Com. v. Casino, J. ( 2015 )

J-S24034-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOSEPH JUDE CASINO, :
:
Appellant : No. 3007 EDA 2014
Appeal from the Judgment of Sentence entered on September 10, 2014
in the Court of Common Pleas of Montgomery County,
Criminal Division, No(s): CP-46-CR-0004985-2013;
CP-46-CR-0006154-1991; CP-46-CR-0013261-2001
BEFORE: GANTMAN, P.J., ALLEN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 29, 2015
Joseph Jude Casino (“Casino”), pro se, appeals from the judgment of
sentence entered following his conviction of burglary, possessing
instruments of crime and resisting arrest.1 We reverse the Order denying
post-sentence Motions and remand with instructions.
Following a bench trial, the trial court convicted Casino of the above-
described charges. On September 14, 2014, the trial court sentenced
Casino, who was represented by counsel, to an aggregate prison term of six
to twelve years, followed by five years of probation. Still represented by
1
18 Pa.C.S.A. §§ 3502(a)(1), 907(a), 5104.
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counsel, on September 16, 2014,2 Casino filed, pro se, a “Motion to Modify
Sentence,” “Post[-]Sentence Motion,” and a “Statement of Matters
Complained of on Appeal” (collectively, “Post-Sentence Motions”). In these
filings, Casino asserted that he was “pro se, represented by Benjamin
Cooper, Esquire” (“Attorney Cooper”).3 The Motion to Modify Sentence was
filed and time-stamped. The Clerk of Courts further notified the trial court
that “PURSUANT TO RULE Pa.R.Crim.P. 576[,] THE ATTACHED DOCUMENT
HAS BEEN TIME STAMPED AND DOCKETED AS A PRO SE FILING.” There is
no docket entry or notation reflecting that the Clerk of Courts forwarded the
document to Attorney Cooper. Additionally, in pro se correspondence to the
trial court, dated October 5, 2014, Casino again referred to Attorney Cooper
as his lawyer.
On October 23, 2014, the trial court entered an Order stating that
“upon consideration of the above pro se filing, it is hereby ORDERED AND
DECREED as follows: … Relief requested is DENIED.” Trial Court Order,
10/23/14, at 1. A copy of the Order was docketed and mailed to Casino, but
not to Attorney Cooper. See id.
2
The envelope bore a postage meter mark with the date of September 16,
2014. Under the Prisoner Mailbox Rule, they are to be considered filed as of
the date that that the prisoner handed them to prison officials for mailing.
Commonwealth v. Allen, 48 A.3d 1283, 1285 n.2 (Pa. Super. 2012).
3
Attorney Cooper represented Casino at trial and sentencing. At the time
Casino filed his post-sentence Motions, Attorney Cooper had not withdrawn
his appearance.
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Subsequently, Casino mailed a pro se Notice of Appeal to the Clerk of
Courts for Montgomery County. The envelope containing the Notice had a
postage meter mark of October 22, 2014. The Notice indicated that a copy
was sent “BC.” On December 19, 2014, the trial court conducted a hearing
pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), after
which the trial court found that Casino had made a knowing, voluntary and
intelligent decision to waive representation during his direct appeal. Trial
Court Opinion, 1/15/15, at 3.
In this appeal, Casino presents 15 claims for our review. However, we
first must determine whether this Court has jurisdiction to entertain Casino’s
appeal. In its Opinion, the trial court deemed Casino’s appeal untimely filed.
Id. at 5. The trial court reasoned that “[w]hen, as here, no legally effective
post-sentence motion was filed, the notice of appeal was required to have
been filed within 30 days after entry of the imposition of sentence.” Id. at
5-6 (citation omitted). However, under the procedural posture of this case,
we conclude that the trial court erred when it denied Casino’s Post-Sentence
Motions as legal “nullities.”
This Court has held that a defendant’s pro se filings, while represented
by counsel, are legal nullities. Commonwealth v. Nichan, 928 A.2d 349,
355 (Pa. Super. 2007). However, the Rules of Criminal Procedure provide
that,
[i]n any case in which a defendant is represented by an
attorney, if the defendant submits for filing a written motion,
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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).
In Commonwealth v. Cooper, 27 A.3d 994, 1008 (Pa. 2011), our
Supreme Court addressed the complications caused by pro se filings that are
not forwarded to counsel. In Cooper, a counseled defendant
was sentenced on Thursday, March 27, 2008, and filed his pro se
appeal on Monday, March 31, 2008. The clerk of courts
accepted the notice of appeal for filing, and made an entry in the
trial court docket. The proof of service reflects that [the
defendant’s] counsel was not served with the pro se filing,
although [the defendant] served the Commonwealth by first
class mail. To make matters worse, the clerk of courts
apparently did not comply with Criminal Rule 576(A)(4), which
requires a copy of a pro se filing, made by a counseled
defendant, to be forwarded to the attorneys in the case. The
matter was further complicated when the trial judge served his
1925(b) order on [the defendant] and the Commonwealth, but
not on appellee’s counsel.[FN]
[FN] The Comment to Criminal Rule 576(A)(4) indicates that “the
requirement that the clerk time stamp and make docket entries
of the filings in these cases only serves to provide a record of the
filing, and does not trigger any deadline nor require any
response.” The dissent relies on this disclaimer regarding the
legal import of the pro se filing as further support for viewing it
as a nullity, but, in this case, the clerk’s failure to comply
with the Rule’s mandate that the pro se filing be
forwarded to counsel undermines that position. The
dissent perceives our view of the Rule’s requirement as
overburdening the trial court with a duty to “scrutinize such
filings for after-the-fact significance,” Dissenting Slip Op. at 6,
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but it provides instead a minimally burdensome safeguard to
prevent the very confusion that arose here in its breach.
Id. at 1005-06 (one footnote omitted, emphasis added) . In Cooper, the
Supreme Court observed that the failure to notify counsel of a pro se filing
was significant:
These procedural missteps respecting notice to counsel are
unexplained: counsel never sought to withdraw his appearance,
abandoned appellee, or refused to pursue post-sentence motions
or an appeal on appellee’s behalf. In fact, counsel filed a timely
post-sentence motion on April 7, 2008, and averred it was filed
“as per the client’s request.” And, upon denial of the post-
sentence motion on April 10, 2008 - the “triggering event” for
the thirty day appeal period under Criminal Rule 720 - counsel
filed a timely notice of appeal.
If the clerk of courts had properly notified counsel about the pro
se notice of appeal, in accordance with Criminal Rule 576(A)(4),
counsel could have taken action within the thirty day appeal
period to eliminate the complication caused by the pro se appeal,
such as withdrawing it.
Id. at 1006. The Supreme Court ultimately concluded that the pro se notice
of appeal, filed by the defendant, was premature, and not a nullity. Id. at
1007. The Supreme Court reasoned that the pro se notice of appeal “was
perfected upon the trial court’s proper consideration and denial of the
counseled post-sentence motions.” Id.
The procedural posture of the instant case is complicated by Casino’s
numerous pro se filings. Notwithstanding Casino’s inappropriate filings, the
docket includes no entry reflecting that the trial court forwarded Casino’s pro
se Post-Sentence Motions to Attorney Cooper. There also is no evidence of
record that the trial court complied with Rule 576(A)(4). As in Cooper, had
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Attorney Cooper received the pro se filings, he could have filed counseled
motions or a timely notice of appeal.
This case is further complicated by the fact that, after Casino filed his
pro se Notice of Appeal, he waived his right to counsel following a Grazier
hearing. The record is not clear as to whether Casino wished to waive
counsel during the post-sentence proceedings. Nevertheless, in the absence
of compliance with Rule 576(A)(4), we conclude that the trial court erred in
denying, as legal nullities, Casino’s pro se Post-Sentence Motions.
For this reason, we reverse the trial court’s denial of Casion’s Post-
Sentence Motions as legal nullities, and remand for consideration of the
merits of those Motions. On remand, should Casino wish to proceed pro se
during post-sentence proceedings, the trial court is directed to conduct
another Grazier hearing.
Order denying Post-Sentence Motions reversed; case remanded with
instructions; Superior Court jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/2015
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