed
    a counseled Rule 1925(b) statement on behalf of Sovann. On December 2,
    2014, Sovann filed a pro se brief with this Court on appeal. Yet again, it is
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    unclear why Attorney Mosser did not submit either an advocate’s brief on
    Sovann’s behalf or a petition to withdraw as counsel because there is no
    evidence of record indicating that the PCRA court permitted Attorney Mosser
    to withdraw.
    This case reflects several missteps on the part of the Philadelphia
    County Court of Common Pleas, the several appointed attorneys in this case,
    and this Court. First, the PCRA court repeatedly allowed the attorneys who
    were representing Sovann to apparently abandon him. The PCRA Court only
    granted Attorney O’Keefe formal permission to withdraw. None of Sovann’s
    other attorneys received permission to withdraw.          A defendant, for a first
    PCRA    petition,   is   “entitled   to   a   counseled   amended   petition   and
    representation before the PCRA court” as well as counsel on appeal.
    Commonwealth v. Figueroa, 
    29 A.3d 1177
    , 1182 (Pa. Super. 2011). Rule
    904(F)(2) of the Pennsylvania Rules of Criminal Procedure specifically states
    that “[w]hen counsel is appointed … the appointment of counsel shall be
    effective throughout the post-conviction collateral proceedings, including any
    appeal from disposition of the petition for post-conviction collateral relief.”
    Pa.R.Crim.P. 904(F)(2). Rule 120(B)(1) further states that “[c]ounsel for a
    defendant may not withdraw his or her appearance except by leave of
    court.” Pa.R.Crim.P. 120(B)(1).
    Second, the record contains several pro se filings in the PCRA court
    that Sovann filed at times when he was represented by counsel. “It is well
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    established in this Commonwealth that a defendant is not entitled to hybrid
    representation.”   Commonwealth v. Morgan, 
    39 A.3d 419
    , 420 (Pa.
    Super. 2012).      Rule 576(A)(4) of the Pennsylvania Rules of Criminal
    Procedure provides:
    (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).
    The Clerk of Courts of Philadelphia County did not fully comply with
    the procedure set forth in Rule 576(A)(4) when Sovann filed his pro se
    response to the PCRA court’s Rule 907 notice, his pro se notice of appeal, or
    his pro se Rule 1925(b) statement.      Specifically, while the Clerk of Courts
    properly docketed each of those pro se filings, there is no indication that the
    Clerk of Courts forwarded them to the counsel of record at the time of the
    filings so that they could take action on those documents. This is especially
    true in the case of the pro se response to the Rule 907 notice and the pro se
    notice of appeal. Attorney Wittels, who was counsel of record when Sovann
    filed both documents, did nothing on Sovann’s behalf. Attorney Mosser did
    file a counseled Rule 1925(b) statement on Sovann’s behalf, however, the
    -5-
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    record does not reveal whether he received Sovann’s pro se Rule 1925(b)
    statement.
    Third, because there is no indication that the PCRA court permitted
    Attorney Mosser to withdraw from representation, this Court should not have
    accepted for filing Sovann’s pro se appellate brief.          Rule 3304 of the
    Pennsylvania   Rules   of   Appellate   Procedure,    which    governs   hybrid
    representation, provides that “[w]here a litigant is represented by an
    attorney before the Court and the litigant submits for filing a petition,
    motion, brief or any other type of pleading in the matter, it shall not be
    docketed but forwarded to counsel of record.”        Pa.R.A.P. 3304; see also
    Commonwealth v. Jette, 
    23 A.3d 1032
    , 1041 (Pa. 2011) (“[W]henever a
    defendant is represented by an attorney and the defendant files a pro se
    motion with the court, the filing will not be docketed and will be forwarded to
    counsel for his consideration.”).    Therefore, pursuant to Rule 3304 and
    Jette, this Court should have forwarded Sovann’s pro se brief to Attorney
    Mosser, which did not occur.
    Given the confusion resulting from the misapplication of the rules of
    appellate and criminal procedure in this case and the abject failure of
    Attorney Mosser to take any action in this Court on behalf of his client, we
    remand this case for a Grazier2 hearing, to be held within 30 days of the
    2
    “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
    -6-
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    date of this order, to determine whether Sovann wishes to proceed in this
    appeal pro se. We emphasize, however, that because this is Sovann’s first
    PCRA petition, he is entitled to counsel. See Figueroa, 
    29 A.3d at 1182
    .
    We order the PCRA court to immediately inform this Court if Sovann is
    allowed to proceed pro se. In that event, we will decide the appeal on the
    filed briefs.
    If Sovann is to be represented by counsel, we order the PCRA court to
    appoint him new counsel.    In that event, once appointed, Sovann’s new
    counsel must, within thirty days of the date of his or her appointment, file
    either an advocate’s brief on Sovann’s behalf or a petition to withdraw and
    corresponding no-merit letter pursuant to Commonwealth v. Turner, 
    544 A.2d 927
     (Pa. 1988) and Commonwealth v. Finley, 
    550 A.2d 213
     (Pa.
    Super. 1988) (en banc) if he or she believes there is no merit to Sovann’s
    appeal.3    The Commonwealth shall then have thirty days from the date
    Sovann’s new counsel files either an advocate’s brief or a petition to
    withdraw and no-merit letter to file a response.       Additionally, should
    Sovann’s new counsel file a petition to withdraw and no-merit letter, Sovann
    waiver is a knowing, intelligent, and voluntary one.” Grazier, 713 A.2d at
    82.
    3
    Should new counsel choose to file a petition to withdraw and no-merit
    letter, we remind him that he must fully comply with the Turner/Finley
    mandates in order to be permitted to withdraw.                See, e.g.,
    Commonwealth v. Wrecks, 
    931 A.2d 717
    , 721 (Pa. Super. 2007).
    -7-
    J-S33027-15
    shall then have thirty days from the date of the filing of those documents to
    file his own pro se response.
    Case remanded. Panel jurisdiction retained.
    Lazarus, J. joins the Memorandum.
    Ford Elliott, P.J.E. files a Concurring Memorandum Statement in which
    Lazarus, J. joins.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 7/23/2015
    -8-
    

Document Info

Docket Number: 1230 EDA 2014

Filed Date: 7/23/2015

Precedential Status: Non-Precedential

Modified Date: 12/13/2024