Com. v. Sanchez, V.

J-S32038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VINCENT JAMES SANCHEZ :
:
Appellant : No. 494 EDA 2019
Appeal from the Judgment of Sentence Entered June 1, 2018
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0004142-2017
BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED JULY 15, 2019
Vincent James Sanchez (Appellant) appeals from the judgment of
sentence imposed after he pled guilty to burglary of an overnight
accommodation with persons present, 18 Pa.C.S.A. § 3502(a)(1)(ii). Upon
review, we affirm.
The charges arose from an incident that occurred on October 15, 2017,
when Appellant, while wearing a mask and carrying a firearm, attempted to
gain entry by force into a residence in Bethlehem, Pennsylvania. N.T., 6/1/18,
at 10-11. On June 1, 2018, Appellant appeared before the trial court and pled
guilty. That same day, pursuant to a negotiated plea agreement, the trial
court sentenced Appellant to 4 to 8 years of incarceration.
On June 13, 2018, Appellant pro se filed a motion for reconsideration of
sentence with the trial court. On June 18, 2018, the trial court issued an order
stating that it would not consider the motion because Appellant was still
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represented by Northampton County Assistant Public Defender Rory Driscole.
Trial Court Order, 6/18/18. See also Pa.R.A.P. 3304 (“Where a litigant is
represented by an attorney before the Court and the litigant submits for filling
a petition, motion, brief or any other type of pleading in the matter, it shall
not be docketed but forwarded to counsel of record.”). The pro se filing was
referred to Attorney Driscole, who was instructed “to take any action deemed
appropriate on [Appellant’s] behalf.” Id. (footnote omitted).
On July 5, 2018, Appellant pro se filed a second motion for
reconsideration. The trial court responded on July 7, 2018 by again noting
that it would not consider the motion because Attorney Driscole was still
Appellant’s counsel of record. Trial Court Order, 7/7/18. Attorney Driscole
was again instructed “to take any action deemed appropriate on [Appellant’s]
behalf.” Id. (footnote omitted).
On August 1, 2018, the trial court granted Attorney Driscole leave to
withdraw as Appellant’s counsel. On August 13, 2018, Appellant filed a pro
se petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§
9541-9546. On August 17, 2018, the trial court appointed PCRA counsel, who
filed an amended PCRA petition on October 26, 2018. In his petition, Appellant
argued, inter alia, that Attorney Driscole provided ineffective assistance of
counsel for failing to file a direct appeal. Appellant’s Amended PCRA Petition,
10/26/18, at 2. The trial court convened a hearing on November 11, 2018,
and thereafter, both parties submitted briefs.
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On January 2, 2019, the trial court granted Appellant “leave to file a
direct appeal of his June 1, 2018 sentence in the above-captioned matter,
nunc pro tunc, within twenty (20) days[.]” Trial Court Order, 1/2/19, at 1.
The trial court, however, declined to review “the merits of any of the other
issues raised in [Appellant’s] PCRA petition[.]” Id. at 3 (citing
Commonwealth v. Harris, 114 A.3d 1 (Pa. Super. 2015)).
Appellant filed a notice of appeal on January 18, 2019, and an amended
notice of appeal on January 24, 2019.1 Both Appellant and the trial court have
complied with Pennsylvania Rule of Appellate Procedure 1925.
Appellant presents a single issue for our review, challenging the
discretionary aspects of his sentence. See Appellant’s Brief at 9. “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
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1 Appellant’s January 18, 2019 notice of appeal incorrectly listed the order
being appealed from as the January 2, 2019 trial court order granting him
leave to file his appeal nunc pro tunc. See Appellant’s Notice of Appeal,
1/18/19. Appellant filed an amended notice of appeal on January 24, 2019
which correctly stated the order being appealed from as his June 1, 2018
judgment of sentence. See Appellant’s Amended Notice of Appeal, 1/24/19.
By order filed March 20, 2019, this Court directed the Superior Court
Prothonotary “to amend the Superior Court docket in the above-captioned
appeal to reflect that the ‘Order Appealed From’ is June 1, 2018.” Order,
3/20/19.
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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
appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted).
Here, Appellant has filed a timely notice of appeal and included in his
brief a Rule 2119(f) concise statement. See Appellant’s Brief at 13-15.
However, Appellant has failed to preserve his discretionary claim by raising it
at the time of sentencing or in a post-sentence motion. Therefore, Appellant’s
sole issue is waived.
Our Rules of Appellate Procedure provide: “Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”
Pa.R.A.P. 302(a). “[I]ssues challenging the discretionary aspects of
sentencing must be raised in a post-sentence motion or by raising the claim
during the sentencing proceedings. Absent such efforts, an objection to a
discretionary aspect of a sentence is waived.” Commonwealth v. Watson,
835 A.2d 786, 791 (Pa. Super. 2003) (citations omitted). “Moreover, a party
cannot rectify the failure to preserve an issue by proffering it in response to a
Rule 1925(b) order.” Commonwealth v. Monjaras-Amaya, 163 A.3d 466,
469 (Pa. Super. 2017) (citations and emphasis omitted). This Court will not
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overlook waiver simply because the trial court substantively addressed the
issue in its 1925(a) opinion. See Commonwealth v. Melendez-Rodriguez,
856 A.2d 1278, 1287-89 (Pa. Super. 2004) (en banc).
Upon review, we find our decision in Commonwealth v. Nischan, 928
A.2d 349 (Pa. Super. 2007) to be dispositive. In Nischan, we held that the
appellant failed to preserve his discretionary sentencing claim for two reasons.
We explained:
First, Appellant had no right to file a pro se motion because he
was represented by counsel. This means that his pro se post-
sentence motion was a nullity, having no legal effect. Second, the
motion, in a rather unclear fashion, sought to withdraw the guilty
plea and to challenge the validity of the mandatory minimum
sentence. It did not challenge any discretionary aspects of
sentence. While the motion did at one point mention the word
“excessive,” it did so in the context of contesting the mandatory
second strike penalty. The motion certainly did not state a
challenge to the discretionary aspects of sentencing “with
specificity and particularity” as is required by Pa.R.Crim.P.
720(B)(1)(a).
Id. at 355 (citations omitted). Accordingly, we found the appellant’s
discretionary claim to be waived. Id.Likewise, Appellant in the instant case filed two pro se post-sentence
motions while he was represented by Attorney Driscole. Pennsylvania courts
disfavor hybrid representation,2 and both motions were nullities, having no
legal effect. Nischan, 928 A.2d at 355 (citing Commonwealth v. Piscanio,
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2 “[T]he policies that advise against allowing hybrid representation are well
established.” Commonwealth v. Jette, 23 A.3d 1032, 1041 (Pa. 2011).
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608 A.2d 1027, 1029 n.3 (Pa. 1992)). See also Commonwealth v. Jette,
23 A.3d 1032, 1044 (Pa. 2011) (“[W]e reiterate that 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.”);
Commonwealth v. Glacken, 32 A.3d 750, 752 (Pa. Super. 2011) (“Pursuant
to our Rules of Appellate [P]rocedure and decisional law, this Court will not
review the pro se filings of a counseled appellant.”) (citations omitted); and
Pa.R.A.P. 3304.
Furthermore, in his pro se post-sentence motions, Appellant did not
claim that his sentence was excessive. See Appellant’s pro se Motion for
Reconsideration, 6/13/18; Appellant’s pro se Motion for Reconsideration,
7/5/18. Instead, Appellant stated in both pro se motions that his sentence
was “unduling” [sic] and he “requests a lesser sentence or be qualified for
boot camp.” Id. On this record, and consistent with Nischan, we conclude
that neither of Appellant’s pro se motions “state a challenge to the
discretionary aspects of sentencing ‘with specificity and particularity’ as is
required by Pa.R.Crim.P. 720(B)(1)(a).” Nischan, 928 A.2d at 355.
In sum, Appellant’s sentencing claim is waived because he failed to
preserve it at sentencing3 or in a post-sentence motion. We therefore affirm
the judgment of sentence.
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3 See N.T., 6/1/18, at 1-17.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/19
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