Com. v. Hughes, T. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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