Com. v. Persaud, M. ( 2019 )

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2019 PA Super 236COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MICHAEL ANTHONY PERSAUD
Appellant : No. 1615 MDA 2018
Appeal from the Judgment of Sentence Entered August 29, 2018
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0002009-2016
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
OPINION BY MURRAY, J.: FILED AUGUST 05, 2019
Michael Anthony Persaud (Appellant) appeals from the judgment of
sentence imposed after a jury convicted him of multiple crimes under The
Controlled Substance, Drug, Device and Cosmetic Act, including possession of
a controlled substance (35 P.S. § 780-113(a)(16)); possession with the intent
to deliver a controlled substance (PWID) (35 P.S. § 780-113(a)(30)); criminal
conspiracy to commit PWID (18 Pa.C.S.A. § 903/35 P.S. § 780-113(a)(30));
criminal use of communication facility (18 Pa.C.S.A. § 7512(a)); and
possession of drug paraphernalia (35 P.S. § 780-113(a)(32)). Additionally,
Appellant's counsel, Henry W. Fenton, Esquire (Counsel), seeks to withdraw
from representation pursuant to Anders v. California, 38 U.S. 738 (1967),
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review,
we grant Counsel's petition to withdraw and affirm Appellant's judgment of
sentence.
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The trial court detailed the protracted and irregular post -trial procedural
history of this case as follows:
On September 20, 2017, Appellant waived Rule 704(A)(1) of
the Pennsylvania Rules of Criminal Procedure (requiring a
sentence be imposed within ninety days after conviction).
Appellant declared that he knowingly waived said provisions after
consultation with his then Counsel. Appellant waived said right so
that he could be transported to Rhode Island for a guilty plea and
sentencing on federal charges pending in that jurisdiction.
Appellant acknowledged that he would be sentenced in the case
sub judice upon his return to the Lebanon County Correction
Facility. The [trial c]ourt, after consideration of Appellant's
waiver; that he was, at the time, in Federal Prison in Rhode Island;
and would be sentenced on the federal charges in early January,
granted Appellant's request to continue sentencing from
November 15, 2017 until January 31, 2018.
On January 31, 2018, [] Appellant was sentenced, by the
Honorable Charles T. Jones, Jr., to pay the costs of prosecution;
fines in the total amount of two thousand six hundred dollars
($2,600.00); and undergo imprisonment in a State Correctional
Institution for an indeterminate period the minimum of which to
be ninety-six (96) months and the maximum of which shall be
thirty (30) years (consecutive to his Rhode Island Federal
Sentence) with an RRR-I minimum sentence of seventy-two (72)
months.
On February 9, 2018, Appellant filed a Pro Se Motion for
Modification of Sentence. In his Motion for Modification[,]
Appellant states that his [c]ounsel did not do the following:
present accurate Pre -Sentence Investigation information, present
letters from family and friends of [] Appellant, failed to inform the
[c]ourt that the Federal Judge who sentenced Appellant prior to
this [c]ourt's sentencing recommended that this [c]ourt run its
sentence concurrent to Appellant's federal sentence, and explain
to the [c]ourt that some of the Pre -Sentence Investigation
information was incorrect.
Further, Appellant complained that the [c]ourt was incorrectly
under the impression that [] Appellant had served a full sentence
of six (6) years for a prior conviction, when Appellant alleges he
was sentenced to ninety (90) days in jail and six (6) years and
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nine (9) months suspended time and probation. [] Appellant
explained in his Motion that he had attended a substance abuse
program for eight (8) weeks while in Federal custody awaiting
sentencing and graduation from the program. Finally, a part of
Appellant's Federal Sentence included a one (1) year outpatient
substance abuse program that Appellant would have to attend
once a week until completed, followed by two (2) years of
supervised release. The [c]ourt subsequently entered a
Scheduling Order for disposition of Appellant's Motion on February
13, 2018. On February 12, 2018, three days after filing his Motion
for Modification of Sentence, Appellant wrote a Pro Se letter to the
Honorable President Judge John C. Tylwalk regarding his
sentencing and obstacles in his life, both past and present.
On February 21, 2018, after receipt of the [c]ourt's scheduling
Order, Attorney Timothy T. Engler (who had represented
Appellant at trial) filed a Petition to Withdraw as Counsel.
Attorney Engler stated in his Petition that a conflict of interest
existed in his continuing representation of Appellant because
Appellant had alleged three instances of ineffectiveness of
[c]ounsel at the post-trial/sentencing phase of the case. The
[c]ourt scheduled a hearing for March 7, 2018, to decide Attorney
Engler's Petition to Withdraw his Appearance. The Courthouse
was closed on March 7, 2018, in anticipation of a severe, winter
snowstorm, and the Petition to Withdraw was rescheduled for April
4, 2018.
Appellant timely filed a Brief in Support of his Motion for
Modification of Sentence on March 8, 2018. The Commonwealth
filed a Motion for Continuance/Extension on March 19, 2018,
which was granted and the Commonwealth thereafter filed its
Brief in Opposition on April 2, 2018.
On March 22, 2018, prior to the re -scheduled hearing on
Attorney Engler's Petition to Withdraw Appearance, Harry W.
Fenton, Esquire entered his appearance on behalf of the Appellant.
On April 4, 2018, the Court granted Attorney Engler's Petition to
Withdraw his Appearance. On April 5, 2018, Appellant, through
his new Counsel, filed a Motion for Leave to File a Supplemental
Brief in Support of his Motion for Modification of Sentence.
Appellant's Motion was granted by the Court on April 6, 2018.
Appellant was given twenty (20) days to file a Supplemental Brief.
Appellant filed his Supplemental Brief in Support of his Motion on
April 24, 2018. On June 6, 2018, after careful consideration of
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Appellant's Brief and Supplemental Brief, as well as consideration
of the Commonwealth's Opposition Brief, the [c]ourt granted
Appellant's Motion and scheduled the case for a Modification of
Sentence Hearing. The [c]ourt did so to ensure that Appellant's
sentence would be based on all available, accurate information.
On August 29, 2018, [] Appellant was re -sentenced. The
[c]ourt, after consideration of the pre -sentence investigation
report; the voluminous amount of letters that were given to the
[c]ourt on that day and at the initial sentencing; the fact that the
2007 sentence was not a six (6) year incarceration sentence; the
guideline ranges; and the testimony presented at trial, and that
day, sentenced Appellant to pay the costs of prosecution; fines in
the total amount of two thousand six hundred dollars ($2,600.00);
and undergo imprisonment in a State Correctional Institution for
an indeterminate period the minimum of which to be eighty-four
(84) months and the maximum of which shall be twenty-five (25)
years (consecutive to his Rhode Island Federal Sentence) with an
RRR-I minimum sentence of sixty-three (63). The August 29,
2018 sentence in this case reflected a nine (9) month RRRI
sentence reduction, a twelve (12) month minimum -sentence
reduction, and a five (5) year maximum -sentence reduction when
compared to Appellant's original sentence imposed on January 31,
2018.
Thereafter, on September 18, 2018, Counsel for Appellant filed
a Transcript Request seeking the transcript of the entire
proceeding. Appellant filed a Pro Se Motion in Limine with Respect
to [the] I -Phone 6 and USB Seized from [Appellant]. [Appellant]
requested that the Commonwealth be barred from using his I -
Phone 6 and USB as evidence against him, and both be returned
to Appellant. The [c]ourt denied Appellant's Pro Se Motion in
Limine on September 21, 2018. Concurrently, Appellant filed a
Pro Se Petition to Proceed In Forma Pauperis. Appellant's Petition
was granted on October 4, 2018.
On September 26, 2018, Appellant filed a Pro Se Notice of
Appeal. The Court entered an Order on October 4, 2018, directing
Appellant, by and through his Counsel, to file a Concise Statement
of Errors Complained of on Appeal no later than twenty-one (21)
days from the entry of said Order (October 26, 2018). The Order
further provided that any issues not properly preserved and/or
included in the Concise Statement of Errors Complained of on
Appeal would be deemed waived. Appellant untimely filed his Pro
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Se Concise Statement of Matters Complained of on Appeal on
October 29, 2018. However, the Court notes that Appellant's
mailing envelope was post -marked October 24, 2018, and . . .
thus address[ed] Appellant's claims.
Trial Court Opinion, 11/21/18, at 4-7. On November 8, 2018, Counsel also
filed a Rule 1925(b) statement on behalf of Appellant.
Hybrid Representation
At the outset, we are compelled to address the hybrid representation
that occurred in the trial court once Appellant, on September 26, 2018, filed
the timely pro se notice of appeal, despite being represented by Counsel.
It is well -settled that an appellant does not have a right to proceed both
pro se and with the benefit of counsel. Such representation is considered
"hybrid" representation and is prohibited within the Commonwealth. See
Commonwealth v. Staton, 184 A.3d 949, 958 (Pa. 2018) (no defendant has
a constitutional right to self -representation together with counseled
representation "either at trial or on appeal"); see also Commonwealth v.
.7ette, 23 A.3d 1032, 1036 (Pa. 2011) (citing Pennsylvania's long-standing
policy that precludes hybrid representation). The Pennsylvania Supreme
Court has expressly stated that "[c]onsistent with Rule [of Criminal Procedure]
576, decisional law from this Court has clarified Commonwealth policy
regarding hybrid representation. No defendant has a right to hybrid
representation, either at trial or on appeal." Commonwealth v. Padilla, 80
A.3d 1238, 1259 (Pa. 2013) (italics in original, citations omitted), cert. denied,
Padilla v. Pennsylvania, --- U.S. ---, 134 S. Ct. 2725 (2014). "Our
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Supreme Court has stated that Rule 576(A)(4), requiring the prothonotaries
to forward all pro se filings to counsel upon receipt, reflects this policy."
Commonwealth v. Leatherby, 116 A.3d 73, 86 (Pa. 2015) (citation
omitted).
The above notwithstanding, we recognize that when an appellant is
represented by counsel at the time he files a pro se notice of appeal, the
appeal has effect and is not a nullity. See Commonwealth v. Cooper, 27
A.3d 994, 1007 (Pa. 2011) (holding that a pro se notice of appeal from a final
judgment filed by a represented appellant is not automatically void).
However, "the proper response to any pro se pleading is to refer the pleading
to counsel, and to take no further action on the pro se pleading unless counsel
forwards a motion." Jette, 23 A.3d at 1044 (emphasis added). Moreover,
pro se documents that require merits review, i.e., motions, Pa.R.A.P. 1925(b)
statements, petitions, briefs, etc., are legal nullities when they are filed by a
defendant represented by counsel. Commonwealth v. Nischan, 928 A.2d
349, 355 (Pa. Super. 2007); Commonwealth v. Ali, 10 A.3d 282, 293 (Pa.
2010) (pro se 1925(b) statement a nullity).
The policy against hybrid representation is "driven primarily by the
problems of competing filings from an appellant and his counsel."
Commonwealth v. Glacken, 32 A.3d 750, 753 (Pa. Super. 2011). In
Glacken, a represented appellant sought relief from the denial of his first
PCRA petition; he filed a pro se notice of appeal, pro se Rule 1925(b)
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statement and pro se appellate brief with this Court, while his "counsel of
record [did] not file[] anything." Id. at 752. Under those circumstances, this
Court distinguished .7ette, noting that "we do not have competing filings from
[appellant] and his counsel. Instead, we have only a pro se brief in a case
where counsel was never permitted to withdraw and [the appellant] never
waived his right to counsel." Id. at 753. Ultimately, the Glacken court
concluded that it was "constrained to quash [appellant]'s appeal for lack of a
counseled brief."' Id.Unlike the attorney in Glacken, Counsel in this case has filed an Anders
brief. However, we would be remiss if we overlooked the hybrid
representation that preceded Counsel's appellate brief. For example,
Appellant filed his notice of appeal pro se. After the trial court ordered
compliance with Pennsylvania Rule of Appellate Procedure 1925(b), both
Appellant, acting pro se, and Counsel, thereafter, filed 1925(b) statements.
See Ali, 10 A.3d at 293 (defendant's pro se Pa.R.A.P. 1925(b) statement was
a legal nullity because defendant was represented by counsel); see also Trial
Court Opinion, 11/21/18, at 7.
Specifically, the record reveals the following filings:
" This Court further instructed, "Should [appellant] choose to file another PCRA
petition . and the PCRA court appoints counsel, appointed counsel must"
. .
file a brief, where "from the record it appears that current counsel did neither,
to the detriment of his client." Glacken, 32 A.3d at 753 (italics in original).
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Trial Court
August 29, 2018 Trial court imposes judgment of sentence
September 26, 2018 Appellant files pro se notice of appeal
October 5, 2018 Trial court orders Appellant to file Rule 1925(b)
statement within 21 days, with the order sent to
both Appellant and Counsel
October 29, 2018 Appellant files pro se Rule 1925(b) statement
with the prison envelope from SCI Houtzdale
postage -stamped October 24, 2018
November 8, 2018 Counsel "files"
Appellant's Rule 1925(b)
statement, consisting of an exact copy of
Appellant's pro se 1925(b) statement, with
Counsel's typed annotation, "Attached is the
Statement of Matters On Appeal, filed by
Defendant, erroneously filed in the Superior
Court, and returned from that Court as
improvidently submitted."
Superior Court
November 15, 2018 Counsel files application to withdraw as counsel
with this Court, stating he "has advised
Appellant that he believes the appeal has no
merit and is frivolous. If any brief were to be
filed by [Counsel], it would be filed pursuant to
Anders v. California, 386 U.S. 738 (1967).
[Appellant] believes that the appeal has merit.
[Appellant] wishes to file his own brief and does
not want an "Anders Brief" to be filed. Attached
as Exhibit A, and in accordance with
Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), is a "no -merit" memorandum."
November 27, 2018 Order of Superior Court denying Counsel's
application to withdraw from representation
because Counsel "filed an application to
withdraw as counsel and an accompanied
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memorandum in accordance with
Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988) and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988). However, the
instant matter is an appeal from a judgment of
sentence. . [such that] counsel is directed to
.
file with the Prothonotary of this Court an
amended application to withdraw as counsel
within thirty (30) days of this order and an
Anders brief once a briefing schedule has been
established."
December 12, 2018 Counsel files Anders brief in this Court along
with another application to withdraw from
representation this time citing Anders
April 11, 2019 Appellant files pro se response to Anders brief
April 16, 2019 Appellee files brief on behalf of the
Commonwealth
After scrutinizing the record, we conclude that our appellate review is
not impeded by hybrid representation. In the interest of judicial economy, we
proceed with appellate review.
Anders Analysis
On December 12, 2018, Counsel filed an Anders brief and
accompanying petition to withdraw as counsel in which he argues that
Appellant's appeal is frivolous. When faced with an Anders brief, this Court
may not review the merits of any issues without first examining counsel's
request to withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.
Super. 2007) (en banc). Prior to withdrawing as counsel on direct appeal
under Anders, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Santiago, namely:
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(1) provide a summary of the procedural history and facts, with
citations to the record;
(2) refer to anything in the record that counsel believes arguably
supports the appeal;
(3) set forth counsel's conclusion that the appeal is frivolous; and
(4) state counsel's reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361. Additionally:
Counsel also must provide copy of the Anders brief to his client.
a
Attending the brief must be a letter that advises the client of his
right to: "(1) retain new counsel to pursue the appeal; (2)
proceed pro se on appeal; or (3) raise any points that the
appellant deems worthy of the court[']s attention in addition to
the points raised by counsel in the Anders brief."
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, only then may this Court "conduct an independent review of
the record to discern if there are any additional, non -frivolous issues
overlooked by counsel." Commonwealth v. Flowers, 113 A.3d 1246, 1250
(Pa. Super. 2015) (citations and footnote omitted).
Here, Counsel's Anders brief complies with the above requirements. He
includes a summary of the relevant factual and procedural history; refers to
the portions of the record and relevant authority that could arguably support
Appellant's claim; and sets forth the conclusion that the appeal is frivolous
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and that no other issues could be raised. See Anders Brief at 4-11.
Additionally, Counsel has supplied Appellant with a copy of the Anders brief
and a letter explaining the rights enumerated in Nischan, supra. See id. at
13; Petition to Withdraw as Counsel, 12/12/18, Exhibit A. Thus, because
Counsel has complied with the technical requirements for withdrawal, we
proceed to independently review the record to determine if the issue Counsel
presents in the Anders brief is frivolous, and ascertain whether there are non -
frivolous issues Appellant may pursue on appeal.
Counsel's Anders brief raises a single issue for our review: whether
the trial court abused its discretion in sentencing Appellant to consecutive, as
opposed to concurrent, sentences on his convictions. See Anders Brief at 8.
This claim challenges the discretionary aspects of Appellant's sentence.
"The right to appellate review of the discretionary aspects of a sentence
is not absolute, and must be considered a petition for permission to appeal."
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).
"An appellant must satisfy a four-part test to invoke this Court's jurisdiction
when challenging the discretionary aspects of a sentence." Id. We conduct
this four-part test to determine whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[ -]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set forth
a concise statement of reasons relied upon for the allowance of
his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
raises a substantial question for our review.
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Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted). "A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process."
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013)
(quotations and citations omitted).
Appellant has failed to preserve this issue for our review. The re -
sentencing hearing transcript contains no objection from Appellant that the
sentence he received was unreasonable. Furthermore, following his re -
sentencing, Appellant failed to file a post -sentence motion for reconsideration
of his sentence. Accordingly, Appellant's challenge to the discretionary
aspects of his sentence is waived. See Commonwealth v. Austin, 66 A.3d
798, 808 (Pa. Super. 2013) (noting that an appellant must preserve a
challenge to the discretionary aspects of his sentence in a timely post -
sentence motion).
Finally, our independent review of the record reveals no other non -
frivolous issues that Appellant could raise on appeal. See Flowers, 113 A.3d
at 1250. We thus grant Counsel's petition to withdraw and affirm Appellant's
judgment of sentence.
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Petition to withdraw granted. Judgment of sentence affirmed.
Judge Musmanno joins the opinion.
Judge Stabile files a concurring/dissenting opinion.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 8/5/2019
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